Kentucky - Legal Animal Abuse Or Weak Protection Laws?

Kentucky - Legal Animal Abuse Or Weak Protection Laws?

Article | 106 KY. L. J. ONLINE | May 8, 2018

Gabrielle J. Fulton[1]

“Mankind’s true moral test, its fundamental test (which lies deeply buried from view), consists of its attitude towards those who are at its mercy: animals.”[2]

I. Introduction: A Slap on the Wrist

Imagine discovering a critically mangled, grossly underweight eight-month-old dog on the side of the road. Envision the dog with multiple gunshot wounds to the face, left in this condition to die an excruciatingly tortuous death over six–seven days. This was the case with Lad, a border collie from Daviess County, Kentucky.[3] Lad was shot in the mouth several times before finally running away from home.[4] By the time he was found, approximately one week after he was intentionally mutilated, a massive infection had set in and most of his lower jaw had to be removed.[5] After a grueling four-month recovery battle, Lad passed away.[6] Matthew Wade Beauchamp, Lad’s owner, was charged with felony torture of a dog.[7] However, a few days before Beauchamp’s trial was to begin, the Commonwealth’s Attorney for Daviess County accepted a plea agreement.[8]The prosecution did not believe they could secure a conviction in Beauchamp’s trial due to Kentucky’s problematic felony torture statute, Ky. Rev. Stat. Ann. § 525.135, which defines “torture” as “the intentional infliction of or subjection to extreme physical pain or injury, motivated by an intent to increase or prolong the pain of the animal.”[9] Kentucky prosecutors have highlighted the weakness of the statute because a conviction of torture should be attainable whenever an animal is subjected to extreme physical pain, injury, and suffering regardless of whether it was “motivated by an intent to increase or prolong the pain of the animal”.[10] Matthew Beauchamp was responsible for the inhumane and unimaginable death of Lad and walked away with no jail time.[11]Unfortunately, this is a common occurrence in Kentucky. In another example, Larry Browning was charged with animal cruelty after forty-nine horses were found deceased on his property in Pendleton County.[12] Like Beauchamp, Browning walked away with no jail time.[13]  In addition, the plea agreement raised doubt as to the effectiveness in preventing Browning from having other horses in his possession.[14] These are just two examples of the inadequate protections afforded to the animals of Kentucky. Not surprisingly, for the eleventh year in a row, Kentucky has ranked last in the Animal Legal Defense Fund’s (ALDF) Animal Protection Laws Rankings.[15]This Note begins by recognizing the incongruence between society’s declarations and commitment for its animals versus its actual treatment of animals. Section two addresses the need to shift towards more humane standards and examines the reasons animals receive abysmal protections in the legal system. Section two also addresses the need to recognize animals as more than mere “property” and explores the correlation between animal cruelty and human violence. Section three identifies Kentucky as having the weakest animal protection laws in the nation. Section three also introduces the ALDF’s annual study. It compares and contrasts Kentucky’s animal protection statutes with those of Illinois (the state with the highest ranking in the ALDF’s study for the past decade). Section three outlines Illinois’ definitions and standards of care for animals, its felony provisions, and its broad enforcement authority as compared to those of Kentucky. Section four seeks to ascertain the causes for the harsh treatment of animals in Kentucky. This Section addresses the state’s legislative processes and procedures and explores how local governments may be sending the message that animal protection is unimportant in Kentucky. Finally, in Section five, this Note pleads for change in Kentucky’s laws to improve overall animal welfare by strengthening current laws.

II. Shifting Society’s Perception of Animal Protection

Americans love their animals. A majority of households contain at least one animal.[16] Recent surveys demonstrate that 68 percent of United States households own a pet, equivalent to 84.6 million homes.[17] In 2016, Americans spent an estimated $66.75 billion dollars on their pets.[18] One poll found that half of all American pet owners consider their pets as much a part of the family as any person in the household.[19] In 2011, 51% of those polled said that they purchase holiday gifts for their pet, a relatively stable number.[20]We live in a society that appears to care deeply about animal welfare. However, our society’s actual treatment of animals often stands in stark contrast to its declarations about our regard for their ethical status. As one scholar states, “[c]ruelty is incompatible with a caring, moral society where empathy is a venerable quality.”[21] Nonetheless, society has the potential to better animals’ lives by enacting and enforcing higher standards for them.[22]

II.A.  Animals as Mere Property

One of the biggest hurdles in protecting animals in the legal system is that they have historically been considered personal property under the law.[23] Animals are viewed as commodities that we own and have no value other than that which we, as property owners, assign to them.[24] This means, among other things, that laws do not recognize an animal as a victim to a crime, and thus an animal’s suffering or harm is not seen as being compensable.Regarding domestic animals, a person may have “as absolute a dominion and property as over any other useful and valuable chattel.”[25] With respect to wild animals, property may be acquired by possession of the animal or by ownership of the land on which the animal is found.[26] Thus, the property status of animals renders any balancing required under the humane treatment principle or animal welfare laws useless, because what is really being balanced are property owners’ interests against the interests of their animal property.[27]  This balance will rarely, if ever, end in the animal’s favor.[28]Gary Francione, a distinguished animal theorist, states that “[b]ecause animals are merely property, we are generally permitted to ignore their interests and to inflict the most horrendous pain and suffering or death on them when it is economically beneficial to us.”[29] For example, in Kentucky, it is legal and considered humane to terminate a dog’s life by gunshot to the head. In Ammon v. Welty, the Ammons inhabited sixty-three acres of farmland, where they let their pet dog, Hair Bear, roam the property without restraint.[30]An annoyed neighbor picked up Hair Bear and delivered him to the county dog warden, where Hair Bear was shot and killed.[31] The warden testified he routinely destroyed impounded dogs by shooting them in the head.[32] While the Ammons argued that Hair Bear was valued as a beloved and devoted pet, the court held that Hair Bear had no market value.[33] In its holding, the court stated, “[t]he affection an owner has for, and receives from, a beloved dog is undeniable. It remains, however, that a dog is property, not a family member.”[34] Additionally, the court stated that “[a]lthough dogs are considered property, the protection afforded them under the law is uniquely limited.”[35]Modern courts recognize that personal pets generally do not fit within the traditional property law principles.[36] A pet fits somewhere between a person and a piece of personal property.[37] For decades, animal activists have tried to chip away at this property status as a means of attaining some kind of rights for animals.[38] It is up to legislatures to prescribe regulations abridging the recognition of animals as mere property. Recognizing animals as more than mere property and providing more protections to animals would not only benefit animals, but would promote a more caring, less violent society.

II.B. Link Between Animal Abuse and Human Violence

Several studies demonstrate enhanced animal protection laws could significantly impact society by decreasing human violence. As one scholar states, “[t]he [l]ink between violence to human and animal victims is undeniable.”[39] Cruelty to animals has been associated directly or indirectly with violent crime, including sexual homicide, homicide, and rape..[40]  Large numbers of violent criminals begin as animal abusers.[41] One study showed that 75% of prison inmates charged with violent crimes had an early record of animal cruelty.[42] Additionally, adults who abuse animals commonly abuse their spouses and their children, as well as elderly people for whom they are caring.[43] The FBI now officially recognizes a link between animal abuse and violent crime and has begun collecting data on animal abuse.[44] John Thompson, deputy executive director of the National Sheriffs’ Association states, that “[i]f somebody is harming an animal, there is a good chance they also are hurting a human.”[45] Thompson went on to say that “[i]f we see patterns of animal abuse, the odds are that something else is going on.”[46] Putting an end to animal cruelty has the potential to drastically reduce the percentage of violent crime.Anthropologist Margaret Mead once noted, “[o]ne of the most dangerous things that can happen to a child is to kill or torture an animal and get away with it.”[47] Take Andrew Golden for example. The 11-year-old ambushed and killed three kindergarten kids as well as two adults.[48] Golden trained by shooting dogs.[49] Kip Kinkle, a 15-year-old, killed both his parents and shot 24 children at his school, killing two.[50] Kinkle tortured animals as a pastime.[51] Michael Carneal, 14, killed three girls at a prayer meeting and shot five others.[52] He threw cats into bonfires.[53] Finally, Luke Woodham, 16, killed his mother and three children and shot seven more.[54] He tortured his own dog to death.[55] According to a 2014 study, 43-50% of school shooters started out by torturing animals.[56]Children are naturally born with a love for animals, but factors in the home environment play a major role in creating violent individuals.[57] Domestic violence has been found to be closely associated with animal cruelty.[58] As Dr. Harold Hovel notes in his article about animal abuse and human violence, “[d]omestic violence is the breeding ground for future violent and non-violent crimes.”[59] Astonishingly, the connection between child abuse and animal abuse is 70-80%.[60] Children that have been exposed to domestic violence at a young age are seven to nine times more likely to participate in animal cruelty, and are also more likely to abuse their own children in the future.[61] Not surprisingly, some states have implemented statutes increasing penalties for abuse committed in front of a minor. [62]As studies have repeatedly shown, children exposed to domestic violence resort to animal cruelty as an easy way of “getting back at the world.”[63] Animal cruelty is one of the first reactions they have to their abuse experience.[64] Fighting animal cruelty can save many lives, prevent human and animal suffering, help protect children and elders from domestic violence, and lead to far less human violence overall.[65]

III. The Pinnacle of Animal Protection

On January 17, 2015, in Frankfort, Kentucky, multiple children were arrested for animal cruelty after a video surfaced of the suspects forcefully kicking an aged Italian Greyhound named Opal.[66] One viewer watched, was appalled, and stated, “I mean, she went up in the air and just come [sic] down and . . . . just her little legs.”[67] Opal, who was nearly sixteen years at the time, did not offer a growl, bark, or even a sniff.[68] In fact, she was loved by the community, and was known not to have a mean bone in her body.[69] When Susan Malcomb watched the video online, she was disturbed by the joy she saw in the kids’ faces as they continued to brutally kick Opal.[70] Although Franklin County Sheriff Pat Melton has announced that the juveniles in the video will be charged, he urged citizens who were outraged to use their passion and encourage Kentucky lawmakers to enact more effective animal cruelty laws.[71]. For Susan Malcomb, and others like her, the lack of swift prosecution is only the beginning of the systematic disappointment that she will experience. In the unlikely event the children are even convicted of animal cruelty, Kentucky’s appropriate criminal charge, the maximum penalty they will face is “one (1) year in jail and/or a fine not exceeding $500” as a Class A misdemeanor.[72]

Though the country as a whole could benefit from enhanced animal protection laws, the state of Kentucky arguably needs the most work in fostering animal welfare.  According to a recent study conducted by the ALDF, Kentucky ranks last out of the 50 states for its animal protection laws, for the eleventh year in a row.[73] Kentucky’s sentencing policies and statutes reflect its deficiency as the worst ranked state for animal protection law. In response to the Frankfort incident, Sheriff Milton proclaimed, “I know we just ranked 50th in the nation with some of the worst animal cruelty laws. Let’s use our passion and harness all the energy we’ve mustered for this and use it to change laws and make it easier to investigate and prosecute.”[74]In order to devise its annual report, the ALDF comprehensively surveys animal protection laws of the Unites States and territories.[75] The report assesses the strength of each jurisdiction’s animal protection laws and assigns a score based on fifteen different categories of animal protection.[76] These categories include: general prohibitions, penalties, exemptions, mental health evaluations and counseling, protective orders, cost mitigation and recovery, seizure/impoundment, forfeiture and post-conviction possession, non-animal agency reporting of suspected animal cruelty, veterinarian reporting of suspected animal cruelty, law enforcement policies, sexual assault, fighting, offender registration, and “ag gag[77]” legislation.[78]For the past eleven years, ALDF has ranked Kentucky last out of the 50 states for its animal protection laws.[79] This is for a number of reasons, including:

• Kentucky’s only felony provisions are for cruelty and fighting, both against only select animals[80];

• Kentucky does not have any felony provisions for neglect or abandonment[81];

• the state’s animal protection statutes contain inadequate definitions and standards of basic care[82];

• there are no increased penalties when abuse is committed in the presence of a minor or involves multiple animals[83];

• Kentucky does not require mental health evaluations or counseling for offenders[84];

• there is no statutory authority to allow protective orders to include animals[85];

• there is no cost mitigation or recovery provisions for impounded animals and there is no court ordered forfeiture provisions[86];

• there are no restrictions on future ownership or possession of animals following a conviction[87];

• there are no provisions for select non-animal-related agencies/professions to report suspected animal abuse[88];

• veterinarians are prohibited from reporting suspected cruelty or fighting[89]; humane officers lack broad law enforcement authority[90];

• there are no provisions for sexual assault;[91] and

• there are inadequate animal fighting provisions.[92]

Illinois, in contrast, has earned the highest ranking in ALDF’s report for ten consecutive years.[93] Though the state still has room for improvement, Illinois’ animals are protected by a full range of statutory protections, including, but not limited to: numerous felony provisions, increased penalties for repeat abusers, and mandatory health (psychiatric) evaluations.[94] Illinois’ Humane Care for Animals Act (the “Act”) is found in Chapter 510, Act 70 of I.L.C.S.[95] In identifying the weakness, loopholes and other shortfalls of the animal protection laws in Kentucky, one need look no further than their close neighbor Illinois to compare.

III.A.1 Illinois Statutes Provide Adequate Definitions/Standards of Care

One strength of Illinois’ animal protection laws is the definitions and standards of care implemented in the Act.[96] Further, Illinois’ anti-animal cruelty laws provide protection for all animals, not just companion animals, such as cats and dogs.  An “animal” is defined as “every living creature, domestic or wild, but does not include man.”[97] The Act goes on to define owner’s duties in 510 Ill. Comp. Stat.  Ann. 70/3 and mandates each owner provide for his animals sufficient, good quality, wholesome food and water; adequate shelter and protection from the weather; veterinary care and humane care and treatment.[98]  Section three goes on further to define the proper tethering of a dog outdoors.[99]Additionally, the Act goes on to define humane euthanasia[100], proper disposition of seized animals[101], cruel treatment[102], aggravated cruelty[103], animal torture[104], and many other aspects of animal cruelty. Providing clear definitions and standards of care supports the backbone of the animal protection laws in Illinois, however, the state takes the protections of animals even further.

III.A.2 Illinois Contains Numerous Felony Provisions for Animal Cruelty

Another reason Illinois ranks so highly in ALDF’s rankings is the state’s multitude of felony provisions available for offenders.[105] The Act contains felony provisions for cruelty, neglect, fighting, abandonment, and sexual assault.[106]  It also contains increased penalties for offenders with prior convictions of animal abuse or animal hoarding.[107] The prohibitions are not limited to select species but apply to “every living creature, domestic or wild.”[108] The Act also includes provisions for psychological counseling, and even mandates it on certain occasions.[109]The requisite anti-cruelty provisions are listed at 510 Ill. Comp. Stat. Ann. 70/3.01, 3.02, and 3.03. Under Section 3.0 of the Act, a person convicted of aggravated cruelty is guilty of a Class 4 felony.[110] A second or subsequent violation is a Class 3 felony.[111] Under Section 3.03, a person convicted of animal torture is guilty of a Class 3 felony.[112] Finally, a person who uses an animal in entertainment in violation of certain subsections of 70/4.01 is guilty of a Class 4 felony for the first offense, with subsequent offenses being a Class 3 felony.[113]Although it is not part of the Act, 720 Ill. Comp. Stat. Ann. 5/12-35 makes sexual conduct or sexual contact with an animal guilty of a Class 4 felony.[114] If the offender violates this section in the presence of a person under 18 years old or causes the animal to suffer serious physical injury or death, the offender is guilty of a Class 3 felony.[115] In addition, the court is permitted to order the defendant not to reside in any household where animals are present, forfeit all animals, and undergo a psychological evaluation or counseling.[116]Though a first offense for cruel treatment under Section 3.01 of the Act is a misdemeanor, courts take first offender violations seriously. For example, in People v. Thornton, the defendant was convicted under Section 3.01 as a first offense and sentenced to ten days incarceration, two years probation, 200 hours of community service, and restitution totaling $3,572.83.[117]Under Illinois law, an offender who is found guilty of a misdemeanor on multiple occasions often faces enhanced punishment and may even be guilty of a felony for subsequent violations.[118] For example, a first offense under Section 3.01 is a misdemeanor, however a second or subsequent conviction of cruel treatment to an animal rises to a Class 4 felony.[119] Additionally, upon conviction for violating this Section and many others, the court may order a psychological or psychiatric evaluation and is even required to do so if the offender is a juvenile or a companion animal hoarder.[120] Under Section 4, no person may sell, barter, or give away any rabbit, baby chick, duckling or other fowl which has been subject to artificial coloring.[121] Baby chicks or ducklings may not be sold, given away as pets or novelties, or awarded as prizes.[122] “A person convicted under this Section is guilty of a Class B misdemeanor”; however, “[a] second or subsequent violation is a Class 4 felony, with every day that a violation continues constituting a separate offense.”[123] The repeat offender provisions in the Illinois serve as a deterrent to future abuses.One of Illinois’ many strengths in its animal protection laws include its numerous options of felony provisions. Additionally, Illinois statutes are strong because they contain provisions enhancing the charges for repeat offenders, give courts the option, and sometimes require, psychological counseling for offenders. It is also important that the law is inclusive of prohibitions to all animals, not just companion animals. These are just a few examples of why Illinois ranks so highly with regard to its animal protection laws.

III.A.3 Illinois Has Broad Enforcement Authority

Illinois statutes provide for broad enforcement and wide-ranging authority to protect its animals. For example, law enforcement officials, state’s attorneys, and animal control officials all have the authority to investigate humane care allegations.[124] Pursuant to 510 Ill. Comp. Stat. Ann. 70/10:Upon receiving a complaint of a suspected violation of this Act, a Department investigator, any law enforcement official, or an approved humane investigator may, for the purpose of investigating the allegations of the complaint, enter during normal business hours upon any premises where the animal or animals described in the complaint are housed or kept, provided such entry shall not be made into any building which is a person’s residence, except by search warrant or court order.[125]Common complaints under this section may include violations for owner’s duties, animal hoarding, cruel treatment, aggravated cruelty, animal torture, confinement in motor vehicle, and depiction of animal cruelty.[126] Any law enforcement officer making an arrest under Sections 3.01–3.03 may lawfully take possession of some or all of the companion animals in the possession of the offender.[127] Additionally, an officer may order security for companion animals and animals used for fighting purposes.[128]An example of an officer’s broad authority is found in Thornton. In that case, officers responded to complaints of a dog that had been barking continuously inside of an apartment for several days.[129] The apartment manager informed the police that she had been inside the apartment, where she found a dog inside of a cage so small that the dog could not stand up.[130] She stated that the bottom of the cage was covered in urine and feces, there was no sign of food or water, the dog was very thin, had blood on its paws, and was shaking and continuously making whimpering and yelping sounds.[131]Based on this information, the officers immediately entered the defendant’s apartment to “check on the well being of the dog.”[132] The defendant argued that the officers unlawfully entered his apartment without a warrant.[133] The defendant argued that Section 10 of the Act specifically prohibits entry into a resident without a warrant to investigate a complaint regarding animal cruelty.[134] The court held that the police were justified in entering the apartment without a warrant because of an emergency regarding the condition of the dog.[135] The court stated that the language in Section 10 of the Act, which states that “entry shall not be made into any building which is a person’s residence, except by search warrant or court order,” is “plainly intended to make it clear that the extraordinary exception to the general warrant requirement for investigatory searches of nonresidential premises set out in Section 10 does not extend to residential premises.”[136] The court found nothing in Section 10, which suggests “that this language means that the few specifically established and well-delineated exceptions to the general warrant requirement for entry into residential premises are not applicable under the Act.”[137]In addition, the court found that the emergency exception of the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to situations involving the mistreatment of animals.[138] The court held that:In this case, the totality of the circumstances known to the officers at the time of their entry into defendant's apartment was sufficient for the officers to reasonably believe that an emergency was at hand which required their immediate assistance. The tenant in the apartment above defendant's apartment told the officers that a dog had been yelping in defendant's apartment continuously for two or three days. Efforts by Nissen, the manager of the apartment complex, to contact defendant were unsuccessful. Thus, the officers knew that the yelping had persisted for several days, but did not know when, or if defendant might return to his apartment to tend to the distressed animal.[139]Another capacity in which law enforcement is delegated broad authority to act on animal cruelty is found under Section 7.1 of the Act. Under that Section, an animal control officer, law enforcement officer, or investigator who has probable cause to believe that any animal has been unlawfully confined in a motor vehicle has the authority to enter the vehicle by “any reasonable means under the circumstances after making a reasonable effort to locate the owner or other person responsible.”[140] Section 7.1 therefore is important because it allows officers to rescue animals who are trapped within automobiles.

III.B. The Worst of the Worst – Kentucky

As previously mentioned, Kentucky’s deficiency in statutes and sentencing policies reflect its bottom-tier ranking in the ALDF’s annual study. Kentucky’s animal protection statutes are contained in Chapter 525 of the Kentucky Revised Statutes. Astonishingly, Chapter 525 is titled: “Riot, Disorderly Conduct, and Related Offenses.”[141] Chapter 525 includes offenses such as loitering, public intoxication, and unlawful assembly [142] The chapter associates the highest form of animal cruelty with “riot, disorderly conduct, and related offenses” as if animal cruelty in its highest form is simply disorderly conduct.

III.B.1 Kentucky Lacks Adequate Definitions/Standards of Care

Kentucky’s statutes require clearer definitions and currently fail to address the most basic aspects of animal suffering.[143] For example, Ky. Rev. Stat. Ann. § 525.125 fails to include an express requirement that “shelter” must be provided for an animal.[144] Although failure to provide adequate shelter in extreme temperatures might result in a charge of “cruel neglect,” the case would be more difficult to prove.[145] Additionally, it is imperative that “shelter” in cold weather is defined as to allow the animal to maintain its natural body temperature.[146] In contrast, while the Illinois statute does not contain a fixed definition for “shelter,” 510 Ill. Comp. Stat. Ann. 70/3 provides that shelter must be adequate to protect the animal from weather conditions.[147] Because Kentucky law lacks basic care definitions, many counties have trouble prosecuting things as simple as the need to provide shelter for an animal.[148]“Animal”, as defined under Ky. Rev. Stat. Ann. § 446.010, includes “every warm-blooded living creature except a human being.”[149] This definition leaves cold-blooded animals, such as reptiles, fish and amphibians completely unprotected. In November 2016, Lexington-Fayette Animal Care & Control (LFACC) worked on a case in which the owners of six snakes moved out and abandoned their pets inside the home.[150] When LFACC investigated the premises, only four of the snakes were found alive.[151] They were underweight and emaciated, had no water or heat source, and had all suffered from upper respiratory infections and mouth rot.[152] LFACC was unable to bring charges against the previous owners of the snakes due to Ky. Rev. Stat. Ann. § 446.010’s failure to identify reptiles as “animals.”[153]

III.B.2 Kentucky Lacks Adequate Felony Provisions

Kentucky limits felony penalties to cruelty and neglect in very exclusive circumstances. Penalties are further limited to specific species of animals.[154] Any act of cruelty or abuse against an animal (with the exception of dog fighting and torture of a cat or dog resulting in serious physical injury or death), no matter how extreme, is a misdemeanor and cannot rise to the level of a felony until a subsequent offense is committed.[155] Under Ky. Rev. Stat. Ann. § 525.125, cruelty to animals in the first degree is a Class D felony.[156] However, this section is severely restricted and only applies “whenever a dog is knowingly caused to fight for pleasure or profit” or when “any person who knowingly owns, possesses, keeps, trains, sells, or otherwise transfers a dog for the purpose of dog fighting.”[157] In other words, this provision relates to only dogs and excludes all other animal fighting. Kentucky’s torture statute is similarly restrictive. Torture of only a dog or cat is simply a misdemeanor and only rises to a Class D felony for subsequent offenses if “the dog or cat suffers physical injury as a result of the torture” or “if the dog or cat suffers serious physical injury or death as a result of the torture.”[158]Cruelty to any animal other than a dog or cat is just a misdemeanor in Kentucky. A person is guilty of animal cruelty in the second degree if he or she intentionally or wantonly subjects an animal to mistreatment through abandonment; participates in causing it to fight for pleasure or profit; mutilates, beats, tortures an animal other than a dog or cat;[159] torments, fails to provide adequate food, drink, space, or health care; or kills any animal other than a domestic animal killed by poisoning.[160] The maximum sentence for cruelty to animals in the second degree is a mere twelve months in jail, and fines do not exceed $500.[161] Torture of a dog or cat is a Class A misdemeanor for first offenders and a Class D felony for each subsequence offense if the dog or cat suffers physical injury as a result of the torture, and a Class D felony if the dog or cat suffers serious physical injury or death as a result of the torture.[162]Furthermore, offenders of animal cruelty laws face minimal punishment in Kentucky. For example, in United States v. Chamness, nine dogs died as a result of being abandoned in severely uninhabitable living conditions provided by the defendant.[163] The carcasses of the dogs were found in various states of decomposition at the defendant’s residence.[164] Four of the dogs’ remains were found sealed inside of a storage container containing air holes in the lid to facilitate breathing.[165] Because of Kentucky’s limited felony provision, the defendant did not face a single felony charge for any of the cold-hearted, inhumane deaths.[166] The defendant was found guilty of nine counts of cruelty to animals in the second degree.[167] However, the judge imposed a sentence of merely two years probation, demonstrating the sort of minor penalties that animal abusers face in Kentucky.[168]In contrast to Kentucky’s sole felony provision, Illinois contains felony penalties for cruelty, neglect, fighting, abandonment and sexual assault.[169] Astoundingly, Kentucky is one of nine states where having sex with animals is not a crime.[170] Unless a sexually assaulted animal is physically injured, the offender cannot be adequately prosecuted.[171] Additionally, Illinois’ principal statutory protections apply to most animals, compared to Kentucky’s felony provision confined to solely dog fighting.[172] Illinois is not the only state with superior felony provisions. Oregon, Maine, California and Rhode Island, ALDF’s top ranking states, all contain principal protections applying to most animals.[173] Kentucky should take note of these exceptional provisions, as Kentucky’s felony provisions are only available for cruelty and fighting, both against only select animals.[174]

            III.B.3 Kentucky’s Humane Officers Lack Broad Enforcement Authority

Pursuant to Ky. Rev. Stat. Ann. § 436.605, only animal control officers and agents of humane societies maintain the powers of peace officers, except for the power of arrest, “for the purpose of enforcing the provisions of the Kentucky Revised States relating to cruelty, mistreatment, or torture of animals, provided they possess the qualifications required under KRS 61.300.”[175] This statute provides that when an animal control officer or agent believes an act of cruelty, mistreatment, or torture of animals is being committed, after the officer makes an oath of such belief, the judge shall issue a search warrant to search the premises.[176] Pursuant to the statute, “[i]f an animal control officer or an officer or agent of a society or association for the prevention of cruelty to animals finds that an act of cruelty, mistreatment, or torture of animals is being perpetrated, the officer or agent shall summon a peace officer to arrest the offender or offenders and bring them before the court for trial.”[177]Moreover, many states place a statutory duty on veterinarians to report suspected cruelty.[178] Fifteen states require veterinarians to report suspected abuse.[179] Some states allow veterinarians to report suspected cruelty.[180] Twenty-seven states provide immunity to veterinarians who report suspected animal abuse.[181] However, in Kentucky, veterinarians are prohibited from the voluntary reporting of suspected animal cruelty or fighting without a waiver from the client, court order, or subpoena.[182] Thus, a veterinarian is essentially required to be complicit in acts of animal abuse or neglect unless an investigation is somehow initiated.Kentucky law contains no provisions requiring any non-animal-related agencies or professionals to report suspected animal cruelty, has insufficient humane agent provisions, and has no duty mandating peace officers to execute animal protection laws.

IV. Reasons Animals Are Unprotected In Kentucky

In order to begin the process of implementing change and enhancing the protections provided to Kentucky’s animals, one must first ascertain the reasons for the state’s inadequate laws. A number of Kentucky’s legislators and humane officers have stated that Kentucky’s legislative process and the inadequacy of local governments to dedicate resources to animal protection, among other things, significantly contribute to the state’s poor stance on animal protection laws.[183]

IV.A. Legislative Process

Animal welfare bills are extremely difficult to move through legislation.[184] An average of 5-9 years is generally required to move animal bills through legislation.[185] One reason for this is that animals are in competition with other critical human issues, which are pertinent in Kentucky.[186]Vicki Deisner, the Midwest Legislative Director for the ASPCA, believes that the poverty statistics in the state and the effort of Kentucky people to pursue better livelihoods, decent salaries and community services are the types of issues that animals are competing with.[187] Animals have an increased opportunity of protection if animal bills are connected somehow with human issues, such as domestic violence.[188] Furthermore, parts of Kentucky maintain the traditional view that animals are property to be “utilized.”[189] Some legislatures reflect these same views and may not view animals as important enough to protect beyond current laws written to protect property.[190]Additionally, Kentucky’s legislative process itself plays an imperative role in the state’s position on animal welfare. In Kentucky, the Generally Assembly meets annually.[191] In even-numbered years, sessions may not exceed sixty legislative days.[192] In odd-numbered years, session may not exceed thirty legislative days.[193] In response to House Bill 143, which was recently introduced to ban the sexual assault of a pet dog or cat, Daisy Olivo, spokesman for former House Speaker Jeff Hoover, said that although Hoover is against bestiality, he strongly believes that the short, 30-day legislative session should be reserved for “serious, economy-related bills.’”[194]The length of Kentucky’s session is short compared to other states.[195] For example, Ohio and Michigan have no limits on their session length.[196] States that have no limit on the length of their legislative session, such as Ohio and Michigan, have an ample amount of time to realize priorities.[197] These states have time to present bills and to hear out all interested parties.[198] Thirty or sixty days, in contrast, is simply not enough time to get things accomplished.Furthermore, animal welfare may be viewed as a progressive movement within the broader social sector. Lobbying groups in Kentucky have had a significant impact on animal protection legislation. Certain groups, including hunting, farming, and dog breeding groups, lobby extensively against animal welfare legislation.[199] According to some legislators, these groups fear a potential “slippery slope” if animal welfare laws are passed.[200] In other words, these groups are concerned about possible limitations on their activities. Hunting groups have opposed animal welfare bills for fear they could lead to a ban on hunting, while farmers have expressed concern they could run afoul of bestiality laws while artificially inseminating livestock.[201]Gender differences may also contribute to the lack of animal protection laws getting moved through legislation. Although the role gender plays in enacting legislation would greatly benefit from further research, it is important to note its impact. As Katie Brophy argues, “male legislators by [and] large have little interest whatsoever in animal protection issues.”[202]“Anecdotal evidence suggests that men are a harder sell when it comes to promoting awareness of animal welfare issues.”[203] Studies demonstrate that women are more sympathetic than men towards animal welfare and are less supportive of animal research.[204] Additionally, studies have shown that significantly more women than men contribute their work to animal welfare organizations and to work in animal law.[205]Because women are arguably more progressive when it comes to animal welfare issues, the number of men in the Kentucky legislature may be concerning. For example, in 2016 only 15.9% of Kentucky’s legislature consisted of women.[206] This number is down from 2015, in which 16.7% of the seats consisted of women.[207] The number of women on the Kentucky legislature has been consistently declining since 2012.[208]In improving Kentucky’s stance on animal welfare, amending the legislative process and procedures and contributing more energy to animal law is a crucial step in the progression.

IV.B. Local Governments Send Message Animal Protection is Unimportant

By failing to adequately implement and address local animal laws, local governments are also sending the message that animal welfare is not an important issue. Many animal welfare advocates agree that Kentucky’s animal shelter situation is a starting point for addressing the state’s inadequate animal protections. Over 50% of Kentucky’s animal shelters are not in compliance with animal shelter laws.[209] In one-third of Kentucky’s animal shelters, it is debatable whether or not they are even in compliance with animal cruelty laws.[210]Many local governments are unwilling to spend money on appropriate shelters. In a recent study conducted by veterinarian students from Lincoln Memorial University College of Veterinary Medicine, the students found that personnel at over 90% of Kentucky shelters identified the lack of funding from county governments to be a major problem in adequately operating shelters.[211] A number of issues arise from the lack of funding by local governments.Without proper funding, shelters are unable to provide adequate staff to manage their operations.[212] Employees lack the basic training required to adequately care for the animals.[213] Employees are unable to attend training because the cost of travel to receive training is prohibitive.[214] For these reasons, many shelters rely on volunteers or inmates to care for the animals.[215] Such lack of permanent well trained employees results in inconsistent and undependable staff to care for the animals.[216]Additionally, without adequate funding, local shelters do not have the resources to conduct research, write proposed changes, and lobby legislation. In an interview with Susan Malcomb, President of the Lexington Humane Society, Malcomb stated that if the biggest adoption agency in central Kentucky, the Lexington Humane Society, cannot free up people to lobby legislation, no one else likely has the ability to participate in legislation either.[217]The state’s animal overpopulation problem could easily be addressed with proper funding. With adequate funds, shelters could implement efficient spay and neuter programs and decrease the number of animals that wind up in shelters. Numerous studies have shown that successful spay/neuter programs result in fewer animals ending up in shelters “leading to a significant reduction in the overall cost of sheltering unwanted or stray animals and improvement in overall public health and safety.”[218]Furthermore, local governments do not provide adequate enforcement in promoting animal welfare. Most county attorneys utilize part-time positions on top of running their own private practice.[219] This essentially means that county attorneys will take care of the required business that relates to the county, and will put off matters relating to animal cruelty, investigation, or prosecution. [220]Studies show that self-regulation by counties concerning compliance with shelter laws is insufficient “and that additional enforcement provisions are necessary to ensure compliance cross [sic] the state.”[221] In order to address the statewide animal welfare issue, it is imperative that counties address animal welfare issues. By not taking animal welfare issues seriously, local governments are sending the message that animal protection laws are insignificant and unimportant. If local county governments are unwilling to implement adequate animal welfare regulations, then trying to effect change on a statewide level is virtually impossible.[222]

V. Conclusion: A Slippery Slope

Recognition of the correlation between animal abuse and the resulting tendency for disregarding human suffering must be recognized in Kentucky. A failure of laws to protect animals from abuse and neglect allows this depraved behavior to go unchecked.  As previously mentioned, there is a distinct correlation between those who abuse animals and those who pose a threat to other humans. Punishing animal offenders protects humans from violence. In order to catch up to society’s values, Kentucky must provide more adequate protections to animals. The top tier states in ALDF’s rankings, among others, have felony provisions for cruelty, neglect, fighting, sexual assault, and abandonment, while Kentucky law contains only a single animal abuse felony for dog fighting.[223]In the rare circumstance an offender is convicted, Kentucky courts are not required to seize the animal from the abuser.[224] Courts are not required to restrict future ownership of animals after a conviction.[225] Moreover, courts do not mandate mental health evaluations for animal abusers.[226] In contrast to Kentucky, Illinois’ animal cruelty statute allows courts to order a convicted person to forfeit the animal.[227] A court may also order that the convicted person not own any other animals for a reasonable period of time.[228] Other Illinois statutes provide that courts may order convicted persons to undergo psychological or psychiatrist evaluations.[229] Illinois’ torture statute mandates such evaluations.[230]The top ranked states’ statutes in ALDF’s study provide for adequate definitions and standards of care, higher penalties for repeat abusers, forfeiture of abused animals, mandatory reporting of suspected cruelty, and many more provisions that Kentucky lacks. Kentucky does not have any felony provisions for neglect or abandonment. Kentucky’s statutes contain inadequate definitions and standards of basic care.[231] Kentucky has no law that increases penalties when abuse is committed in the presence of a minor or involves multiple animals.[232] Kentucky law does not require mental health evaluations or counseling for offenders. [233]There is no statutory authority to allow protective orders to include animals.[234] There are no cost mitigation or recovery provisions for impounded animals.[235] Court-ordered forfeiture provisions are limited to certain species. [236]There are no restrictions on future ownership or possession of animals following an offender’s conviction.[237] There are no provisions granting agencies/professions immunity from reported suspected animal abuse, and in fact veterinarians are prohibited from reporting suspected animal cruelty.[238] Finally, humane officers lack broad law enforcement authority.[239]Kentucky’s current statutory stance on animal protection is unacceptable. The state’s animal protection laws could be strengthened by increasing available felony provisions, providing adequate definitions of standards of care, allow veterinarians and other professions to report suspected animal abuse, mandating mental health evaluations for offenders, among many other statutory implementations.Kentucky’s legislature must work to reverse the recognition of animals as mere property. In doing so, the legislature should take animal issues more seriously. More diversity should be encouraged in the legislature and women should be not only supported, but encouraged to take an active role in the political process. Local county governments must address inadequate shelters and provide proper funding. Spay/neuter funding could decrease the number of unwanted animals who end up in shelters, or on the streets posing a risk to public health and safety.  Kentucky must improve local county governments and their policies toward animal welfare. In order for the state to improve as a whole, it is imperative that local governments begin enhancing their regulations, otherwise change will not transpire.Kentucky has a long way to go in improving its ranking as the worst state for animal protection laws. Because of the state’s “glaring lack of adequate animal protection laws, the Bluegrass State has had the unenviable distinction as ‘best state in the country to be an animal abuser’ for [ten] years in a row.”[240] As of now, Kentucky’s laws make it difficult to seek justice. The good news is, Kentucky has nowhere to go but up.[241] 

---

[1] University of Kentucky College of Law, J.D. expected May 2018. I would like to thank my mom for instilling in me her love and appreciation for animals as well as Sable, Badger and Ruger for showing me the capacity animals have in showing love and appreciation for their rescuers. I would like to dedicate my note to all the animals that will never belong to a family and will have to face euthanasia while many more are bred to please a selfish society.

[2] Milan Kundera, The Unbearable Lightness of Being 289 (1999).

[3] Nina Golgowski, Collie Shot in Face in Kentucky Dies Four Months After Jaw Removed, Owner Charged, New York Daily News (Jun. 12, 2014, 4:15 PM), http://www.nydailynews.com/news/national/collie-shot-face-kentucky-dies-months-jaw-removed-owner-charged-article-1.1827553.

[4] Id.

[5] Id.

[6] Id.

[7] Source: Owner Charged in Shooting of Collie in Daviess Co., KY, 14 WFIE news (last visited Mar. 17, 2017), http://www.14news.com/story/25146393/indictment-in-shooting-of-collie-in-daviess-co-ky.

[8] Lad, The Arrow Fund: Targeting Animal Cruelty (Aug. 25, 2014), http://thearrowfund.org/lad/.

[9] Ky. Rev. Stat. Ann. § 525.135 (West 2017) (emphasis added).

[10] Interview with Kathryn Callahan, Kentucky State Director (Feb. 28, 2017).

[11] See Lad, supra note 8; Daniel Hurst, Pretrial Diversion in Kentucky, Hurst & Hurst, Attorneys at Law (Mar. 4, 2014), https://www.hurstandhurstlaw.com/pretrial-diversion-in-kentucky/.

[12] See Interview with Kathryn Callahan, supra note 10..; See ‘Worst case of animal abuse’ ends in probation, Cincinnati.com (Jan. 29, 2015), https://www.cincinnati.com/story/news/2015/01/28/pendleton-county-animal-cruelty/22483809/.

[13] Id.

[14] Id.; Sara Celi, 49 Dead Horses Found on Pendleton Co. Farm, FOX19 Now (last visited Mar. 17, 2017), http://www.fox19.com/story/25185880/breaking-dead-horses-found-in-pendleton-county.

[15] 2017 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund, http://aldf.org/wp-content/uploads/2018/01/Rankings-Report-2017_FINAL.pdf.; See also For 10th Year, KY Ranked Worst State in U.S. for Animal Protection Laws, WTVQ San Francisco, (January 12, 2017) https://www.wtvq.com/2017/01/12/10th-year-ky-ranked-worst-state-u-s-animal-protection-laws/.

[16]2017 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund, http://aldf.org/wp-content/uploads/2018/01/Rankings-Report-2017_FINAL.pdf.

[17] Pet Industry Market Size & Ownership Statistics, American Pet Products Association, http://www.americanpetproducts.org/press_industrytrends.asp (last visited Jan. 20, 2017).

[18] Id.

[19] Poll: Americans Consider Pets Part of the Family, Associated Press (updated June 23, 2009 at 10:50 AM), http://www.nbcnews.com/id/31505216/ns/health-pet_health/t/poll-americans-consider-pets-part-family/#.WHjqwbHMyu5.

[20] Sue Manning, AP-Petside.com Poll: Many Pets Can Expect Holiday Gifts From Owners; Toys and Treats Lead List of Favorites, Associated Press (Nov. 8, 2011), http://ap-gfkpoll.com/featured/holiday-gifts-topline.

[21] Dr. Harold Hovel, The Connection Between Animal Abuse and Human Violence, New York State Humane Association (2015), http://www.nyshumane.org/wp-content/uploads/2016/02/Connection_Animal_And_Human_Abuse.pdf.

[22] See Vicki Deisner, ASPCA, Presentation Regarding Regional Legislation and National Trends for Animal Welfare (2012).

[23] Penny Conly Ellison, Can Courts Consider the Interests of Animals? The Legal Intelligencer (Dec. 19, 2016), http://www.thelegalintelligencer.com/home/id=1202775104873/Can-Courts-Consider-the-Interests-of-Animals?mcode=1202615324341&curindex=0&slreturn=20170011191238.

[24] Gary L. Francione, Introduction to Animal Rights: Your Child or the Dog? xxiv (2000).

[25] 4 Am. Jur. 2d Animals § 3 (2017).

[26] Id.

[27] Francione, supra note 22.

[28] Francione, supra note 22 at xxiv-xxv.

[29] Francione, supra note 22 at xxv.

[30] Ammon v. Welty, 113 S.W.3d 185, 186 (Ky. Ct. App. 2002).

[31] Id.

[32] Id.

[33] Id. at 187.

[34] Id.

[35] Id.

[36] 4 Am. Jur. 2d Animals § 4 (2017).

[37] Id.

[38] See generally, Deisner, supra note 22.

[39] 2015 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund, http://aldf.org/wp-content/uploads/2015/12/Rankings-Report-2015.pdf.

[40] Animal Abuse and Human Abuse: Partners in Crime, PETA, https://www.peta.org/issues/companion-animal-issues/companion-animals-factsheets/animal-abuse-human-abuse-partners-crime/.

[41] Id.

[42] Belinda Abraham, When Kids Kill, LinkedIn (Sept. 26, 2017), https://www.linkedin.com/pulse/when-kids-kill-belinda-abraham/.

[43] Randall Lockwood, Making the Connection Between Animal Cruelty and Abuse and Neglect of Vulnerable Adults, The Latham Letter (2002), http://nationallinkcoalition.org/wp-content/uploads/2013/01/ElderAbuse-Lockwood-.pdf.

[44] Tracking Animal Cruelty, FBI (Feb. 1, 2016), https://www.fbi.gov/news/stories/-tracking-animal-cruelty.

[45] Id.

[46] Id.

[47] Hovel, supra note 21, at 14.

[48] Id. at 15.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id. at 16.

[57] Id. at 5, 12, 14.

[58] Id. at 25-29.

[59] Id. at 20.

[60] Id. at 26.

[61] Id. at 26.

[62] Child Witnesses to Domestic Violence, Child Welfare Information Gateway, 1-2, (2016), https://www.childwelfare.gov/pubPDFs/witnessdv.pdf.

[63] Hovel, supra note 21, at 14.

[64] Id.

[65] Id. at 4.

[66] Gil Corsey, Children Charged with Animal Cruelty After Viral Video Surfaces Showing Dog Kicked in Face, WDRB (Jan. 13, 2017, 6:45 PM), http://www.wdrb.com/story/34255262/children-charged-with-animal-cruelty-after-viral-video-surfaces-showing-dog-kicked-in-face.

[67] Id.

[68] Id.

[69] Id.

[70] Telephone Interview with Susan Malcomb, President of Lexington Humane Society. (Jan. 16, 2017).

[71] See 2 Juveniles Arrested in Connection to Video Showing Dog Being Kicked, LEX18, (Jan. 13, 2017, 12:22 PM), http://www.lex18.com/story/34241472/owner-upset-after-teen-kicks-dog.

[72] Ky. Rev. Stat. Ann. § 525.130 (West 2017); Animal Cruelty Laws State by State, Stray Pet Advocacy (2003), http://www.straypetadvocacy.org/PDF/AnimalCrueltyLaws.pdf.

[73] Best and Worst States for Animal Protection Laws, 2017 Report Released, Animal Legal Defense Fund (Jan. 18, 2018), http://aldf.org/press-room/press-releases/best-worst-states-animal-protection-laws-2017-report-released/.

[74] Corsey, supra note 66.

[75]ALDF Rankings, supra note 15, at 3.

[76] Id.

[77] “Ag-gag” legislation is designed to silence whistleblowers from revealing animal abusers on industrial farms by criminalizing acts related to investigating daily activities on industrial farms, such as “recording, possession or distribution of photos, video and/or audio at a farm.” What Is Ag-Gag Legislation?, ASPCA, http://www.aspca.org/animal-cruelty/farm-animal-welfare/what-ag-gag-legislation (last visited Feb. 24, 2017).

[78] ALDF Rankings, supra note 15, at 20.

[79] ALDF Rankings, supra note 73.

[80] ALDF Rankings, supra note 15, at 19.

[81] Id.

[82] Id.

[83] Id.

[84] Id.

[85] Id.

[86] See id. at 4, 12, 19 (explaining that Kentucky has court ordered forfeiture laws for only equine).

[87] Id. at 19.

[88] Id.

[89] Id.

[90] Id.

[91] Id.

[92] Id.

[93] Best and Worst States for Animal Protection Laws, 2017 Report Released, Animal Legal Defense Fund, (Jan. 18, 2018). http://aldf.org/press-room/press-releases/best-worst-states-animal-protection-laws-2017-report-released/.

[94] Animal Legal Defense Fund, Supra note 15.

[95] 510 Ill. Comp. Stat. Ann. 70/1(West 2018).

[96] See generally 510 Ill. Comp. Stat. Ann. 70/2–2.10 (West 2018).

[97] 510 Ill. Comp. Stat. Ann. 70/2.01 (West 2018).

[98] 510 Ill. Comp. Stat.  Ann. 70/3 (West 2018).

[99] Id.

[100] 510 Ill. Comp. Stat.  Ann. 70/2.09 (West 2018).

[101] 510 Ill. Comp. Stat.  Ann. 70/3.06 (West 2018).

[102] 510 Ill. Comp. Stat.  Ann. 70/3.01 (West 2018).

[103] 510 Ill. Comp. Stat.  Ann. 70/3.02 (West 2018).

[104] 510 Ill. Comp. Stat.  Ann. 70/3.03 (West 2018).

[105] ALDF Rankings, Supra note 15, at 11.

[106] Id.

[107] Id.

[108] 510 Ill. Comp. Stat.  Ann. 70/2.01(West 2018).

[109] ALDF Rankings, Supra note 15, at 11.

[110] 510 Ill. Comp. Stat.  Ann. 70/3.02 (West 2018).

[111] Id.

[112] 510 Ill. Comp. Stat.  Ann. 70/3.03 (West 2018).

[113] 510 Ill. Comp. Stat. Ann. 70/4.01(West 2018).

[114] 510 Ill. Comp. Stat. Ann. 5/12-35 (West 2018).

[115] Id.

[116] Id.

[117] People v. Thornton, 676 N.E.2d 1024, 1026 (1997).

[118] See, e.g., 510 Ill. Comp. Stat. Ann. 70/3.01 (West 2018).

[119] Id.

[120] Id.

[121] 510 Ill. Comp. Stat. Ann. 70/4 (West 2018).

[122] Id.

[123] Id.

[124] Animal Law Awareness for Law Enforcement and Other Governmental Agencies, https://agr.state.il.us/AnimalHW/LawEnforcementTraining.pdf.

[125] 510 Ill. Comp. Stat. Ann. 70/10 (West 2018).

[126] Supra note 124.

[127] 510 Ill. Comp. Stat. Ann. 70/3.04 (West 2018).

[128] 510 Ill. Comp. Stat. Ann. 70/3.05 (West 2018).

[129] Thornton, 676 N.E.2d at 1026.

[130] Id.

[131] Id.

[132] Id. at 1027.

[133] Id.

[134] Id.

[135] Id.

[136] Id.

[137] Id. at 1027–28.

[138] Id. at 1028.

[139] Id.

[140] 510 Ill. Comp. Stat. Ann. 70/7.1 (West 2017).

[141] Ky. Rev. Stat. Ann.  T. L, Ch. 525.

[142] See id.

[143] Callahan, supra note 10.

[144] Id.; Ky. Rev. Stat. Ann. § 525.125 (West 2017).

[145] Callahan, supra note 10.

[146] Id.

[147] 510 Ill. Comp. Stat. Ann. 70/3 (LexisNexis 2017).

[148] Callahan, supra note 10.

[149] Ky. Rev. Stat. Ann. § 446.010 (LexisNexis 2017).

[150] Malcomb, supra note 70. (referencing conversation with Jai Hamilton).

[151] Id.

[152] Id.

[153] Id.; Ky. Rev. Stat. Ann. § 446.010(2) (West 2017).

[154]  Ky. Rev. Stat. Ann. § 446.010(2) (West 2017).

[155] See Ky. Rev. Stat. Ann. § 525.125 (West 2017); Ky. Rev. Stat. Ann. § 525.130 (West 2017); Ky. Rev. Stat. Ann. § 525.135 (West 2017).

[156] Ky. Rev. Stat. Ann. § 525.125 (West 2017).

[157] Id. (emphasis added).

[158] Ky. Rev. Stat. Ann. § 525.135 (West 2017).

[159] Torture of dogs and cats is covered by Ky. Rev. Stat. Ann. § 525.135 (West 2017).

[160] Ky. Rev. Stat. Ann. § 525.130 (West 2017).

[161] Ky. Rev. Stat. Ann. § 532.020 (LexisNexis 2017); Ky. Rev. Stat. Ann. § 534.040 (LexisNexis 2017).

[162] Ky. Rev. Stat. Ann. § 525.135 (West 2017).

[163] United States v. Chamness, No. 5:11-CR-00054-R, 2012 WL 3109494, at *1 (W.D. Ky. July 31, 2012).

[164] Id.

[165] Id.

[166] See id.; see Ky. Rev. Stat. Ann. § 525.125 (West 2017).

[167] .Chamness, 2012 WL 3109494, at *1.

[168] Id.

[169] ALDF Rankings, supra note 15.

[170] Andrew Wolfson, Bill would ban sex with pets, not other animals, courier-journal (Jan. 10, 2017), http://www.courier-journal.com/story/news/politics/ky-legislature/2017/01/09/bill-would-ban-sex-pets-not-other-animals/96262280/.

[171] Callahan, supra note 10.

[172] ALDF Rankings, supra note 15.

[173] Id.

[174] Id.

[175] Ky. Rev. Stat. Ann. § 436.605 (West 2017).

[176] Id.

[177] Id.

[178] Rebecca F. Wisch, Table of Veterinary Reporting Requirement and Immunity Laws, Animal Legal & Historical Center (2015), https://www.animallaw.info/topic/table-veterinary-reporting-requirement-and-immunity-laws.

[179] Dr. Marty Becker, It’s against the law for a veterinarian to report animal abuse in Kentucky,  (Nov. 20, 2014), https://www.drmartybecker.com/news/law-veterinarian-report-animal-abuse-kentucky/.

[180] Id.

[181] Id.

[182] Ky. Rev. Stat. Ann. § 321.185 (West 2017) (this is in place to protect client confidentiality).

[183] Malcomb, supra note 70.

[184] Telephone Interview withVicki Deisner, Midwest Legislative Director, ASPCA (2017, Jan. 16).

[185] Id.

[186] Id.

[187] Id.

[188] Id.

[189] Callahan, supra note 10.

[190] Id.

[191] Legislative Branch of Government, Legislative Research Commission, http://www.lrc.ky.gov/legproc/lbranch.htm (last visited Feb. 19, 2018).

[192] Id.

[193] Id.

[194] Wolfson, supra note 170.

[195] Legislative Session Length, National Conference of State Legislatures (Dec. 2, 2010), http://www.ncsl.org/research/about-state-legislatures/legislative-session-length.aspx.

[196] Id.

[197] Deisner, supra note 184.

[198] Id.

[199] Callahan, supra note 10.

[200] Id.

[201] Wolfson, supra note 170.

[202] Telephone Interview with Katie Brophy, Former President, Animal Legal Defense Fund (Jan. 17, 2017).

[203] Lukey1, Do Men Care Less About Animals Than Women?, Vancouver Sun (Nov. 24, 2010 04:23 PM), http://vancouversun.com/news/community-blogs/do-men-care-less-about-animals-than-women.

[204] Harold A. Herzog, Gender Differences in Human-Animal Interactions: A Review, Anthrozoos (Feb. 13, 2007), http://wpmedia.vancouversun.com/2010/11/gender.pdf.

[205] Claire Sterling, Is Animal Welfare “Women’s Work”?, ASPCA (Nov. 11, 2015), http://www.aspcapro.org/blog/2015/11/10/animal-welfare-womens-work.

[206] Women in State Legislatures for 2016, National Conference of State Legislatures (Sep. 20, 2016), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2016.aspx.

[207] Women in State Legislatures for 2015, National Conference of State Legislatures (Sep. 4, 2015), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2015.aspx.

[208] See Women in State Legislatures for 2014, National Conference of State Legislatures (Apr. 1, 2014), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2014.aspx; Women in State Legislatures: 2013 Legislative Session, National Conference of State Legislatures (Nov. 8, 2013),http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-for-2013.aspx; Women in State Legislatures: 2012 Legislative Session, National Conference of State Legislatures (Sep. 17, 2012), http://www.ncsl.org/legislators-staff/legislators/womens-legislative-network/women-in-state-legislatures-2012.aspx.

[209] Cynthia L. Gaskill et al., 2016 Study of Current Conditions of Kentucky County Animal Shelters and Degree of Compliance with Kentucky Animal Shelter Laws 1 (2016).

[210] Malcomb, supra note 70.

[211]Gaskill, supra note 209, at 14.

[212] Malcomb, supra note 70.

[213] Gaskill, supra note 209, at 17.

[214] Id.

[215] Id. at 19.

[216] Id.

[217] Malcomb, supra note 70.

[218] Gaskill, supra note 209, at 17.

[219] Malcomb, supra note 70.

[220] Id.

[221] Gaskill, supra note 209, at 16.

[222] Malcomb, supra note 70.

[223] ALDF Rankings, supra note 15, at 11; Ky. Rev. Stat. Ann. § 525.125 (West 2017).

[224] Kristen Kennedy, Realty Check: Why Kentucky is in the Dog House for Animal Abuse, WKYT (Feb. 08, 2012), http://www.wkyt.com/home/headlines/Kentucky_worst_in_nation_at_fighting_animal_abuse_138760019.html.

[225] Samantha D. E. Tucker, No Way to Treat Man's Best Friends: The Uncounted Injuries of Animal Cruelty Victims, 19 Animal L. 151, 158 (2012) (describing laws on owning future pets after being convicted of animal abuse).

[226] Id.

[227] 510 Ill. Comp. Stat. Ann. 70/3.04 (West 2018) (a new version of this statute is effective June 1, 2018, however it does not change the provision allowing a court to order a convicted animal abuser to forfeit their animals).

[228] Id.

[229] See 510 Ill. Comp. Stat. Ann. 70/3.01, 70/3.02 (West 2018).

[230] 510 Ill. Comp. Stat. Ann. 70/3.03 (West 2018).

[231] ALDF Rankings, supra note 15, at 11.

[232] Id. at 12.

[233] Id.

[234] Id.

[235] Id.

[236] Id.

[237] Id.

[238] Id.

[239] Id.

[240] Stephan Otto, Crime & Punishment in Kentucky, Animal Legal Defense Fund (Oct. 26, 2009), http://aldf.org/blog/crime-punishment-in-kentucky/.

[241] Malcomb, supra note 70.

More Coverage, More Problems: No Private Remedies for Kentuckians Hurt by HIPAA Violations After Adoption of the Affordable Care Act

Note | 103 KY. L. J. ONLINE 7 | Aug. 7, 2015

Chelsea N. Hayes[1]

Introduction

Kentucky is leading the way in America’s first state-based exchange to implement the Affordable Care Act (hereinafter “ACA”).[2] While this presumably will assist the one in six Kentuckians who are uninsured,[3] doctors and medical facilities may mistakenly disclose private documents with the high influx of new patients. Therefore, Kentucky citizens may question how to resolve violations of privacy mandated by the Health Insurance Portability and Accountability Act (hereinafter “HIPAA”).[4]HIPAA does not create a state-based private cause of action for violations of its privacy provisions.[5] Kentucky also has no state statute or common law right allowing state private causes of action for HIPAA violations.[6] While Kentucky has legislated a statute allowing private causes of action for other state statute violations, this right does not extend to federal statutes (e.g. HIPAA), regulations, or local ordinances.[7] Because HIPAA does not provide a plaintiff a federal private cause of action,[8] Kentucky refuses to infer a right where Congress has not.[9] Currently, the only way a person may pursue HIPAA violations is by filing a complaint with the Federal Office of Civil Rights (hereinafter “OCR”),[10] yet the individual receives no personal compensation.This note will first explore the interplay between the ACA and HIPAA in Section I, elaborating on Kentucky’s adoption of the ACA and expansion of its medical landscape. Section II explains existing precedent regarding state remedies for HIPAA violations and emphasizes aggrieved Kentuckians’ lack of recovery. Section III illuminates how Kentucky’s medical landscape is not unique from other states’, which allow state based causes of action. As a result, Kentucky should enact a statutory private cause of action to develop its medical landscape alongside the expansion of healthcare similar to West Virginia’s legislative scheme.

I. Background: Interaction between The Affordable Care Act and HIPAA

The implementation of the ACA allows millions of Americans the opportunity to receive affordable healthcare. Kentucky quickly adopted the ACA on a state level to provide statewide coverage and accessibility to Kentuckians.[11] As the number of individuals accessing healthcare increases, providers may become overwhelmed, and some protected health information may be unintentionally disclosed to the public. HIPAA governs these disclosures via regulations, violations, fines, and incarcerations,[12] incentivizing doctors and other health professionals to proceed carefully and diligently with the influx of patients. HIPAA alone, however, is insufficient to adequately address privacy because enforcement wavers at best, and individuals cannot receive adequate compensation because no federal private cause of action exists.

A. The Affordable Care Act

The ACA, enacted in 2010, employed a patient’s “Bill of Rights,” allowing “the American people the stability and flexibility [needed] to make informed decisions about their health.”[13] As of January 1, 2014, an estimated 14 million Americans will gain health insurance coverage via the Medicaid expansion or individual and/or small business tax reimbursements to lower healthcare costs via the federal and participating state exchanges.[14]These implementations provide individuals minimum health coverage that was once too costly to afford. More particularly, the Medicaid expansion[15] allows more vulnerable individuals 65 years or younger with an annual income below 133 percent of the federal poverty line to gain coverage despite pre-existing conditions or the inability to pay.[16] This means great benefits for the 7.8 million rural Americans who the United States Department of Health and Human Services (hereinafter “HHS”) predicts gained access to medical coverage under the ACA expansion.[17] Kentuckians are among these Americans who will benefit greatly.

B. Kentucky’s Adoption of the ACA

In 2013, 640,000 Kentuckians were uninsured, entailing approximately 15 percent of the state’s population.[18] Prompted by the ACA, Kentucky created Kynect, its state healthcare exchange.[19] According to the Washington Post, “56,422 [Kentuckians] have signed up for new health-care coverage, with 45,622 of them enrolled in Medicaid and the rest in private health plans, according to figures released by the governor’s office . . . .”[20]Of the estimated 640,000 Kentuckians covered, 308,000 could become insured after expansion of the Medicaid eligibility guidelines in accordance with the ACA.[21] This number forecasts that many Kentuckians can seek once unobtainable medical care for untreated conditions stemming from smoking, cancer, preventable hospitalizations, heart disease, etc.[22]When Kentucky welcomed the ACA, however, officials may not have anticipated increasing HIPAA violations. Healthcare reform has allowed Kentuckians to seek healthcare with lower financial cost, but a potentially more significant one: possible loss of personal privacy with no compensation. According to the HHS, “[a]s of December 31, 2013, [the Office of Civil Rights] had 258 open complaints and compliance reviews” for HIPAA violations.[23] While this is a national statistic, one can only imagine the increase in complaints upon adoption of the ACA within Kentucky. Each of the 258 disclosures represents a person, who if he or she lived in Kentucky, would have no private cause of action to recover despite federal legislation.

C. HIPAA Governs Personal Health Information Leaks

Congress enacted HIPAA on August 21, 1996.[24] HIPAA’s main purpose is to encourage uniform standards and requirements for storing protected health information (hereinafter “PHI”) and to reduce clerical burdens on all involved parties.[25] Accordingly, those who maintain PHIs adopt “administrative, technical, and physical safeguards . . . to ensure the integrity and confidentiality of the information, to protect against any reasonably anticipated threats or hazards to the security or integrity of the information and unauthorized uses or disclosures of the information, and otherwise to ensure compliance with this part by the officers and employees of such person.”[26]HIPAA forms are the norm in all offices handling PHI because legislation covers health care providers, health care clearing houses, and health plans (all considered “covered entities”).[27] In 2009, the Health Information Technology for Economic and Clinical Health Act[28] (hereinafter “HITECH”) required modification and strengthening of the HIPAA’s rules by mandating the inclusion of business associates[29] in conjunction with covered entities. HITECH also added levels of culpability for PHI violations.[30]A covered entity breaches HIPAA when it discloses PHI without permission or for an inappropriate purpose.[31] This violation does not have to be intentional, but instead may be inadvertent.[32] In order to seek redress for a suspected HIPPA violation, an individual must file a complaint with the Secretary of the HHS.[33] The OCR, a subdivision under the HHS, manages and investigates violation complaints or suspicion of HIPAA violations.[34] After a covered entity violates HIPAA, the OCR allows a time frame in which the covered entity may take a “satisfactory” action to correct the breach and mitigate the damages.[35] If corrective action is taken, the OCR will simply fine the covered entity via civil penalties,[36] and if the violation is criminal in nature, the OCR may instruct the Department of Justice to investigate.[37]When civil monetary damages are sought for HIPAA violations, complainants or aggrieved persons themselves do not receive money compensation.[38] Instead, recoveries are deposited into the U.S. Treasury to further assist HIPAA investigations.[39] The aggrieved person merely receives notifications regarding the resolution of the violations.[40] While HIPAA clearly defines what constitutes a violation, the Act omits any express private cause of action for individuals to seek compensation for the dissemination of their PHI.[41] Consequently, complainants are merely left with filing a complaint to the OCR, with few states providing additional redress.[42]

II. Case Law: Few State Causes of Action for HIPAA Violations

HIPAA violations have increased throughout the years, but aggrieved persons are left with no federal remedies because HIPAA does not generate a private cause of action.[43] Some states, however, allow recovery in state court via common law tort claims and/or statutory recoveries.[44] States such as West Virginia recognize both, whereas Kentucky recognizes neither.[45]

A. Aggrieved Persons Harmed by HIPAA Violations Cannot Recover in Federal Court

The Supreme Court iterated in 1979 that despite a person violating a federal statute and harming another individual, a violation does not automatically prompt a private cause of action.[46] As a result, harmed persons do not individually benefit from HIPAA protections.[47] In fact, the Supreme Court in 2001 stated that HIPAA will never provide a cause of action for wronged individuals unless amended with the intent to establish that right.[48] This results in summary judgment for the defendant covered entity,[49] and the OCR provides the singular remedy.[50]

B. States Allowing HIPAA Violations to Establish the Standard of Care in Tort Claims

Recently few states have allowed HIPAA guidelines to provide the standard of care for common law claims in state court litigation. In these jurisdictions, HIPAA rules supply the baseline for what a medical professional should do regarding privacy and security of PHI in negligence claims. This allows plaintiffs to claim that the covered entity was negligent according to the statutory regulations of HIPAA without need for expert testimony, establishing negligence per se.[51] A negligence per se claim statutorily establishes the standard of care[52] and permits aggrieved individuals to recover tort damages where no compensatory remedy is available through the OCR.[53] Additionally, this method allows plaintiffs to stand in court without immediately granting the defendant summary judgment.[54] The small number of state cases, indicates that this recovery has not yet picked up steam, but serves as a reminder that states surrounding Kentucky have implemented repercussions for breaches of HIPAA whether through negligence per se or other common law torts.[55]

C. State Statutory Recoveries for HIPAA Violations

Apart from common law tort claims, fourteen states have created a statutory cause of action for HIPAA violations.[56] For example, West Virginia is a model state to explore the effect of both common law and statutory recoveries for HIPAA violations,[57] and will provide the exemplars for this discussion.[58] The West Virginia statute was enacted in 1983,[59] and the state’s highest court further elaborated on this statute by reaffirming a patient’s ongoing right to sue over a HIPAA violation because both a well-recognized common law and statutory right existed under state law.[60] As a result, these states[61] protect privacy by allowing individuals a private cause of action as long as the statute mandates more privacy provisions than HIPAA to avoid federal preemption issues. HIPAA contains a preemption provision mandating that HIPAA supersede any contrary provision of state law.[62] Some courts have grappled with the idea of HIPAA preemption if the states were to create common law or statutory causes of action.West Virginia’s highest court has led the way in litigation and explanation of HIPAA preemption, iterating that HIPPA does not preempt state statutory causes of action for the wrongful disclosure of PHI.[63] In order for HIPAA to preempt any state statute, the state law must be contrary to HIPAA.[64] A law is not contrary if the state law is more stringent than a HIPAA standard, requirement, or implementation.[65] In R.K. v. St. Mary’s Medical Center, Inc., the West Virginia court held “such state-law claims compliment [sic] HIPAA by enhancing the penalties for its violation and thereby encouraging HIPAA compliance.”[66] The plaintiff, R.K., filed state law claims after disclosing otherwise-undisclosed personal information to hospital employees in order to seek treatment.[67] While hospitalized, hospital employees accessed R.K.’s record without permission and relayed PHI to his estranged wife and her divorce lawyer.[68] R.K. initiated state law claims including, but not limited to, breach of confidentiality and invasion of privacy.[69]While the circuit court stated HIPAA preempted these claims, [70] the higher court disagreed, analyzing Yath v. Fairview Clinics, N.P.,[71] involving a state statutory cause of action. Here, the defendant’s clinic tested the plaintiff, Yath, for a sexually-transmitted disease.[72] A clinic assistant accessed his records and disclosed the information to Yath’s husband. Yath sued for wrongful disclosure of medical information in violation of the Minnesota statute by improperly releasing PHI.[73] While lower courts determined HIPAA preempted the state statute, the Minnesota Court of Appeals held that the statute was not preempted because it is not “contrary” to HIPAA.[74] The defendants could comply with both HIPAA and the statute since both laws are “complementary,” not “contradictory” as the laws obtained the same goal of safeguarding patient PHI.[75] The West Virginia Supreme Court of Appeals elaborates that though the remedies in Minnesota Statute § 144.335 and HIPAA are not identical, [76] the differences are merely functional. [77] Both statutes primarily prohibit mishandling of PHI, but HIPAA focuses on criminal liability and civil fines while § 144.335 permits compensatory damages. As such, states like West Virginia allow HIPAA to establish the privacy protection floor, and states may enforce more stringent laws without preemption.As a result, states like West Virginia approve both complementary statutory and common law claims for HIPAA breaches. At the end of the day, however, each individual state must make this decision. “Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.”[78]

D. Kentucky Does Not Recognize a State Common Law or Statutory Cause of Action for HIPAA Violations

Kentucky has yet to recognize any common law private cause of action for HIPAA violations using HIPAA regulations as the standard of care.[79] Alternatively, Kentucky appears to statutorily provide recovery for individuals injured by violations of any statute via KRS § 446.070.[80] This statute allows an aggrieved party to recover for a violation of another statute if that particular statute provides no civil remedy, and the aggrieved person is within the class of persons the statute is meant to protect.[81]In Yeager v. Dickerson, the court addresses whether the plaintiff has a cause of action via KRS § 446.070 against her attorneys for disclosure of medical information.[82] Yeager, executrix of her daughter’s estate, alleged a violation of HIPAA when her daughter died from a drug overdose after release of her PHI at her child’s custody hearing.[83] Because Congress has not expressly intended a private right under HIPAA, the Kentucky Court of Appeals held that KRS § 446.070 does not confer a private civil remedy for such violations.[84] According to the court, the “any statute” language appearing in KRS § 446.070 is limited to state statutes only and exempts federal statutes in which Congress has not intended a remedy to be conferred.[85] The court further stated that even if the General Assembly had intended a right under the state statute where Congress had not, HIPAA would preempt Kentucky state law.[86] The court also has not recognized any common law tort claims for plaintiffs since the claims are grounded in HIPPA.[87] This leaves Kentuckians wondering what rights they can exercise after a HIPAA violation occurs.

III. Solution: Kentucky Should Implement a State Statutory Cause of Action for HIPAA Violations

As it exists, Kentucky provides no private cause of action through KRS § 446.070 for persons harmed by PHI disclosure.[88] This legislative void can only be fully remedied by the Kentucky Legislature enacting a statute specifically allowing a private cause of action for HIPAA violations. For guidance, Kentucky should look to neighboring states, particularly West Virginia, due to similarities between the two states’ medical landscapes. Although Kentucky is more populous and has had different jurisprudence on the subject than West Virginia, these should not stand in the way of Kentucky’s recognition of privacy rights.

A. Proposed Legislation for Recovery under a Kentucky State Statute

Private litigation on a federal scale might overwhelm the effectiveness of HIPAA, but other states have taken charge of regulating medical privacy. In fact, prior to HIPAA, states were the primary regulators of privacy concerns via the common law, statutes, and regulations.[89] The Yeager Court rationalized correctly that even if a private right of action existed, it would be preempted.[90] This is accurate because HIPAA establishes the floor for privacy protection and Kentucky has not yet expanded it further.[91] To circumvent preemption and better protect Kentuckians, legislators must be willing to enact “strong health privacy laws”[92] to redress those harmed.Even after HIPAA’s adoption, HHS explained, “[w]e believed then, and still believe, that there is an urgent need for legislation to establish comprehensive privacy standards for all those who pay and provide for health care, and those who receive information from them.”[93] This concept illuminates the idea that all fifty states should enact legislation to heighten privacy laws to better protect citizens rather than wholly relying on HIPAA to restore justice to aggrieved plaintiffs.[94]This is an alarming problem after the ACA because persons may already distrust the healthcare system due to previously limited access.[95] By enacting a state statutory provision in which KRS § 446.070 will allow recovery, rural Kentuckians may be more apt to trust and seek out healthcare they once could not afford. These persons must not live in fear of Kentucky forgoing individual privacy protection because redress is unavailable.While Kentucky courts have rebuked a private cause of action,[96] implementing a state statute would allow the courts to analyze it as a matter of first impression and partake in shaping the common law associated with the statute. Kentucky can look to West Virginia, its neighbor, for guidance since West Virginia implemented higher safeguards to protect its residents.[97] Little case law exists in Kentucky and West Virginia regarding state rights of action for HIPAA violations. However, in the available case law, Kentucky and West Virginia rationalize the subject comparably.[98] In fact, the only difference between the two states is solely the existing precedent, as the two states have strikingly similar medical landscapes. Precedent is the only barrier that stands between Kentucky and a state private cause of action—a barrier that the ACA will inevitably break down.

B. Comparison: The Kentucky and West Virginia Courts Rationalize Similarly

In Kentucky, Yeager held that the state statute regarding privacy for health care recipients did not confer a private right of action for HIPAA violations.[99] Authority in neighboring West Virginia from the Supreme Court of Appeals, however, is contrary to the Kentucky holding.[100] The courts’ rationale is quite similar, but the respective precedent is distinctive: West Virginia reaffirmed a patient’s ongoing right to sue where Kentucky has not yet initially recognized a patient’s right to sue.First, both courts recognize that HIPAA does not create a federal private right of action for aggrieved persons.[101] Second, neither Kentucky nor West Virginia specifically held that HIPAA preempts a state from recognizing a cause of action for disclosure of PHI.[102] Instead, the courts address whether HIPAA preempts particular statutes. As discussed in West Virginia, HIPAA would preempt state law, including statutory and common law, only if the state law would disallow compliance with both state and federal requirements or if the state law is contrary[103] and stands as an obstacle to HIPAA’s execution.[104]If the courts have already rationalized similarly, Kentucky should consider consulting other jurisdictions in at least allowing a statutory right of recovery in combination with KRS § 446.070 for aggrieved individuals. Preemption would also not be an obstacle, despite Kentucky courts’ rationale, because it is entirely possible for both the OCR to enforce HIPAA through civil and criminal fines and Kentucky to recognize a private cause of action focusing on individual recovery. Both proceedings could occur autonomously without affecting the other. Further, a state right of action would complement HIPAA’s floor by assisting and strengthening incentives to protect PHI with the expansion of the ACA.As one court stated, “[i]t is, to say the least, difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.”[105] While Kentucky has already taken strides to protect its own residents through adoption of the first state-based exchange for the ACA, it has fallen behind West Virginia and other states that have recognized a common law cause of action and others with statutory causes of action due to the toothless fear of preemption and outdated precedent in the time of the ACA.

C. Comparison: Kentucky and West Virginia have Comparable Medical Landscapes

Similar medical landscapes are important when advocating for one state government to adopt another’s remedies. This section statistically compares West Virginia and Kentucky to illustrate few differences exist between them. Kentucky conclusively has more uninsured individuals and more Medicaid recipients yet has no state cause of action like West Virginia. These statistics support Kentucky adopting West Virginia’s approach to redressing breaches.The implementation of the ACA has the potential to extend coverage to as many as 285,931 uninsured West Virginians.[106] West Virginia’s estimated 2013 population was 1,854,304, with 714,605 of those individuals living in rural areas.[107] Through the ACA Marketplace, 42% of adults (about 112,000) and 11% of children (roughly 30,000) will receive Medicaid, 23% of individuals will be eligible for tax credits (62,000), and 23% may gain coverage without financial assistance.[108] Of those uninsured individuals eligible for coverage, 259,000 (91%) are White, 16,461 (6%) are African-American, 2,850 (1%) are Latino or Hispanic, and 1,208 (0.4%) are Asian American or Pacific Islander.[109] At least 799,000 non-elderly individuals, including 91,098 children, have pre-existing health conditions who may now receive healthcare because of the ACA.[110]In comparison, Kentucky, with 647,000 uninsured, was the first state to adopt a state-based exchange for the ACA.[111] As of 2013, Kentucky had an estimated population of 4,395,295, of which 1,837,294 living in rural areas.[112] Through the ACA Marketplace, 45% of adults (about 291,000) and 9% of children (roughly 59,000) will receive Medicaid, 22% of individuals will be eligible for tax credits (145,000), and 24% may gain coverage without financial assistance.[113] Of those uninsured individuals eligible for coverage, 513,688 (83%) are White, 77,280 (12%) are African American, 18,272 (3%) are Latino or Hispanic, and 4,158 (1%) are Asian American or Pacific Islander.[114] At least 1,894,874 non-elderly Kentuckians, including 241,403 children, have pre-existing conditions.[115]The above statistics illuminate that Kentucky has more individuals, more uninsured, and a greater number of Medicaid expansion recipients than West Virginia. Both have high rural populations where poverty can be a perpetual cycle and healthcare a commodity. The majority of uninsured are Caucasian, suggesting this is not a racial discrepancy, but rather a rampant, non-discriminatory issue. This prompts the question why Kentucky has not led the way in protecting Kentuckians from privacy violations like its very similar neighbor, West Virginia? After West Virginia’s adoption of both a common law and statutory cause of action protecting its citizens, Kentucky has few arguments for first implementing the ACA yet refusing to fully protect Kentuckians from HIPAA violations that may increase due to the state’s adoption of the ACA.

IV. Conclusion

While Kentucky is an advocate for providing healthcare via the ACA, Kentucky continues to ignore each person’s individual privacy rights within the medical sphere by providing no redress to Kentuckians hurt by PHI disclosures. As a result, Kentucky lacks the self-interest to fully protect its citizens because citizens desire redress when Kentucky recognizes no right. Neighboring state courts have begun utilizing HIPAA as evidence of the standard of care for other common law torts while others allow statutory causes of actions for HIPAA violations. Kentucky offers neither. This note advocates for Kentucky to implement legislation to strengthen HIPAA regulations by allowing a state private cause of action for Kentuckians hurt or affected by PHI disclosures. Kentucky should look to other states with private causes of action, such as West Virginia, for guidance. This private cause of action will more uniformly protect and guarantee Kentuckians’ privacy via state redress.

[1] J.D., May 2015, University of Kentucky College of Law.

[2] See Mary Branham, State Success & Federal Missteps, The Council of State Governments, http://www.csg.org/pubs/capitolideas/2014_jan_feb/healthcareexchanges.aspx (last visited Jan. 19, 2014). For information regarding the exchange, see Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010).

[3] Steve Beshear, My State Needs ObamaCare. Now., Ny Times (Sept. 26, 2013), http://www.nytimes.com/2013/09/27/opinion/my-state-needs-obamacare-now.html.

[4] Health Insurance Portability and Accountability Act (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as scattered sections of 18, 26, 29, 42 U.S.C. (2000)).

[5] McMillen v. Ky. Dep’t. of Corr., 233 S.W.3d 203, 205 (Ky. Ct. App. 2007).

[6] Young v. Carran, 289 S.W.3d 586, 589 (Ky. Ct. App. 2008) (articulating Kentucky’s lack of common law or statutory private cause of action for HIPAA violations).

[7] See Ky. Rev. Stat. Ann. § 446.070 (2013); T & M Jewelry, Inc. v. Hicks ex rel. Hicks, 189 S.W.3d 526, 530 (Ky. 2006); Alderman v. Bradley, 957 S.W.2d 264, 266-67 (Ky. 1997); Yeager v. Dickerson, 391 S.W.3d 388, 393 (Ky. Ct. App. 2013).

[8] See Alexander v. Sandoval, 532 U.S. 275, 275 (2001) (holding that there is no private right of action to enforce disparate-impact regulations promulgated under Title VI of Civil Rights Act of 1964.”); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (holding no private cause of action for disclosure of PHI during a deposition); Johnson v. Quander, 370 F. Supp. 2d 79, 100 (D.D.C. 2005) (holding that a convicted robber had no private cause of action under HIPAA when challenging the DNA Act because the Secretary of HHS only had that right); Univ. of Colo. Hosp. v. Denver Pub. Co., 340 F. Supp. 2d 1142, 1145 (D. Colo. 2004) (finding no HIPAA private cause of action because the statute created enforcement means for aggrieved persons); O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d 1176, 1179-80 (D. Wyo. 2001) (holding no express or implied private cause of action exists in HIPAA).

[9] Yeager, 391 S.W.3d at 394.

[10] Bob Herman, HIPAA May Form Basis for State Law Private Cause of Action, Becker’s Hosp. Review (June 24, 2011), http://www.beckershospitalreview.com/healthcare-information-technology/hipaa-may-form-basis-for-state-law-private-cause-of-action.html.

[11] Beshear, supra note 2.

[12] See supra notes 18-23 and accompanying text.

[13] About the Law, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/healthcare/rights/ (last visited Jan. 20, 2014).

[14] Individual Health Insurance Coverage, AHIP Coverage (Oct. 12, 2010), http://www.ahipcoverage.com/2010/10/12/individual-health-insurance-coverage/; Small Business Health Care Tax Credit for Small Employers, IRS (Dec. 19, 2013), http://www.irs.gov/uac/Small-Business-Health-Care-Tax-Credit-for-Small-Employers.

[15] While tax reimbursement participants will also comprise a large number of individuals the ACA will help, this paper will primarily focus on Medicaid recipients as this individuals are most likely gaining access for the first time.

[16] Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2575, (2012); Key Features of the Affordable Care Act by Year, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/healthcare/facts/timeline/timeline-text.html (last visited Jan. 20, 2014).

[17] See The Affordable Care Act-What It Means in Rural America, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/healthcare/facts/factsheets/2013/09/rural09202013.html (last visited Jan. 20, 2014).

[18] A Healthier Kentucky: Health Insurance Coverage for Every Kentuckian, Governor of Kentucky Steve Beshear, http://governor.ky.gov/healthierky/Pages/default.aspx (last visited Jan. 20, 2014) [hereinafter A Healthier Kentucky].

[19] Id.

[20] Stephanie McCrummen, In Rural Kentucky, Health-Care Debate Takes Back Seat as the Long-Uninsured Line Up, The Washington Post, (Nov. 23, 2013), http://www.washingtonpost.com/national/in-rural-kentucky-health-care-debate-takes-back-seat-as-people-sign-up-for-insurance/2013/11/23/449dc6e0-5465-11e3-9e2c-e1d01116fd98_story.html. Furthermore, as of March 20, 2014, 321,932 Kentuckians had enrolled through Kynect and 257,477 of these individuals qualified under the Medicaid expansion. More than 321,000 Now Enrolled Through Kynect as March 31 Deadline Approaches, Kentucky.gov (Mar. 21, 2014), http://kentucky.gov/Pages/Activity-Stream.aspx?viewMode=ViewDetailInNewPage&eventID=&activityType=PressRelease.

[21] Beshear, supra note 2.

[22] Id. (“[Kentucky] ranks among the worst, if not the worst, in almost every major health category, including smoking, cancer deaths, preventable hospitalizations, premature death, heart disease and diabetes.”).

[23] Enforcement Highlights, U.S. Dep’t of Health and Human Serv. (Dec. 31, 2013), http://www.hhs.gov/ocr/privacy/hipaa/enforcement/highlights/12312013.html.

[24] HIPAA, Pub. L. No. 104-191, 110 Stat. 1936 (codified as scattered sections of 18, 26, 29, 42 U.S.C. (2000)).

[25] See id. § 261.

[26] 42 U.S.C. § 1320d-2(d)(2)(A-C) (2014).

[27] See 45 C.F.R. § 160.103(4)(iv)(1-3) (2014).

[28] American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5, 123 Stat. 226 (Feb. 17, 2009), codified at 42 U.S.C. §§300jj et seq.; §17901 et seq.

[29] Business associate: (1) Except as provided in paragraph (4) of this definition, business associate means, with respect to a covered entity, a person who: (i) On behalf of such covered entity or of an organized health care arrangement (as defined in § 164.501 of this subchapter) in which the covered entity participates, but other than in the capacity of a member of the workforce of such covered entity or arrangement, performs, or assists in the performance of: (A) a function or activity regulated by this subchapter, including claims processing or administration, data analysis, processing or administration, utilization review, quality assurance, patient safety activities listed at 42 CFR 3.20, billing, benefit management, practice management, and repricing; or (B) Any other function or activity regulated by this subchapter; or (ii) Provides, other than in the capacity of a member of the workforce of such covered entity, legal, actuarial, accounting, consulting, data aggregation (as defined in § 164.501 of this subchapter), management, administrative, accreditation, or financial services to or for such covered entity, or to or for an organized health care arrangement in which the covered entity participates, where the provision of the service involves the disclosure of protected health information from such covered entity or arrangement, or from another business associate of such covered entity or arrangement, to the person. 45 C.F.R. § 160.103(1)(i-ii) (2014).

[30] It also expanded the maximum fine to $50,000 per violation depending on the culpability level, capping maximum amounts for repeated offenses at $1,500,000 per year for aggregate violations. See HIPAA Enforcement after the Recovery Act, Hall, Render, Killian, Heath & Lyman (March 30, 2009), http://www.hallrender.com/library/articles/1085/033009___Enforcement_after_the_Recovery_Act.pdf. However, HIPAA allows an exception to fines if the violation was due to reasonable cause. 42 USC § 1320d-5(a)(1)(B) (2014). HITECH also proposed allowing individuals to share a percentage of recovery or settlement; HHS had until 2012 to issue the regulation, but this does not appear to have occurred yet. Chris Dimick, HIPAA Violation? Sue me, J. of AHIMA (Mar. 1, 2011), http://journal.ahima.org/2011/03/01/hipaa-violation-sue-me/.

[31] See 45 C.F.R. § 164.502(a) (2014) (explaining general rules on violations and permitted uses of PHI). A “breach” is defined by HHS as “an impermissible use or disclosure under the Privacy Rule that compromises the security or privacy of the protected health information.” Breach Notification Rule, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/index.html (last visited Mar. 19, 2014).

[32] See, e.g., 42 U.S.C. § 1320d-5(a)(1)(A), (B) (2014).

[33] How OCR Enforces the HIPAA Privacy & Security Rules, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/ocr/privacy/hipaa/enforcement/process/howocrenforces.html (last visited Jan. 17, 2014) [hereinafter How OCR Enforces].

[34] See 42 U.S.C. § 1320d-5(c)(2) (2014); How OCR Enforces, supra note 32.

[35] How OCR Enforces, supra note 32.

[36] 42 U.S.C. § 1320d-5(a)(2)-(3) (2014).

[37] Id. § 1320d-6; How OCR Enforces, supra note 32.

[38] How OCR Enforces, supra note 32.

[39] Id.

[40] Id. Further, in 2012, HHS reported that 10,454 individuals filed complaints to the OCR, indicating that complaints are not at a minimum. See Health Information Privacy Complaints Received by Calendar Year, U.S. Dep’t of Health and Human Serv., http://www.hhs.gov/ocr/privacy/hipaa/enforcement/data/complaintsyear.html (last visited Jan. 17, 2014) [hereinafter Privacy Complaints] (providing a bar graph to show increasing numbers of HIPAA complaints each year).

[41] Instead, Congress limited enforcement to the Secretary of Health and Human Services, which indicates it did not intend to create private rights of action in individuals aggrieved by HIPAA breaches. Social Security Act, § 1171, 42 U.S.C. § 1320d); Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006).

[42] After the HITECH expansion, state attorney generals are now allowed to bring civil damage claims against entities that breach HIPAA, but this does not affect an individual’s right to sue. Dimick, supra note 29. Even then, the attorney generals may be overwhelmed as well and only choose to take the most devastating and detrimental cases.

[43] See, e.g., Acara, 470 F.3d at 569.

[44] See infra Sections II.B-C.

[45] See Individual Right of Action for Medical Records Access: 50 State Comparison, Robert Wood Johnson Found. (Jan. 20, 2014), http://www.healthinfolaw.org/comparative-analysis/individual-right-action-medical-records-access-50-state-comparison [hereinafter 50 State Comparison].

[46] Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979) (citation omitted).

[47] See Alexander v. Sandoval, 532 U.S. 275, 275 (2001) (holding that there is no private right of action to enforce disparate-impact regulations promulgated under Title VI of Civil Rights Act of 1964.”); Acara, 470 F.3d at 570 (holding no private cause of action for disclosure of PHI during a deposition); Johnson v. Quander, 370 F. Supp. 2d 79, 100 (D.D.C. 2005) (holding that a convicted robber had no private cause of action under HIPAA when challenging the DNA Act because the Secretary of HHS only had that right); Univ. of Colo. Hosp. v. Denver Pub. Co., 340 F. Supp. 2d 1142, 1145 (D. Colo. 2004) (finding no HIPAA private cause of action because the statute created enforcement means for aggrieved persons); O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d 1176, 1179-80 (D. Wyo. 2001) (holding no express or implied private cause of action exists in HIPAA).

[48] Alexander, 532 U.S. at 286-87 ("Without [statutory intent], a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.").

[49] See Acara, 470 F.3d at 572.

[50] HIPAA enforcement has consistently been at a minimum. For example, between 2003 and 2011, the OCR received over 25,000 complaints, but only imposed a formal civil fine in one of these cases. The OCR settled six of these cases. HHS referred 495 cases to the Department of Justice, resulting in only sixteen prosecutions. Rachel Grunberger, Senate Hearings Focus on Lack of HIPAA Enforcement, Final HITECH Rule, Inside Privacy (Dec. 22, 2011), http://www.insideprivacy.com/senate-hearings-focus-on-lack-of-hipaa-enforcement-final-hitech-rule/.

[51] See, e.g., Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., 102 A.3d 32, 42 (Conn. Super. Ct. 2014) (holding HIPAA may be used as the standard of care for a negligence claim and HIPAA does not preempt this type of claim); Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 18-19 (Mo. 2013) (allowing a breach of fiduciary claim against defendant after its phlebotomist faxed HIV results without the patient’s permission); R.K. v. St. Mary's Med. Ctr., Inc., 735 S.E.2d 715, 723 (W. Va. 2012) (holding HIPAA may be used as the standard of care for a negligence claim); Sorensen v. Barbuto, 143 P.3d 295, 299 n.2 (Utah Ct. App. 2006) (holding plaintiff established an action for negligent breach of confidentiality by relying on standards within HIPAA); I.S. v. Washington Univ., No. 4:11CV235SNLJ, 2011 WL 2433585, at *2 (E.D. Mo. June 14, 2011) (“[T]he Court finds that Count III may stand as a state claim for negligence per se despite its exclusive reliance upon HIPAA.”); K.V. v. Women's Healthcare Network, LLC, 07-0228-CV-W-DW, 2007 WL 1655734, at *1 (W.D. Mo. June 6, 2007) (explaining that the negligence per se claim based on HIPAA violation was a state-law claim); Acosta v. Byrum, 638 S.E.2d 246, 253 (N.C. Ct. App. 2006) (allowing plaintiff to reference HIPAA as baseline evidence of appropriate medical standard of care needed as an element of negligence); Harmon v. Maury Cnty., Tenn., No. 1:05 CV 0026, 2005 WL 2133697, at *3 (M.D. Tenn. Aug. 31, 2005).

[52] Young v. Carran, 289 S.W.3d 586, 588-89 (Ky. Ct. App. 2008) (citation omitted).

[53] State supreme courts wrote two of these notable decisions, demonstrating that at least two states’ highest courts have recognized HIPAA as proof of the standard of care for common law tort claims. See, e.g., Sorensen, 143 P.3d at 299 n.2; R.K., 735 S.E.2d at 723.

[54] It appears that plaintiffs must still prove damages proximately caused by the defendant’s actions, and damages must be legally cognizable. See Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121, 126 (Ky. 1994).

[55] For example, Ohio’s Supreme Court in 1999 held that “an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship" and "a third party can be held liable for inducing the unauthorized, unprivileged disclosure.” Biddle v. Warren Gen. Hosp., 715 N.E.2d 518, 523, 528 (Ohio 1999). This tort only applied to the confidential relationship between the physician and the patient, however. Recognizing the shortcomings of this tort and the growing problem of inadvertent disclosure with other entities before HITECH, the same court created a separate tort solely related to medical records that applies to a broader range of persons not limited to physicians. See Hageman v. Sw. Gen. Health Ctr., 893 N.E.2d 153, 157-58 (Ohio 2008).

[56] See 50 State Comparison, supra note 44 (illustrating California, Delaware, Illinois, Louisiana, Maryland, Massachusetts, Montana, New Hampshire, New York, Tennessee, Washington, West Virginia, Wisconsin, and Wyoming have private causes of action).

[57] See R.K., 735 S.E.2d at 715.

[58] See infra notes 83-109 and accompanying text (explaining the similarities between West Virginia and Kentucky).

[59] The statute explains that “[t]he provisions of this article may be enforced by a patient, authorized agent or authorized representative, and any health care provider found to be in violation of this article shall pay any attorney fees and costs, including court costs incurred in the course of such enforcement.” W. Va. Code § 16-29-1(d) (2011 & Supp. 2014); W. Va. Code § 29B-1-6 (2012) (“Any custodian of any public records who willfully violates the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred dollars nor more than one thousand dollars, or be imprisoned in the county jail for not more than twenty days, or, in the discretion of the court, by both fine and imprisonment.”).

[60] See R.K., 735 S.E.2d at 724.

[61] See 50 State Comparison, supra note 44.[62] 42 U.S.C. § 1320d-7 (2014), which states in part: (1) General rule, Except as provided in paragraph (2), a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall supersede any contrary provision of State law, including a provision of State law that requires medical or health plan records (including billing information) to be maintained or transmitted in written rather than electronic form. (2) Exceptions, A provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall not supersede a contrary provision of State law, if the provision of State law... (B) subject to section 264(c)(2) of the Health Insurance Portability and Accountability Act of 1996 [42 USCS § 1320d-2 note], relates to the privacy of individually identifiable health information (emphasis added).

[63] See R.K., 735 S.E.2d at 724.

[64] See 45 C.F.R. § 160.203(a) (2014).

[65] See id. § 160.203(b).

[66] R.K., 735 S.E.2d at 724.

[67] Id. at 717.

[68] Id.

[69] Id. at 718 (iterating claims for outrageous conduct, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent entrustment, breach of confidentiality, invasion of privacy, and punitive damages).

[70] Id. at 719.

[71] 767 N.W.2d 34 (Minn. Ct. App. 2009).

[72] Id. at 38.

[73] Minn. Stat. § 144.335 (2006) (repealed 2007), available at https://www.revisor.mn.gov/statutes/?year=2006&id=144.335 (providing for a private cause of action for the wrongful disclosure of an individual’s medical records); Yath v. Fairview Clinics, 767 N.W.2d 34, 39 (Minn. Ct. App. 2009).

[74] 45 C.F.R § 160.202 (2014); R.K. v. St. Mary's Med. Ctr., Inc., 735 S.E.2d 715, 721 (W. Va. 2012) (“Just because a distinction exists does not make [a state statute] ‘contrary’ to HIPAA. A state law is ‘contrary’ to HIPAA if a health care provider ‘would find it impossible to comply with both the State and federal requirements’ or if the state law is ‘an obstacle to the accomplishment and execution of the full purposes’ of HIPAA.’”).

[75] R.K., 735 S.E.2d at 722-23 (“The stated purpose of HIPAA is to improve the Medicare and Medicaid programs and ‘the efficiency and effectiveness of the health care system, by encouraging the development of a health information system through the establishment of standards and requirements for the electronic transmission of certain health information.’ . . . Rather than creating an ‘obstacle’ to HIPAA, [Minn. Stat. § 144.334] supports at least one of HIPAA’s goals by establishing another disincentive to wrongfully disclose a patient’s health care record.”).

[76] See 45 U.S.C. §1320d-5 (2014) (imposing criminal penalties); Minn. Stat. § 144.335(3a(e)) (2006) (imposing compensatory damages in a civil action).

[77] See R.K., 735 S.E.2d at 722 (“The difference in remedy is functional only, in that a HIPAA violation subjects a person to criminal penalties.”).

[78] Lampf v. Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in judgment).

[79] See, e.g., Young v. Carran, 289 S.W.3d 586, 589 (Ky. Ct. App. 2008).

[80] See Ky. Rev. Stat. Ann. § 446.070 (2013).

[81] See Yeager v. Dickerson, 391 S.W.3d 388, 393 (Ky. Ct. App. 2013).

[82] Id. at 390.

[83] Id. at 391.

[84] Id. at 394.

[85] Id. “[T]he General Assembly did not intend [KRS § 466.070] ‘to embrace the whole of federal laws and the laws of other states and thereby confer a private civil remedy for such a vast array of violations.’” (citation omitted).

[86] Id.

[87] 50 State Comparison, supra note 44 (utilizing a nationwide map to explain Kentucky has not allowed tort claims).

[88] See supra notes 78-86 and accompanying text.

[89] See Joy L. Pritts, Altered States: State Health Privacy Laws and the Impact of the Federal Health Privacy Rule, 2 Yale J. Health Pol’y L. & Ethics 327(2002) [hereinafter Altered States]. Further, “there is still room for states to protect their own citizens by retaining or enacting health privacy protections that mirror and improve upon those in the [federal legislation].” Id. at 328.

[90] See Yeager v. Dickerson, 391 S.W.3d 388, 394 (Ky. Ct. App. 2013).

[91] See generally id. at 388 (articulating no private recovery for plaintiffs in Kentucky).

[92] Altered States, supra note 88, at 345.

[93] Standards for Privacy of Individually Identifiable Health Information, 64 Fed. Reg. 59,923 (Nov. 3, 1999) (to be codified at 45 C.F.R. pts. 160-64).

[94] Altered States, supra note 88, at 347 (“This approach, endorsed by the Privacy Protection Study Commission in the 1970s, ensures that the states will be able to enforce the law and protect their citizens.”) (citing Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission, U.S. Privacy Prot. Study Comm’n 276-90 (July 1977), available at http://epic.org/privacy/ppsc1977report).

[95] As an example, distrust for the state was so extreme that some rural Kentuckians thought that enrolling in the state-health insurance coverage involved implanting microchips into their arms. McCrummen, supra note 19.

[96] See generally Yeager, 391 S.W.3d at 388 (illustrating Kentucky case law against a private cause of action).

[97] See supra section II.C (articulating West Virginia common law and statutory scheme allowing individuals rights of recovery for disclosures of PHI).

[98] See Yeager, 391 S.W.3d at 388; R.K. v. St. Mary's Med. Ctr., Inc., 735 S.E.2d 715 (W. Va. 2012).

[99] See Yeager, 391 S.W.3d. at 394.

[100] See R.K., 735 S.E.2d at 724.

[101] Id. at 718; Yeager, 391 S.W.3d at 393.

[102] See R.K., 735 S.E.2d at 721; Yeager, 391 S.W.3d at 394.

[103] See 45 C.F.R § 160.202-.203 (2013).

[104] See R.K., 735 S.E.2d at 721-24 (discussing HIPAA preempting contrary state laws and disallowing any laws impeding HIPAA enforcement).

[105] Wash. Mut. Bank v. Superior Court, 75 Cal. App. 4th 773, 783 (1999) (citation omitted).

[106] The Uninsured in West Virginia, Addiction Tech. Transfer Ctr. Network, http://attcnetwork.org/regcenters/generalContent.asp?rcid=2&content=PARTCUSTOM (last visited Jan 20, 2014) [hereinafter The Uninsured in West Virginia].

[107] Living in rural areas increased the possibilities of being uninsured. See West Virginia, Rural Assistance Ctr. (Dec. 29, 2014), http://www.raconline.org/states/west-virginia.

[108] See How Will the Uninsured in West Virginia Fare Under the Affordable Care Act?, Kaiser Family Found., http://kff.org/health-reform/fact-sheet/state-profiles-uninsured-under-aca-west-virginia/ (last visited Jan. 20, 2014); Interactive: A State-by-State Look at How the Uninsured Fare Under the ACA, Kaiser Family Found., http://kff.org/interactive/uninsured-gap/ (last visited Jan. 19, 2014) (hereinafter Interactive).

[109] The Uninsured in West Virginia, supra note 105.

[110] 5 Years Later: How the Affordable Care Act is Working for West Virginia, U.S. DEP’T OF HEALTH AND HUMAN SERV., http://www.hhs.gov/healthcare/facts/bystate/wv.html (last visited Jan. 20, 2014).

[111] How Will the Uninsured in Kentucky Fare Under the Affordable Care Act?, Kaiser Family Foundation, http://kff.org/health-reform/fact-sheet/state-profiles-uninsured-under-aca-kentucky/ (last visited Jan. 19, 2014) (hereinafter Kaiser Kentucky).

[112] Kentucky, Rural Assistance Ctr. (Sept. 12, 2014), http://www.raconline.org/states/kentucky.

[113] Kaiser Kentucky, supra note 110; Interactive, supra note 107.

[114] How the Health Care Law is Making a Difference for the People in Kentucky, KY and Appalachia Public Health Training Ctr., http://www.uky.edu/kaphtc/resources/policy-development-and-program-planning/how-health-care-law-making-difference-people (last visited Jan. 20, 2014).

[115] 5 Years Later: How the Affordable Care Act is Working for Kentucky, U.S. DEP’T OF HEALTH AND HUMAN SERV., http://www.hhs.gov/healthcare/facts/bystate/wv.html (last visited Jan. 20, 2014).

Will Kentucky Fall Victim to the EPA's War on Coal? Examining the Commonwealth's Options Under the Newest Power Plant Emission Standards

Note | 103 KY. L. J. ONLINE 6 | Apr. 28, 2015

Matthew Hlinka[1]

Introduction

Coal continues to play an integral part in the development of modern society. Coal keeps our families warm, fuels our trains, and provides electricity for our homes, factories, and cities.[2] The United States is currently the second largest consumer of electricity in the world.[3] In order to satisfy this veracious demand for energy, the United States has long relied on its extensive coal reserves, the largest in the world.[4] In fact, approximately half of the electricity generated in the United States over the last fifty years has come from coal.[5]

[Coal’s benefits, however, are accompanied by several serious drawbacks. For instance, the list of undesirable pollutants released by the burning of coal includes mercury, sulfur dioxide, particulate matter, and carbon dioxide.[6] Balancing these issues has been a constant challenge for the industry.The most recent attempt to balance came from the Environmental Protection Agency (EPA), who at the urging of President Barrack Obama, published its two newest proposed regulations for power plant emissions in 2014.[7] These regulations would cap the emissions of carbon dioxide for new coal-fired power plants at 1,100 pounds per megawatt-hour (MW-h),[8] while also reducing the emissions from existing plants by 30% by 2030.[9] Observers speculate that these new emission standards will be so stringent as to render new coal-fired power plants financially impractical to build.[10]Additionally, these new regulations will have a profound impact on the coal industry in Kentucky. A nationwide decrease in demand for coal will directly harm an industry that employs thousands of people. Without the cheap energy that Kentucky residents currently enjoy from coal, it will be difficult to attract new manufacturing employers, indirectly curtailing the economic prosperity of hundreds of thousands of Kentuckians. This is a serious problem because Kentucky’s coal producing counties are already financially depressed.[11] Severe restraints on the coal industry could cripple those areas beyond repair.This note seeks to address the issues caused by the new regulations. Section I of this Note analyzes the history of the Clean Air Act and the EPA’s proposed regulations for new and existing emission sources. Section II examines Kentucky’s political, legal, and technological options in dealing with these regulations in both the short and long term. Section III argues that Kentucky must fight the standards through a combined approach of using both legal and political channels in order to buy the state additional time for researching and implementing new technologies.

I. Background

A. History of the Clean Air Act

In response to growing concerns over poor air quality in industrial areas, Congress passed the Clean Air Act of 1963, the first federal legislation concerning air pollution control.[12] This version of the Act provided funding for air pollution research and cleanup but did not set up a federal regulating authority.[13] Seeking more federal oversight, Congress passed a much stronger version in 1970 creating the EPA and giving it the primary authority in carrying out the Clean Air Act.[14]The 1970 amendments to the Clean Air Act required the EPA to identify air pollutants, determine air pollution criteria, and issue air pollution goals to the states.[15] The EPA must also issue recommended techniques for the states to meet those goals.[16] After receiving the EPA’s national recommendations, each state is required to create and adopt a plan to meet the EPA’s standards by certain statutory deadlines.[17]One exception to this national-state arrangement is that the EPA was required to create federal standards to regulate “new sources.”[18] The statute defines new sources as “any stationary source, the construction or modification of which is commenced after the publication of regulations.”[19] In addition to dividing up the regulatory power over stationary sources among federal and state governments, this exception effectively creates newer, stricter requirements for new plants while allowing existing sources to remain “grandfathered in” and subject to less restrictive standards.[20] In doing so, Congress recognized that it is cheaper to incorporate new technology into the design and construction of new units than to squeeze more efficiency out of existing units. Additionally, industrial facilities do not last forever. As units become obsolete and are replaced, new units will automatically increase in efficiency as they meet the new standards.However, when the grandfathering policy was created, Congress was operating under an erroneous assumption that coal-fired power plants would have a usable life of only thirty years.[21] Yet as statistics show, 74% of coal power plants in existence in 2012 were already more than thirty years old.[22] Some states and environmental groups have criticized the grandfathering policy, arguing that it encourages owners of older, obsolete plants to continue their plants’ operation well beyond their normal lifetimes in order to avoid meeting the stricter requirements.[23]As the pollution standards for coal plants become more and more restrictive, it becomes even less enticing for owners to shut down existing plants and sink large amounts of capital into new, expensive power plants that must meet the New Source benchmarks. This stubborn refusal to submit to the plant turnover once thought to be inevitable has kept the New Source regulations from being as effective as many had hoped. With environmental issues like air pollution and global climate change receiving increased attention from the public, lawmakers have been forced to balance the advantages of having access to an economical, abundant energy source independent of foreign government’s control against coal’s environmental drawbacks.

B. President Obama’s Climate Action Plan

In 2013, President Obama’s announced his Climate Action Plan.[24] One of the goals of the Climate Action plan was to reduce power plant pollution.[25] Power plants account for roughly one-third of all greenhouse gas emissions in the United States, the largest source of emissions in the country.[26]In line with the president’s directive, the EPA proposed new carbon pollution standards for new power plants under 42 U.S.C. § 7411(b) on September 20, 2013.[27] Existing coal-fired power plants currently emit, on average, 1768 pounds of carbon dioxide per MW-h.[28] Under these proposed rules, large natural gas-fired turbines must emit less than 1,000 pounds of carbon dioxide per MW-h, while new, small natural gas-fired turbines must emit less than 1,100 pounds of carbon dioxide per MW-h.[29] New coal-fired units must emit less than 1,100 pounds of carbon dioxide per MW-h or, to provide plants the flexibility and time to optimize technologies, between 1,000 and 1,050 pounds of carbon dioxide per MW-h on average over eighty-four months of operation.[30] If met, these new standards would constitute a massive improvement over current pollution levels.However, critics question whether it is possible to meet these standards with existing coal technology.[31] In order to reach these New Source requirements, utilities would most likely have to utilize carbon capture and sequestration technology, a process in which a portion of the carbon dioxide emitted is captured and stored underground in deep-lying geological layers.[32] Under the right temperature and pressure, the carbon dioxide is maintained in the liquid phase and can be isolated from the Earth’s atmosphere for an extend period of time.[33] Nonetheless, carbon capture technology has not yet advanced to the point where it is commercially feasible and development of this technology has slowed in recent years.[34] Many advocates for coal believe this attempt by Congress to force new plants to use technology that is not feasible is designed to halt new coal plant construction altogether.[35]On June 2, 2014, the EPA unveiled the Clean Power Plan, a proposed regulation intended to cut nationwide carbon emissions by existing power plants 30% by 2030.[36] Rather than achieve this goal through a uniform standard, the EPA issued state-specific targets allowing each state considerable flexibility in determining how they will reach this objective.[37] States that rely significantly on coal, such as Kentucky, are not required to reduce their emission rates as much as the other states. For example, Kentucky would need to reduce its carbon emissions from 2,158 pounds of carbon dioxide per MW-h in 2012 to 1,763 pounds per MW-h in 2030, a decrease of approximately 18%.[38] This goal may not be as difficult to reach as many have feared. State officials estimate that Kentucky has already decreased its emissions to 1,951 pounds per MW-h in 2014, which would put Kentucky slightly more than halfway to meeting its target.[39]

II. Kentucky’s Options

With poverty levels in coal country already at high levels,[40] changes in the coal industry regulations may be overwhelming. Kentucky does, however, have a few options. Kentucky’s first option is to fight, through the political and legal systems, to keep the regulatory standards from being adopted. If the largest coal-producing states can get the proposed regulations weakened or delay the propagation of the regulations until a more coal-friendly administration is in place, the damage could be mitigated. The second option is to focus on researching cleaner energy sources. This includes examining alternative energy sources and searching for technological breakthroughs that would allow coal-fired power plants to meet the EPA standards while remaining economically feasible. Regardless of the choice, Kentucky must act quickly to position itself for long-term success.

A. Fighting the Standards Through the Adequate Technology Requirement

If Kentucky chooses to fight the EPA’s standards, they can make a strong argument that existing technology is not adequate to reach the proposed limits. Under the Clean Air Act, the EPA is required to impose regulations that are achievable based on current technology.[41] If the Administrator does not believe that the standards can be reached with technology that has been “adequately demonstrated,” she can promulgate an alternative that has been adequately demonstrated to be both economically and technically feasible.[42]In the proposed regulation published in January 2014, the EPA references a state-of-the-art coal power plant being built in Kemper County, Mississippi to support the feasibility of carbon capture and sequestration technology.[43] This reference is not without flaws. Although the Kemper County plant is scheduled to begin operations later this year, construction has been repeatedly delayed and the project is already projected to be $2 billion over budget.[44] One could make a strong argument that a plant that is not even generating electricity yet cannot adequately demonstrate the technology. Additionally, even if the plant is able to perform as planned, that does not demonstrate that the technology is feasible nationwide, as the Kemper County plant has certain advantages that other locations may not enjoy, such as a local oil field that can be used for storing the captured carbon.[45]There is evidence that even some internal factions of the EPA feel the agency is going too far. In November 2013, shortly after the proposed standards for existing power plants were released, the EPA’s Science Advisory Board (SAB), whose principle mission is to advise the EPA on scientific and technical matters,[46]released a memorandum discussing the proposal.[47] In that memorandum, the SAB challenges the adequacy of the EPA’s research on the matter calling the studies relied on by the EPA “inadequate” and stating that the “scientific and technical basis for carbon storage provisions is new science and the rulemaking would benefit from additional review.”[48]Interestingly enough, the SAB reversed course on this recommendation two months later in a subsequent memorandum.[49] Citing a fact-finding teleconference, the SAB recommended that it should not review the scientific basis for the proposed rule because the rule does not explicitly require carbon capture and sequestration technology and allows for utilities to reach the standards through other means, if they can.[50] This statement is baseless. In the published proposed standards themselves, the EPA discusses three ways for coal-fired power plants to meet the requirements.[51] Two of these alternatives involve carbon capture and sequestration, and the third involves super-critical or ultra-critical boilers or Integrated Gasification Combined Cycle units.[52] Moreover, the EPA essentially writes off this last option a few sentences later because “they do not provide meaningful reductions in CO2 emissions.”[53] By stating this, the EPA is essentially saying that it has no idea how power plants are going to meet these new standards and little desire to find out. Thus, a strong case can be made that the EPA is failing to meet the Clean Air Act’s “current technology” requirement.

B. Federal Authority to Regulate Existing Sources

Kentucky can also argue that the federal government does not have the power to directly regulate existing power plants under the Clean Air Act. The Clean Air Act only authorizes the EPA to promulgate standards for new emission sources.[54] While the Clean Air Act does allow the EPA to require states to issue standards for existing power plants, the EPA is only allowed to guide states procedurally in the endeavor, such as requiring states to apply the factors under 42 U.S.C. § 7411(a)(1).[55] Furthermore, § 7411(d) does not give the EPA the authority to reject a state plan that contains a standard of performance as defined by the statute.[56] States have the ultimate authority to define the substantive standards.Although the June 2014 Clean Power Plan gives more deference to the states than most anticipated, the EPA may have still overstepped its bounds under the Clean Air Act. An argument can be made that its actions violate public policy and the principles of cooperative federalism clearly defined by § 7411(d). Intuitively, the states are generally in a better position to determine the feasibility of any proposed changes and can more accurately measure how those changes will affect local communities.The EPA’s failure to follow the Clean Air Act’s requirements for issuing standards based on existing technology and allowing states to promulgate regulations for existing emission sources can be challenged in court. A lawsuit can be expected whenever a more concrete proposal is in place. In fact, the attorneys general of seventeen states, including Kentucky, submitted a letter to the EPA in September of 2013 detailing their concerns with the EPA’s actions.[57] This letter contends that the “EPA, if left unchecked, will continue to implement regulations which far exceed its statutory authority to the detriment of the states, in whom Congress has vested authority under the Clean Air Act, and whose citizenry and industries will ultimately pay the price of these costly and ineffective regulations.”[58] This letter is clearly an announcement that the states will challenge the EPA’s authority.Locally, United States Senator Mitch McConnell (R-Ky.) has already taken steps to challenge the EPA standards. After the EPA published its rule for new power plants in January, 2014, McConnell announced his plans to force a vote to stop the regulations.[59] McConnell aims to stop the regulations through the Congressional Review Act, which allows Congress to review new federal regulations issued by agencies and overrule them through a joint regulation.[60] Although the Review Act can usually only be applied to final rules, McConnell argues that the mere publication of the new rules are enough to immediately impact any plans for the construction of new power plants and, therefore, the Review Act can be utilized now.[61]Regardless of the outcome of these attempts to impede the EPA’s regulations, it is encouraging to see Kentucky’s leaders at the forefront of the effort. At the very least, these efforts at slowing down the rulemaking process buys the state time. Considering the large differences in policy between the Bush administration and the Obama administration in regards to coal, Kentucky’s solution may be as simple as stalling until the 2016 presidential election in hopes that a more coal-friendly candidate is elected. Alternatively, if the states succeed in their argument that the EPA does not have the authority to regulate existing power plants under the Clean Air Act, the states can procrastinate issuing their own standards in hopes that either a technological breakthrough is made or the EPA decides to soften their stance on coal. For these reasons, Kentucky’s current plan of action appears to be a step in the right direction for the short term. However, with the current political focus on global climate change, stricter emission standards are inevitable. To best position itself for the future, Kentucky needs to investigate both technological improvements in clean-coal usage and alternative energy sources.

III. Kentucky’s Best Approach

As the EPA finalizes its carbon regulations for existing and new emission sources, Kentucky must be proactive in seeking solutions to Kentucky’s future energy issues. Although fighting the proposed standards in court and through the political and rulemaking processes is a short-term strategy that should be pursued in order to buy the state time, it has become abundantly clear that large emitters of greenhouse gases are becoming less and less politically acceptable. It is only a matter of time before existing coal technology is no longer feasible in this country. Kentucky needs to prepare itself for that day.Kentucky’s immediate short-term strategy should be to fight the standards in court. There are at least two main arguments that can be used to attack the EPA’s actions. The first is the “adequately demonstrated” technology requirement. As it currently stands, carbon capture and sequestration is the only way that coal plants can meet these emissions standards, but that technology is not yet feasible and may not be for decades.[62] The EPA is presenting the Kemper County plant as a model of carbon capture and sequestration technology, but that project is extremely over budget, still under construction, and that technology may not even be compatible with Kentucky’s natural geographical and geological characteristics.[63] Thus, Kentucky should argue that the EPA must be forced to follow the statutory requirements of § 7411 so that Kentucky has a fighting chance to succeed.Kentucky’s second legal option is to attack the EPA’s attempts to directly regulate existing sources because this power belongs to the states. Although this argument will not help Kentucky deal with the New Sources requirements that have already been published, attempting to retrofit existing coal plants or being forced to shut down non-compliant plants altogether may be catastrophically expensive and burdensome. The EPA must be forced to operate within the limits of its statutory authority.Regardless of whether coal remains a feasible source of electricity, Kentucky needs to start moving towards alternative energy sources. If the EPA’s standards are successful, this shift will be out of necessity, but even if the EPA’s standards are not allowed in their current form this time around, it certainly appears that it is only a matter of time before a major crackdown on carbon emissions is promulgated. Considering the political climate, it is too risky to continue depending on coal for over 90% of the state’s electricity.

IV. Conclusion

This Note has explored the effect that the EPA’s proposed New Source emission requirements, and its forthcoming existing source emission requirements, will have on Kentucky. These standards have the potential to devastate Kentucky’s coal mining industry and the affordable electricity rates Kentuckians currently enjoy.This Note proposes that Kentucky’s leadership continue to fight the EPA’s standards politically and legally. It is in Kentucky’s best interests to do everything possible to keep the standard from being adopted or, at the very least, delay their implementation for as long as possible in order to give the state more time to prepare. This Note advocates for Kentucky’s vigilance in seeking out viable alternative energy sources. It is unwise to be so heavily reliant on coal in this current political climate and Kentucky must work to reduce this dependence. Natural gas is the most attractive option in the short term, but it may be only a matter of time before carbon emission standards strangle that option as well. Kentucky would be wise to maintain a diverse energy portfolio, fully examining the local feasibility of nuclear, biomass, and solar energy resource.

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[1] University of Kentucky College of Law, J.D. May 2015.

[2] Roberta Mann, Another Day Older and Deeper in Debt: How Tax Incentives Encourage Burning Coal and the Consequences for Global Warming, 20 Pac. McGeorge Global Bus. & Dev. L.J. 111, 111 (2007).

[3] The United States ranks second only to China. CIA, The World Factbook: Country Comparison: Electricity – Consumption, CIA, https://www.cia.gov/library/publications/the-world-factbook/rankorder/22… (last visited April 14, 2015).

[4] See Coal Proved Reserves by end of 2011, Europe’s Energy Portal, http://www.energy.eu/stats/energy-coal-proved-reserves-total.html (last visited April 14, 2015).

[5] Approximately 46% of all electricity nationwide in 1970 was generated from coal. See U.S. Energy Info. Admin., Monthly Energy Review: Electricity Net Generation, (March 2015), available at http://www.eia.gov/totalenergy/data/monthly/pdf/sec7_5.pdf. This number rose to 57% in 1985, and 52% in 2000. Id.

[6] Patricia Glick, The Toll from Coal: Power Plants, Emissions, Wildlife, and Human Health, 21 Bull. of Sci., Tech. & Soc’y 482, 482 (2001); Thomas O. McGarity, When Strong Enforcement Works Better Than Weak Regulation: The EPA/DOJ New Source Review Enforcement Initiative, 72 Md. L. Rev. 1204, 1209–10 (2013).

[7] See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34, 830 (June 18, 2014) (to be codified at 40 C.F.R. pt. 60); Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60).

[8] Standards of Performance, 79 Fed. Reg. at 1448.

[9] Press Release, EPA, EPA Proposes First Guidelines to Cut Carbon Pollution from Existing Power Plants (June 2, 2014), available at http://yosemite.epa.gov/opa/admpress.nsf/bd4379a92ceceeac8525735900400c2.

[10] Keith Johnson & Tennille Tracy, EPA Plan to Curb New Coal-Fired Power Plants, Wall St. J. (Sept. 11, 2013, 9:00 PM), http://online.wsj.com/article/SB1000142412788732386460457906955091602126.

[11] Office of Press Secretary, Fact Sheet, The White House (Jan. 8, 2014), https://www.whitehouse.gov/the-press-office/2014/01/08/fact-sheet-presid.

[12] EPA, Understanding the Clean Air Act, EPA.gov, http://www.epa.gov/airquality/peg_caa/understand.html (last updated Oct. 28, 2014).

[13] Id.

[14] Id.

[15] 42 U.S.C. § 7408 (2013).

[16] Id.

[17] Id. § 7410 (2013).

[18] Id. § 7411(b) (2013).

[19] Id. § 7411(a)(2).

[20] Jonathan R. Nash & Richard L. Revesz, Grandfathering and Environmental Regulation: The Law and Economics of New Source Review, 101 Nw. U. L. Rev. 1677, 1678 (2007).

[21] Shi-Ling Hsu, Reducing Emissions from the Electricity Generation Industry: Can We Finally Do It?, 14 Tul. Envtl. L.J. 427, 435 (2001).

[22] Todd Woody, Hitting the Gas: Most coal-fired power plants in the US are nearing retirement age, Quartz (Mar. 12, 2013), http://qz.com/61423.

[23] Nash & Revesz, supra note 20, at 1678.

[24] Executive Office of the President, The President’s Climate Action Plan (2013), available at http://www.whitehouse.gov/sites/default/files/image/president27sclimatea.

[25] Id. at 6.

[26] Id.

[27] Jeff Postelwait, Gina McCarthy Introduces EPA’s Revised Rules for New Power Plants, Electric Lights & Power (Sept. 20, 2013), http://www.elp.com/articles/2013/09/gina-mccarthy-introduces-epa-s-revis…].

[28] Id.

[29] Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1446 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60).

[30] Id. at 1448.

[31] See Joanna M. Foster, EPA Publishes First Rule Limiting Carbon Pollution From New Power Plants, Think Progress (Jan. 9, 2014, 12:48 PM), http://thinkprogress.org/climate/2014/01/09/3139921/epa-carbon-rule-powe.

[32] Id. The three main types of geological formations that are being considered for carbon sequestration include: oil and gas reserves, deep saline reservoirs, and unmineable coal seams. Peter Folger, Cong. Research Serv., Carbon Capture and Sequestration (CCS): A Primer 4 (2013), available at https://www.fas.org/sgp/crs/misc/R42532.pdf. It is also theoretically possible to store large amounts of carbon deep beneath the ocean’s surface. Id. at 13. Deep ocean sequestration involves injecting the captured carbon dioxide at depths around 3000 meters. Id. At these depths, carbon dioxide is a liquid denser than seawater, so the injected carbon dioxide would remain at the bottom. Id. However, there are a number of environmental concerns associated with deep ocean sequestration because large-scale implementation could cause the ocean to become more acidic. Id. at 14.

[33] In Clean Coal We Trust – or Do We?, ParisTech Rev. (Oct. 15, 2013), http://www.paristechreview.com/2013/10/15/clean-coal-trust.

[34] Matthew L. Wald, Despite Climate Concern, Global Study Finds Fewer Carbon Capture Projects, N.Y. Times (Oct. 10, 2013), http://www.nytimes.com/2013/10/11/science/earth/study-finds-setbacks-in-.

[35] Foster, supra note 31.

[36] The 30% reduction is from 2005 levels. Using 2005 as the baseline is beneficial for carbon emitters, as the EPA’s proposal is actually only a 17% decrease from 2012 levels. David Doniger & Derek Murrow, The Clean Power Plan: NRDC’s Initial Analysis of EPA’s Landmark Proposal to Curb Carbon Pollution from the Nation’s Power Plants, Switchboard (June 7, 2014), http://switchboard.nrdc.org/blogs/ddoniger/the_clean_power_plan_nrdcs_in.

[37] Press Release, EPA, supra note 9.

[38] James Bruggers, Kentucky, Indiana Get Head Start on Global Warming Regs, Courier J. (June 13, 2014, 4:55 AM), http://www.courier-journal.com/story/tech/science/environment/2014/06/12…. Some environmentalists had been pushing for a 45% decrease in Kentucky’s carbon dioxide emission rate. Id. Other states face much larger reductions. Washington state, for example, has been called upon to reduce reductions by 84% by 2030. Coral Davenport & Peter Baker, Taking Page From Health Care Act, Obama Climate Plan Relies on States, N.Y. Times (June 2, 2014), http://www.nytimes.com/2014/06/03/us/politics/obama-epa-rule-coal-carbon.

[39] Bruggars, supra note 38.

[40] Annie Lowrey, What’s the Matter with Eastern Kentucky?, N.Y. Times Mag. (June 26, 2014), http://www.nytimes.com/2014/06/29/magazine/whats-the-matter-with-eastern.

[41] See 42 U.S.C. § 7411(h) (2013).

[42] Id.

[43] Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1435 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60).

[44] Reality vs. EPA’s Carbon Capture Dreams, Inst. for Energy Research (Jan. 8, 2014), http://www.instituteforenergyresearch.org/2014/01/08/reality-vs-epas-car.

[45] Southern Cautions on Kemper Coal Unit as EPA Carbon Model, Reuters (Sept. 20, 2013, 5:01 PM), http://www.reuters.com/article/2013/09/20/us-usa-energy-emissions-kemper.

[46] EPA Science Advisory Board (SAB), EPA.gov, http://yosemite.epa.gov/sab/sabpeople.nsf/webcommittees/BOARD (last visited Aug. 21, 2014).

[47] Memorandum from James R. Mihelcic, Chair, SAB Work Group on EPA Planned Actions for SAB Consideration of the Underlying Science, (Nov. 12, 2013), available at http://yosemite.epa.gov/sab/sabproduct.nsf/18B19D36D88DDA1685257C220067A…$File/SAB+Wk+GRP+Memo+Spring+2013+Reg+Rev+131213.pdf.

[48] Id. at 3.

[49] See Memorandum from James R. Mihelcic, Chair, SAB Work Group on EPA Planned Actions for SAB Consideration of the Underlying Science (Jan. 7, 2014), available at http://yosemite.epa.gov/sab/sabproduct.nsf/F43D89070E89893485257C5A007AF…$File/SAB+work+grp+memo+w+attach+20140107.pdf.

[50] Id. at 2–3.

[51] Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1435 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60).

[52] Id.

[53] Id.

[54] 42 U.S.C. § 7411(b) (2013).

[55] Id. § 7411(d). One of the main reasons that Congress made this distinction between new and existing sources was to protect states that were ahead of the curve in enacting stringent pollution controls. See H.R. Rep. No. 95-294, at 184 (1977), reprinted in U.S.C.C.A.N. 1079, 1263. Congress was concerned that industries would avoid the states with stricter standards and primarily build new plants in states that are more lenient or take longer to implement new standards. Id. By giving the EPA the authority to enact uniform national standards for new plants, this concern was significantly mitigated. See id. However, because industry has fewer incentives to leave a state where a plant has already been constructed, and in some cases fully capitalized, the states retained the power to regulate existing sources. See id.

[56] Id. § 7411(d).

[57] Letter from Jon Bruning, Attorney Gen., Neb., to Gina McCarthy, Adm’r, EPA 1, 12 (Sept. 11, 2013), available at http://energycommerce.house.gov/sites/republicans.energycommerce.house.g.

[58] Id. at 1.

[59] Laura Barron-Lopez, McConnell to Force Vote on EPA Carbon Regs, The Hill (Jan. 16, 2014, 11:19 AM), http://thehill.com/blogs/e2-wire/e2-wire/195669-mcconnell-to-push-vote-b.

[60] Id.

[61] Id.

[62] See Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 1430, 1435 (Jan. 8, 2014) (to be codified at 40 C.F.R. pt. 60); Southern Cautions on Kemper Coal Unit as EPA Carbon Model, supra note 45.

[63] Reality vs. EPA’s Carbon Capture Dreams, supra note 44; Southern Cautions on Kemper Coal Unit as EPA Carbon Model, supra note 45.

Knowledge is Power: Understanding Kentucky's Human Trafficking Laws

Note | 103 KY. L. J. ONLINE 5 | Apr. 24, 2015

Katie Smith[1]

Introduction

“Human trafficking”—these two words are increasingly onthe radar of political leaders, celebrities, and average citizens across the nation. Over the past decade and a half, leaders and activist groups have begun to decry this “modern day slavery” as a growing evil that must be stopped; however, celebrities who speak out against trafficking or legislatures that unanimously push to pass bills condemning the practice often do little, in reality, to actually prosecute traffickers or to aid victims.[2] The state of Kentucky, however, is somewhat unique. Although it remains unrecognized by many, human trafficking does, in fact, exist in the Commonwealth. Instead of settling for mediocre laws that condemn the evil of trafficking but do little to combat it, the Kentucky legislature has passed some of the strongest legislation in the country to actually take a stand against sex and labor trafficking within our state’s borders.[3]In the spring of 2013, the Kentucky General Assembly successfully passed House Bill 3, the Human Trafficking Victims Rights Act (“HTVRA”).[4] The HTVRA builds upon Kentucky’s existing human trafficking legislation[5] and provides for increased protections for trafficking victims, stronger penalties and prison sentences for traffickers, training for law enforcement, and funding to help victims.[6] The HTVRA passed unanimously through both the Kentucky House and Senate, and its provisions are admirably proactive.[7] In fact, certain provisions of the law are among the most proactive in the country.[8] The passage of legislation, however, is just the beginning. Two years later, the HTVRA continues to be implemented on the ground level throughout the state, and, after early success, leaders expect the law’s effects to continue to be felt in the months and years ahead.[9]Although trafficking victims are often hidden in plain sight, anyone can identify a trafficking victim.[10] Therefore, as law enforcement officers, prosecutors, judges, and the like become increasingly equipped to handle human trafficking cases, it is crucial that all Kentuckians—both lawyers and non-attorneys alike—also become familiar with the protections available to victims, as well as the penalties in place for perpetrators. In the fight against human trafficking, knowledge is power; this brief note, then, seeks to inform both practitioners and the general Commonwealth population of the state of human trafficking in Kentucky, so that everyone can stay informed and help the implementation of the HTVRA continue to succeed.Part I of this note will offer a brief explanation of the global problem of human trafficking and the current federal law on the issue. Part II will describe the trafficking problem specifically in Kentucky. Part III will then explain the recently implemented Kentucky law on human trafficking, walking through key provisions of the Human Trafficking Victims Rights Act, explaining how these new provisions improve upon pre-existing Kentucky law, and describing why Kentucky’s law is unique among the legislation of other states. While much anti-trafficking legislation is toothless, expressive legislation unable to accomplish its goals,[11] Kentucky’s law has some real strengths. We, the lawyers and citizens of the Commonwealth, should now do our part in the fight against human trafficking, arming ourselves with knowledge and awareness and pushing for the continued implementation and support of the HTVRA.

Part I: The Human Trafficking Problem on the Global and Federal Levels

A. What is Human Trafficking?

Human trafficking, or trafficking in persons, essentially refers to the exploitation of an individual through the use of force, fraud, or coercion for the purposes of either commercial sex or labor.[12] Sex trafficking is statutorily defined as “trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age,” while labor trafficking is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”[13]Accurate statistics, as well as a thorough understanding of the extent of the human trafficking problem across the globe, are elusive. Many organizations report that both sex and labor trafficking are increasing dramatically; other scholars note that this may not exactly be the case.[14] Regardless of the exact number of victims throughout the nation or the world, however, it is clear that human trafficking does exist, just about everywhere, in some capacity. And where it does exist, it can be extremely difficult to detect. There is a unique, largely psychological nature to the crime, and traffickers frequently—arguably, primarily—take advantage of vulnerable populations.[15] Many victims from these vulnerable populations are resistant to help from authorities, making it difficult for authorities to obtain information about the trafficking scheme that would aid prosecution and to provide victims with needed assistance and rehabilitation.[16]

B. Trafficking Law at the Federal Level

The United States is considered a Tier I country by the U.S. Department of State because our government fully complies with federally delineated minimum standards for human trafficking elimination.[17] Despite its Tier I status, the United States remains a source, transit, and destination country for both labor and sex trafficking.[18] One national advocacy group suggests that an estimated 100,000 children are victims of sex trafficking in the United States each year and that the aggregate number of child and adult sex and labor trafficking victims reaches well into the hundreds of thousands.[19]The main federal law on human trafficking is the Trafficking Victims Protection Act (“TVPA”), which was passed in 2000.[20] Through the passage of the TVPA, Congress sought to combat trafficking in persons, to ensure punishment of traffickers, and to protect victims.[21] Congress updated and expanded the protections of the TVPA through the 2008 William Wilberforce Trafficking Victims Reauthorization Act.[22] This federal legislation is crucial, but not all-sufficient, in the fight against trafficking. Federal trafficking legislation has often proved ineffective, or at least limited, at the local level, and the federal government itself has called upon states to act to fill in the gaps of existing federal efforts.[23]States have responded to the federal government’s call, but the success of state anti-trafficking efforts has not been immediate. After the passage of the 2000 TVPA, many states— including Kentucky—jumped at the chance to pass emotionally charged, bipartisan legislation that would criminalize and condemn trafficking.[24] These early state efforts were admirable; however, ample evidence shows that these bipartisan acts tended to be merely expressive legislation that were rarely as effective as hoped.[25] Since the 2008 William Wilberforce Trafficking Victims Reauthorization Act, proactive states across the nation are in the process of updating their trafficking laws to make them more effective. Kentucky is one of those states that has passed a second round of legislation.

Part II: The Human Trafficking Problem in Kentucky

Just like the United States on the whole, Kentucky is described by government reports to be a source, transit, and destination state for human trafficking.[26] Throughout Kentucky, there is no single face of a trafficker. Kentucky traffickers to date include, among others, a woman forcing another to work as her maid;[27] parents selling their two daughters for sex;[28] and pimps setting up prostitution rings during Keeneland meets and the Kentucky Derby, advertising women and possibly children as “fillies” for men to pay to sleep with.[29] Similarly, there is no single face of a Kentucky trafficking victim. While some victims are trafficked in to Kentucky from surrounding states or other countries,[30] trafficking does not always involve transportation across a border.[31] Recent statistics indicate that 35% of victims in Kentucky were identified as foreign nationals, with 64% domestic victims. 59% of victims were identified as children and 41% adults, with 86% of all victims being female and 14% male.[32] Trafficking may seem like an evil that only exists far away or in the shadows, but average Kentuckians can easily encounter it. A quick Google search for “escorts in Eastern Kentucky” reveals numerous websites advertising women all over the state; any woman advertised as twenty-four or younger is likely a minor and a trafficking victim.[33] Further, traffickers consistently target vulnerable populations, and the demographics of the Commonwealth suggest that many Kentucky citizens themselves are at risk for becoming trafficking victims.[34]Compiling accurate information about the extent of human trafficking is a problem on the global, domestic, and state levels, so quantifying the number of human trafficking cases in Kentucky has been no small task.[35] A crucial starting step in understanding the extent of human trafficking in Kentucky came in 2007 thanks to Dr. TK Logan, a University of Kentucky professor.[36] Logan’s study, released in July 2007, provided Kentucky with one of the first quantitative measures of its human trafficking problem.[37]In response to growing awareness of existing trafficking problems, Kentucky adopted its first human trafficking legislation in 2007.[38] Kentucky was the twenty-eighth state in the nation to pass an anti-trafficking law.[39] This legislation, Senate Bill 43, made participation in human trafficking a felony offense and provided certain protections for trafficking victims, such as freedom from incarceration, the right to counseling, and the right to an interpreter.[40] Passage of the 2007 legislation was a success. However, Kentucky legislators soon realized the law lacked the teeth needed to actually combat trafficking. Many people claimed that, among other problems, law enforcement lacked adequate training to handle the crimes the 2007 legislation set out to establish.[41] Overall, the 2007 legislation helped get human trafficking on the Commonwealth’s radar but remained little more than expressive legislation. Legal changes were clearly needed for Kentucky to actually combat the sex and labor trafficking within our state.In response to the recognized shortcomings of the 2007 legislation, human trafficking victims’ rights advocates and legislators joined together to push for the passage of House Bill 3, the Human Trafficking Victims Rights Act, in the spring of 2013.[42] The HTVRA successfully passed both the House and the Senate and was signed into law by Governor Beshear that March.[43] The HTVRA saw early success and continues to be implemented on the ground level throughout the state.[44] To keep up this positive trajectory, each and every Kentuckian should be informed on the basic structure of the state’s human trafficking law, particularly on a few key provisions of the HTVRA.

Part III: Understanding the Human Trafficking Victims Rights Act

While the HTVRA made various changes to existing civil and criminal statutes and has a wide range of implications for human trafficking law in Kentucky, the Act can essentially be described as having four main components. The Act (1) mandates human trafficking education for law enforcement and prosecutors likely to encounter trafficking; (2) calls for trauma-informed care for victims and establishes a specific victim’s assistance fund; (3) creates new financial disincentives for traffickers; and (4) establishes a uniquely comprehensive safe harbor law to ensure victims are given treatment rather than jail time.[45] Having a basic grasp on these four provisions and continuing to push for their implementation can help us as the collective Commonwealth of Kentucky see a decrease in the evils of human trafficking throughout our state.

A. Training and Education for Trafficking Identifiers

A first key provision of the HTVRA focuses on increased education about the existence of human trafficking and victim identification. The HTVRA requires that those most likely to encounter trafficking cases and victims be given specific training regarding trafficking.[46] Prior to the HTVRA, Kentucky law enforcement officials already received specific training for situations involving abuse against the elderly, domestic violence and child abuse, HIV/AIDS, and bias-related crime.[47] Now after the HTVRA, law enforcement officers will be given specific training regarding the characteristics and dynamics of human trafficking and will be instructed in both state and federal trafficking law.[48] Law enforcement will also be trained to investigate potential trafficking cases, with instruction regarding how to screen potential trafficking victims and what resources are available to those victims.[49] The HTVRA further calls for the Attorney General to provide similar training for Commonwealth’s attorneys, county attorneys, and their staffs.[50] These “educational provisions” are designed to ensure that those people in Kentucky most likely to encounter trafficking are able to successfully recognize the crime when they see it. Ideally, these provisions will contribute to an increase in positive identification of traffickers, so that they can be prosecuted for their crimes, and of victims, so that they can be treated according to their specific trauma and needs.

B. Trauma-Informed Care for Victims

Another main emphasis of the HTVRA is trauma-informed care for victims. Victims of human trafficking undergo particular psychological and emotional harm that is distinct from the harm many other crime victims experience.[51] Many believe that, in order to bring holistic healing to human trafficking victims, they must be treated specifically as trafficking victims rather than victims of other forms of abuse or neglect.[52] Accordingly, the HTVRA establishes the Human Trafficking Victims Fund to provide better trauma-informed care. The Fund is to be comprised in part of monies from grants, contributions, and donations.[53] It will also be made up of monies collected as a result of successful state trafficking prosecutions—a portion of all assets seized and forfeited from traffickers will go to the Fund,[54] as well as a $10,000 fee that all trafficking convicts must now pay into the Fund.[55] Often, anti-trafficking legislation does not provide any financial support for achieving its desired outcomes;[56] the HTVRA, however, does provide a mechanism for financially achieving the goal of treating victims—and treating them in the ways they need to be treated—through this Victims Fund.[57]

C. Financial Disincentives for Traffickers

A third emphasis of the HTVRA is the financial disincentives it creates for traffickers through its newly imposed $10,000 fine and asset forfeiture provision. The HTVRA allows law enforcement to seize the assets of traffickers used in connection with the trafficking offense. All property used in connection with or acquired from trafficking will be seized, forfeited, and distributed among the Human Trafficking Victims Fund, the related law enforcement agency, and the attorney’s office responsible for handling the forfeiture.[58] Also, all convicted traffickers must now automatically pay $10,000 into the Victims Fund, regardless of any other charges or fines involved with their convictions.[59]Ideally, these provisions will be a financial disincentive for traffickers above and beyond the disincentive of potential convictions. The $10,000 fee that traffickers must pay into the victims’ assistance fund upon conviction is no small sum. This fee may be little deterrence to a powerful pimp leading multiple, well-established prostitution rings, but it may deter an individual who engages in trafficking simply for a little extra cash.[60] The asset seizure provision, on the other hand, should deter both the small-scale and the large-scale trafficker. Individuals with no history of trafficking who operate out of their homes may not want to risk their homes, and traffickers exploiting on a larger scale would, in turn, have larger amounts of property subject to seizure and forfeiture. The value of forfeitable property – defined as “all property used in connection with or acquired as a result of . . .” the trafficking – could be quite large for any one trafficker, making this HTVRA provision a notable financial disincentive for all potential traffickers.[61]Importantly, these financial disincentive provisions will also help maintain the Human Trafficking Victims Fund, so that victims can receive the trauma-informed treatment that they need.[62]

D. Safe Harbor Protection for Minors

While the HTVRA involves various additional changes to Kentucky law,[63] a final and particularly crucial piece of the legislation is its safe harbor provision, designed to ensure that human trafficking victims are in fact treated as victims rather than criminals. While federal law recognizes the prostitution of a child as human trafficking, many states still do not have legal protections for minor victims; in such states, child victims are often treated as “criminals or delinquents.”[64] Leading anti-trafficking advocates recognize this as an important problem and have called on states to pass so-called “safe harbor” bills, legislation protecting minor victims from criminal charges.[65] Kentucky’s HTVRA includes a comprehensive safe harbor provision. The law prohibits prosecution of anyone under the age of eighteen for prostitution or loitering for prostitution.[66] The law also ensures that victims will not be charged with any status offenses, such as runaway or truancy, related to their trafficking.[67] At the time of its passage, this provision was the most protective safe harbor law of any state in the United States.[68]

Part IV: Conclusion

Although determining the extent of sex and labor trafficking throughout Kentucky is difficult, human trafficking clearly exists throughout the Commonwealth, sometimes in the shadows of a private household[69] and sometimes right in the midst of the public spotlight at Keeneland or at Churchill Downs.[70] Kentucky is in a good place, however, in the global fight against human trafficking. Where Kentucky’s original anti-trafficking legislation was too weak to effectuate actual results, the HTVRA contains comprehensive provisions and fundraising mechanisms that bode well for the law’s continued success. Both lawyers and non-lawyers alike throughout the Commonwealth help ensure the success of the law by staying informed. Understanding some general information about trafficking in Kentucky as well as the key provisions of the HTVRA is one small step we can take to help protect all people within our state’s borders from sex and labor slavery.

---

[1] University of Kentucky College of Law, J.D. May 2015.

[2] See Dina Haynes, When Human Trafficking Becomes a Cause Celebre, Open Democracy (Oct. 6, 2014), https://www.opendemocracy.net/beyondslavery/dina-haynes/when-human-traff… (explaining the drawbacks of celebrity trafficking activism); Priscila A. Rocha, Our Backyard Slave Trade: The Result of Ohio’s Failure to Enact Comprehensive State-Level Human Sex-Trafficking Legislation, 25 J.L. & Health 381, 407 (2012) (explaining how human-rights legislation that is quickly and emotionally passed with bipartisan support often succeeds in criminalizing a particular abuse but lacks a real plan for funding and implementation).

[3] Polaris Project, 2013 Analysis of State Human Trafficking Laws 1-3 (2013), available at http://www.polarisproject.org/storage/2013-Analysis-Category-6-Safe-Harb… (noting that Kentucky is one of twelve states that comply with the full recommendations for the safe harbor and that Kentucky also has a funding provision in place, allowing it to serve as a model for other states).

[4] Human Trafficking Victims Rights Act, 2013 Ky. Acts 25, available at http://www.lrc.ky.gov/record/13rs/HB3.htm.

[5] See Ky. Justice & Safety Ctr., Human Trafficking in the Commonwealth of Kentucky 8 (2007), available athttp://justice.ky.gov/Documents/Statistical%20Analysis/HumanTrafficking2.

[6] See, e.g., Press Release, Governor Steve Beshear’s Commc’ns Office, Governor Beshear Signs Human Trafficking Bill (Mar. 26, 2013), available athttp://migration.kentucky.gov/newsroom/governor/20130326hb3.htm.

[7] See Human Trafficking Victims Rights Act, 2013 Ky. Acts 25.

[8] See Analysis of State Human Trafficking Laws, supra note 3, at 1-3. See also discussion of the HTVRA’s safe harbor, infra Part III.B.

[9] See Rescue & Restore, Module 003 LAW, https://vimeo.com/99576107.

[10] Ky. Rescue & Restore Coal., Identifying Victims of Human Trafficking Fact Sheet 1 (“Everyone can play a role in identifying victims of human trafficking . . . One chance encounter could be a victim’s best hope for rescue.”), available at http://www.rescueandrestoreky.org/wp-content/uploads/2014/06/KY-Rescue-R.

[11] For an explanation of the problem of expressive human trafficking legislation, see Mark Sidel, Richard B. Lillich Memorial Lecture: New Directions in the Struggle Against Human Trafficking, 17 J. Transnat’l L. & Pol’y 187, 201-03 (2008); Rocha, supra note 2, at 440.

[12] Gretchen M. Hunt, Human Trafficking: A Primer for Kentucky Lawyers, Bench & Bar, July 2009, at 17.

[13] Trafficking Victims Protection Act of 2000, 18 U.S.C. §§ 1589-1594, 22 U.S.C. §§ 7101-7110 (West, Westlaw through P.L. 113-182). See also U.S. Dep’t of State, Trafficking in Persons Report 8 (2013) (Introductory Material) [hereinafter “Trafficking Report Introductory Material”], available athttp://www.state.gov/documents/organization/210737.pdf.

[14] See Ronald Weitzer, Sex Trafficking and the Sex Industry: The Need for Evidence-Based Theory and Legislation, 101 J. Crim. L. & Criminology 1337, 1347-1356 (2012).

[15] See, e.g., Rescue & Restore, Module 003 LAW, https://vimeo.com/99576107.

[16] Trafficking Report Introductory Material, supra note 13, at 8-9.

[17] The Trafficking Victims Protection Act, supra note 13, sets forth federal standards for the elimination of human trafficking. The United States meets Tier I standards, but trafficking throughout the country still exists. U.S. Dept. of State, Trafficking in Persons Report 44, 381 (2013) (Country Narratives T-Z) [hereinafter “Trafficking Report Country Narratives”], available at http://www.state.gov/documents/organization/210742.pdf.

[18] Id. at 381.

[19] Polaris Project, Human Trafficking, http://www.polarisproject.org/human-trafficking/overview (last visited Apr. 16, 2015). But see Weitzer, supra note 14 (explaining that many advocacy organizations’ statistics appear inflated).

[20] Polaris Project, Human Trafficking Cheat Sheet 1 (2012); Trafficking Victims Protection Act of 2000, 18 U.S.C. §§ 1589-1594, 22 U.S.C. §§ 7101-7110 (West, Westlaw through P.L. 113-182).

[21] 22 U.S.C. § 7101 (West, Westlaw through P.L. 113-296).

[22] William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (codified as amended in scattered sections of 22 U.S.C.).

[23] Rocha, supra note 2, at 428-30. See also Stephanie L. Mariconda, Breaking the Chains: Combating Trafficking at the State Level, 29 B.C. Third World L.J. 151, 174-77 (2009).

[24] Rocha, supra note 2, at 441.

[25] Mark Sidel, Richard B. Lillich Memorial Lecture: New Directions in the Struggle Against Human Trafficking, 17 J. Transnat’l L. & Pol’y 187, 201-03 (2008).

[26] Trafficking Report Country Narratives, supra note 17, at 381; Ky. Justice & Safety Ctr., supra note 5, at 10.

[27] Maria Castellanos & Gretchen Hunt, Family Court Presentation: Human Trafficking in Kentucky 45 (2013).

[28] Castellanos & Hunt, supra note 27, at 49.

[29] Joe Arnold, LMPD: Prostitution Triples, Sex Trafficking a Concern at Derby Time, WHAS11 Louisville (Apr. 29, 2013, 11:11 PM EDT), http://www.whas11.com/story/news/local/2014/10/14/15755392/.

[30] Kentucky Rescue & Restore Coalition, Victims of Human Trafficking March 2014 Fact Sheet 1 (2014) [hereinafter March 2014 Fact Sheet], available athttp://www.rescueandrestoreky.org/wp-content/uploads/2014/06/KY-Rescue-R.

[31] Polaris Project, Human Trafficking Cheat Sheet 1 (2012). Human trafficking and human smuggling are two different things. Smuggling involves an individual paying a fee to willingly be transported illegally across the United States border. Human trafficking may begin with a smuggling situation; an individual may pay to be transported into the United States, and, upon arrival, the smuggler may hold the individual captive or require him to work. But human trafficking does not require that an individual cross a border or that any movement take place at all. Hunt, supra note 12, at 18.

[32] March 2014 Fact Sheet, supra note 30, at 1.

[33] See Jack Latta, Conference on Human Trafficking Opens Eyes, The Floyd County Times, (July 18, 2013, 7:19 PM), http://www.floydcountytimes.com/view/full_story/20762482/article-confere.

[34] Castellanos & Hunt, supra note 27, at 10. For general information about poverty in Kentucky, see Valarie Honeycutt Spears & Linda J. Johnson, Kentucky’s 2012 Poverty Rate Increased to 19.4 Percent, Lexington Herald-Leader (Sept. 19, 2013), http://www.kentucky.com/2013/09/19/2831627/kentuckys-2012-poverty-rate-i…. The Commonwealth’s overall poverty rate increased from 17.6% in 2011 to 18.3 in 2012, and child poverty increased from 23.5% in 2008 to 26.5% in 2012.

[35] Human trafficking can be extremely difficult to detect, largely because of the unique nature of the crime. Traffickers constantly adapt their tactics and take advantage of excluded, vulnerable populations. Many victims from these vulnerable populations are resistant to help from authorities, making it difficult for authorities to provide victims with needed assistance and rehabilitation and also difficult to obtain information about the trafficking scheme that could be useful for identification and prosecution. See Trafficking Report Introductory Material, supra note 13, at 8-9.

[36] See generally TK Logan, Human Trafficking in Kentucky (2007), available at http://www.cdar.uky.edu/coercivecontrol/docs/hands%20presentation%20fina…) (describing the existence of human trafficking in Kentucky via PowerPoint presentation on June 2007).

[37] Ky. Justice & Safety Ctr., supra note 5, at 12 (2007).

[38] Id. at 8.

[39] Id.

[40] Id.

[41] Rae Hodge, Human Trafficking by the Numbers, Louisville Cardinal (Jan. 23, 2013), http://www.louisvillecardinal.com/2013/01/human-trafficking-numbers-kent.

[42] Human Trafficking Victims Rights Act, 2013 Ky. Acts 25.

[43] See, e.g., Press Release, Governor Steve Beshear’s Commc’n Office, Governor Beshear Signs Human Trafficking Bill (Mar. 26, 2013), available athttp://migration.kentucky.gov/newsroom/governor/20130326hb3.htm.

[44] See, e.g., Rescue & Restore, Module 003 LAW (July 2014), https://vimeo.com/99576107; Valarie Honeycutt Spears, Report: Kentucky Authorities Investigated 20 Allegations of Child Human Trafficking, Lexington Herald-Leader (Dec. 8, 2013), http://www.kentucky.com/2013/12/08/2978313_report-kentucky-authorities-i.

[45] Human Trafficking Victims Rights Act, 2013 Ky. Acts 25.

[46] Id.

[47] Ky. Rev. Stat. Ann. § 15.334(1)(a)-(d) (West, Westlaw through 2014 legislation).

[48] Ky. Rev. Stat. Ann. § 15.334(1)(e) (West, Westlaw through 2014 legislation).

[49] Id.

[50] Ky. Rev. Stat. Ann. § 15.718(1) (West, Westlaw through 2014 legislation).

[51] Ky. Rescue & Restore Coal., Identifying Victims of Human Trafficking Fact Sheet 2.

[52] See Polaris Project, Human Trafficking Legislative Issue Brief: Sex Trafficking of Minors and “Safe Harbor” 1, available athttp://www.polarisproject.org/storage/documents/policy_documents/model%2… (last visited Apr.. 17, 2015) (“Experienced practitioners have found that mainstream programs of the child abuse and neglect system routinely fail these children. The law should require specialized protection and recovery programs for child victims . . . .”).

[53] Ky. Rev. Stat. Ann. § 529.140(2) (West, Westlaw through 2014 legislation).

[54] Id. See also Ky Rev. Stat. Ann. § 529.150(1) (West, Westlaw through 2014 legislation) (articulating asset seizure and forfeiture). The HTVRA’s asset forfeiture provision will be explained in greater detail below. See infra Part III.C.

[55] Ky. Rev. Stat. Ann. § 529.130 (West, Westlaw through 2014 legislation).

[56] See Rocha, supra note 2, at 406-07.

[57] Because Kentucky’s anti-trafficking legislation has a funding mechanism, the Polaris Project advocacy group has indicated that Kentucky’s legislation serves as a good model for other states. See Analysis of State Human Trafficking Laws, supra note 3, at 1-3.

[58] Ky. Rev. Stat. Ann. § 529.150(2)(a)-(c) (West, Westlaw through 2014 legislation).

[59] Ky. Rev. Stat. Ann. § 529.130 (West, Westlaw through 2014 legislation).

[60] In Hodgenville, Kentucky, in December 2010, a woman sold her fifteen year old foster daughter to a man “in exchange for money, and buying items for her house.” The case involved two human trafficking indictments that were later amended down. Castellanos & Hunt, supra note 27, at 48.

[61] Ky. Rev. Stat. Ann. § 529.150(1) (West, Westlaw through 2014 legislation).

[62] Ky. Rev. Stat. Ann. § 529.150(2)(a) (West, Westlaw through 2014 legislation).

[63] For a more detailed summary of the HTVRA, see Kentucky Association of Sexual Assault Programs, Summary of HB 3 Human Trafficking Victims Rights Act (2013), available at http://www.kasap.org/images/files/News/HouseBill%203_KentuckyHumanTraffi…. For a complete understanding of the 2013 legislation’s amendments to previous human trafficking law, see the legislation itself. Human Trafficking Victims Rights Act, 2013 Ky. Acts 25.

[64] Human Trafficking Legislative Issue Brief: Sex Trafficking of Minors and “Safe Harbor”, supra note 52 at 1.

[65] Id.

[66] Ky Rev. Stat. Ann. § 29.120(1) (West, Westlaw through 2014 legislation); Castellanos & Hunt, supra note 27, at 27.

[67] Ky Rev. Stat. Ann. § 630.125 (West, Westlaw through 2014 legislation).

[68] New York was the first state to enact a safe harbor law in 2008. New York’s original watershed law guaranteed there could be no prosecution of anyone under the age of sixteen for prostitution; Kentucky’s law goes further to raise the age to eighteen and to prohibit prosecution for status offenses in addition to prostitution. SeeKaren Wigle Weiss, End Child Prostitution And Trafficking USA, A Review of the New York State Safe Harbor Law 2 (2013), available athttps://d2jug8yyubo3yl.cloudfront.net/26999B2F-7C10-4962-918C-E964709E74…. “Kentucky is the only state to ensure that all child victims of human trafficking are not charged with prostitution or status offenses committed in connection to being trafficked.” Commonwealth of KY. Cabinet for Health and Family Serv., Annual Report of Kentucky Child Victims of Human Trafficking 5 (2013), available at http://chfs.ky.gov/NR/rdonlyres/E5D47613-6922-44C6-8B14-0668374ADD93/0/H.

[69] Castellanos & Hunt, supra note 27, at 45.

[70] Arnold, supra note 29.

Who Will Watch the Watchers?: Derivative Actions in Nonprofit Corporations

Article | 103 KY. L. J. ONLINE 4 | Apr. 22, 2015

Thomas E. Rutledge[1]

Introduction

Quis custodiet ipsos custodes?

- Juvenal, Satire VI, lines 347–8(“Who will watch the watchers?”)

Unlike the Kentucky statutes governing business corporations, limited partnerships and statutory trusts, both the Kentucky Limited Liability Company Act[2] and the Kentucky Nonprofit Corporation Acts[3] are silent as to the requirements for “derivative actions”[4] brought on behalf of the LLC or corporation by a member or other constituent thereof.[5] Some have suggested that this absence indicates that derivative actions do not exist in those organizational forms, positing, it would seem, that it is the statute governing derivative actions that gives rise to the actions. This assessment is incorrect, and, presumably, arises out of a misunderstanding of the basis for derivative actions. In fact, the derivative action is a question of equitable standing that was later, in certain contexts, reduced to statute. It does not follow, therefore, that there are not derivative actions in LLCs and nonprofit corporations consequent to the failure of the statute to provide for them.[6] Rather, equity will provide the rules applicable when the organizational statute does not specify the rules governing derivative actions.[7]While the analysis here explicated is equally applicable in the context of any business entity organizational statute lacking an express derivative action enabling statute, this presentation will focus upon the nonprofit corporation. That said, there appears to be implicit acceptance in Kentucky of LLC derivative actions.[8]This article will begin by reviewing a New York Court of Appeals case which held that derivative actions exists with respect to LLCs organized in New York notwithstanding the silence of the state’s LLC Act as to derivative actions. This article will then turn to a series of Kentucky decisions as to derivative actions in corporations at a time when the related corporate statutes were silent as to derivative actions. Collectively, these decisions stand for the proposition that derivative actions both pre-exist and exist independently of a statute authorizing derivative actions. From there, the article will discuss a pair of issues as to the necessity of affording derivative actions even where statutes are silent. The first of these is the necessity of a mechanism by which the venture’s rights may be enforced over the contrary actions of those then exercising control over it. Second, as a federal court in diversity may entertain a derivative action pursuant to its equitable jurisdiction, the point is made that it would be curious to deprive those who cannot act on a derivative basis the same rights. The next portion of the article will review a number of decisions of foreign courts that have considered the question of derivative actions in nonprofit corporations absent a statute thereon. The discussion will then review seriatim various aspects of derivative actions as they now exist in statute and ascertain whether or not similar requirements exists under Kentucky’s equity-based derivative action precedents. Last, this article considers who may exercise equitable standing in nonprofit corporations to initiate a derivative action.

The Equity Basis of the “Derivative Action”

The ability to enforce fiduciary obligations (and to recover damages for failure in their discharge) has its roots in trust law and the later treatment of the assets of a venture as a cestui que trust for the benefit of the owners.[9] As such, the ability to enforce fiduciary obligations has its basis in equity rather than in positive statutory law.[10] A derivative action recognizes that persons other than the entity have standing to initiate an investigation of management and the propriety of its actions, an important mechanism of enforcement of fiduciary duties. The Connecticut Supreme Court described this mechanism, stating that:

[i]f the duties of care and loyalty which directors owe to their corporations could be enforced only in suits by the corporation, many wrongs done by directors would never be remedied.[11]

As such, the derivative action serves an important policing function in providing a mechanism by which those charged with management and control of a venture may be called upon to demonstrate that they are in fact discharging the obligations they have voluntarily undertaken. Ergo, in response to Juvenal’s famous query, “Who will watch the watchers?,”[12] it will be the court acting at the instigation of those with a relationship with the venture other than through control.The New York Court of Appeals decision in Tzolis v. Wolff, before considering whether a derivative action may be brought in a New York organized LLC notwithstanding that a derivative action provision had been deleted from that state’s draft LLC Act, addressed the history of the derivative action:

The derivative suit has been part of the general corporate law of this state at least since 1832. It was not created by statute, but by case law. Chancellor Walworth recognized the remedy in Robinson v Smith, because he thought it essential for shareholders to have recourse when those in control of a corporation betrayed their duty. Chancellor Walworth applied to a joint stock corporation — then a fairly new kind of entity — a familiar principle of the law of trusts: that a beneficiary (or “cestui que trust”) could bring suit on behalf of a trust when a faithless trustee refused to do so. Ruling that shareholders could sue on behalf of a corporation under similar circumstances, the Chancellor explained:

“The directors are the trustees or managing partners, and the stockholders are the cestui que trusts, and have a joint interest in all the property and effects of the corporation. . . . And no injury the stockholders may sustain by a fraudulent breach of trust, can, upon the general principles of equity, be suffered to pass without a remedy. In the language of Lord Hardwicke, in a similar case [Charitable Corp. v. Sutton], ‘I will never determine that a court of equity cannot lay hold of every such breach of trust. I will never determine that frauds of this kind are out of the reach of courts of law or equity; for an intolerable grievance would follow from such a determination.’”

Eventually, the rule that derivative suits could be brought on behalf of ordinary business corporations was codified by statute. But until relatively recently, no similar statutory provision was made for another kind of entity, the limited partnership; again, the absence of a statute did not prevent courts from recognizing the remedy. In Klebanow v. New York Produce Exch., the Second Circuit Court of Appeals held that limited partners could sue on a partnership’s behalf. For the Second Circuit, the absence of a statutory provision was not decisive because the court found no “clear mandate againstlimited partners’ capacity to bring an action like this.” We agreed with the holding of Klebanow in Riviera Congress Assoc. v. Yassky, relying, as had Chancellor Walworth long before, on an analogy with the law of trusts:

“There can be no question that a managing or general partner of a limited partnership is bound in a fiduciary relationship with the limited partners . . . and the latter are, therefore, cestuis que trustent. . . . It is fundamental to the law of trusts that cestuis have the right, ‘upon the general principles of equity’ and ‘independently of [statutory] provisions,’ to sue for the benefit of the trust on a cause of action which belongs to the trust if ‘the trustees refuse to perform their duty in that respect.’”

After Klebanow and Riviera were decided, the Partnership Law was amended to provide for derivative actions by limited partners (see Partnership Law § 115-a [1]).[13]

From this foundation, the Court of Appeals found that derivative actions exist in New York LLCs notwithstanding the deletion of the derivative action provisions from the draft New York LLC Act.[14]A similar basis for the derivative action, although sadly not so direct, can be found in Kentucky law. At least a quartet of cases, all decided when there was no “derivative action” statute in the law of corporations, demonstrate that the courts of equity would entertain such an action.[15] In Jones v. Johnson, responding to an effort by certain shareholders, in their individual capacity, to bring suit against corporate officers for malfeasance, the court rejected those actions, requiring rather that the shareholders proceed in equity on the corporation’s behalf, stating that:

The error in this view consists, as we think, in regarding the injuries complained of as done to the shareholders and not to the corporation. The funds lost did not belong to the shareholders, but to the ideal person called “The Traders’ Bank and Warehouse Company.” It was the sufferer of the losses sustained; and as every actionable wrong gives to the person injured a cause of action, the right to sue these officers was primarily in the corporation. If the corporation or its assignee had sued, the shareholders could not have maintained either a joint or separate action; but the corporation being still under the control of the alleged unfaithful officers, it would be unreasonable to expect them to sue themselves; and the trustee who might have sued them as the representative of the corporation having refused to do so, the shareholders, as the beneficiaries of the assets of the company, have a right in equity to sue in its name and stead. And we here remark that, suing as they do as a substitute for the injured corporation, they can only sue in equity, because their rights are in this respect equitable only. It does not matter if the action be founded upon a tort; the shareholders, not having a legal right to sue, must either come into equity or they will be without remedy.[16]

In Collier v. Deering Camp Ground Ass’n, addressing an effort by a shareholder to recover rents on lands owned by the corporation, the court wrote:

The pleadings admit that the title to the land was in the Washington Mining and Manufacturing Company, and never in the appellant. The interest of appellant in the land was only that of a stockholder in the corporation. He had no right or title in the land that he could sell or convey. Nor was he entitled to rents for its use. Under the facts stated, recovery for rents would be by the Washington Company; and if that company, after proper demand refuses to sue, appellant might maintain an action for the benefit of the corporation.[17]

Next in this quartet of cases is Pittsburg, C., C. & St. L. Ry. Co. v. Dodd, in which the court addressed contracts between corporations with overlapping directors but dissimilar shareholders:

It will not be questioned that if the bridge company directors, through a fraudulent purpose, refused to bring the suit against the Louisville & Nashville Railroad Company to enforce its liability under the contract, the minority stockholders of the bridge company might maintain the suit on its behalf, although the Louisville & Nashville Railroad Company was not a part to the fraud.[18]

Expanding, so it would seem, on Collier’s requirement that suit on the cooperation’s behalf is predicated on a demand upon the corporation to so act, in Reinecke v. Bailey the court directed: “[t]here being no averment that the corporation declined to institute the action, the right to institute it was in the corporations, and not appellant, who was merely a stockholder.”[19]Clearly the shareholders of a corporation have long enjoyed, even absent a statute, the capacity, on the corporation’s behalf, to initiate a derivative action. It follows that a member, even in the absence of a statute to that effect, on behalf and in the name of an LLC, has the capacity, after demand is made on management,[20] to initiate an action to address an injury to the LLC.[21] Likewise, a member (and perhaps other constituents) of a nonprofit corporation has the capacity, after demand, to initiate a derivative action by which there may be addressed a potential an injury to the corporation. This right, arising out of equity, exists independently of any statutory authorization to do so. Therefore:

• statutes such KRS §§ 271B.7-400 and 362.511 et seq., while serving to both confirm and supplement the equitable right to bring derivative action, cannot be identified as the basis of the right to bring a derivative action;[22] and

• with respect to those organizational forms that do not provide by statute for derivative actions, the right to bring such action exists in equity.[23]

For Every Injury There is a Remedy

A principal of equity is that for every wrong there is a provided remedy.[24] The Kentucky Nonprofit Corporation Acts specifies in great detail the fiduciary obligations of corporate directors and officers.[25] The Act specifies to whom these obligations are owed, namely the corporation.[26] When these obligations are violated, the entity has a claim for damages to remedy the injury it has suffered.[27] The corporation may, through its board of directors, determine to bring suit to seek recompense for the injury suffered.[28] At times, however, due to any number of factors, the board may elect to not pursue redress for the injury suffered by the corporation. In that situation the corporation has been doubly injured in that it has suffered both the initial injury and the failure of the board to protect its legal rights.A derivative action protects the corporation from this latter circumstance, namely not being able to pursue recourse for its injury. For example, while claims against the directors for breach of duty may be tolled while those directors remain in control of the corporation, claims against non-directors (e.g. the embezzling bookkeeper) may be lost if not promptly brought.[29] Even as to claims that are not time barred until a new majority of the board is seated and able to make, on the corporation’s behalf, a disinterested judgment, by then evidence may be stale or lost. There is even the possibility the culpable parties will be deceased. Absent the ability of someone other than those in control of the corporation to initiate an action to vindicate its rights, the express fiduciary duties undertaken by the directors are a toothless tiger that are in effect only aspirational and lack the likelihood of effective enforcement. Furthermore, it would indeed be curious that the members of a nonprofit corporation are afforded a nearly unlimited right to inspect the corporation’s books and records but then may not use that information to vindicate the corporation’s rights nor seek remedy for the wrongs it has suffered.[30]

The Federal Loophole

As a practical matter, if derivate actions may not be brought absent an affirmative statute to that effect, that limitation would apply only in suits brought in state court; they could still be brought in federal court. Under Federal Rule of Civil Procedure 23.1, a derivative action may be entertained in federal court on the basis of diversity jurisdiction.[31] A constituent of a nonprofit corporation who is not a citizen of the state where the corporation has its principal place of business or where the corporation is incorporated may initiate the action.[32] The federal court’s jurisdiction over the matter is not subject to the substantive law of the jurisdiction of organization.[33]As observed in Berg, in reviewing a derivative action brought in federal court on the basis of diversity jurisdiction, “a Federal District Court may, under its general equity powers independently of state statute, entertain a bill of a stockholder for the appointment of at least a temporary receiver to prevent diversion or loss of assets through gross fraud and mismanagement of its officers.”[34] If a derivative action may not be initiated by a corporate constituent in the jurisdiction of organization because of the view that the organic organizational law does not authorize such a suit (for reasons already reviewed as false conclusion), it could be brought by a constituent domiciled in a foreign jurisdiction pursuant to the federal court’s diversity jurisdiction.[35] It would indeed be a strange circumstance if a constituent domiciled in the jurisdiction of organization did not have the capacity to bring a derivative action by which to protect the corporation from potentially disloyal directors even as a constituent domiciled in a foreign jurisdiction could do so.

“Shareholder” Status is NOT a Sine Qua Non to Bringing a Derivative Action

The suggestion that there are not derivative actions in either LLC's or nonprofit corporations on the basis that neither has “shareholders” is, for all intents and purposes, an infantile position. This argument proceeds from the flawed syllogism that derivative actions are brought by shareholders, nonprofit corporations and LLCs do not have shareholders, and therefore there cannot be derivative actions in either nonprofit corporations or LLCs. In the business corporation context, “shareholders” are specifically authorized to bring derivative actions.[36] This does not define, however, the maximum reach of the universe of persons enabled to bring derivative actions. For example, limited partners, who clearly are not “shareholders,” may bring derivative actions.[37] To provide another example, members, who are clearly not “shareholders,” in a limited cooperative association may bring derivative actions.[38] Likewise, in a statutory trust, a beneficial owner, who is not a “shareholder,” may bring a derivative action.[39] Although not yet clearly addressed in Kentucky law, it has been recognized that a creditor may bring a derivative action with respect to a corporation, a capacity that exists irrespective of the fact that the creditor is not a “shareholder.”[40] In Bernfield v. Kurilenko, the widow and heir of a shareholder in a professional corporation in which she could not be a shareholder[41] was permitted to maintain a derivative action on behalf of the corporation in which her husband had been a shareholder.[42] Partners in a general partnership have been permitted to bring a derivative action.[43] The assertion that only “shareholders” may bring derivative actions does not stand up to even minimal scrutiny.Slightly (but only barely so) more sophisticated is the assertion that shareholder or similar “ownership” status, i.e., the capacity to receive interim or liquidating distributions, is a necessary precondition to the capacity to bring a derivative action as only a person with such an interest has an interest to protect through the derivative action. This assertion fails on its own terms. A derivative action exists not to enforce a right of a shareholder or other potential participant in the economics of the venture, but rather to protect the venture’s interest in its own assets. For this reason various actions seeking only injunctive (and no monetary) relief are structured as derivative actions. For example, an action to compel the corporation to produce records or hold a meeting is derivative in nature. Regardless, “shareholder” status is not a sine qua non to bringing a derivative action.

Numerous Courts That Have Expressly Considered the Question Have Found There to Be Derivative Actions Absent a Statute

In addition to the decision rendered by the New York Court of Appeals in Tzolis v. Wolff,[44] although decided in the context of an LLC,[45] numerous courts have squarely addressed the question of whether, ab initio, derivative actions exist in a nonprofit corporation absent a statute to the effect.Addressing who should have standing to bring a derivative action in a nonprofit organization, the Arkansas Court of Appeals, in Morgan v. Robertson, observed:

It should be recognized, however, that Morgan's standing to bring this suit need not rest alone on his status as a member of the Foundation, as he professes to be an officer and a director of the Foundation and assuming that to be so, he has the necessary standing to complain against the sort of acts charged in the complaint. We believe an officer, director and a member of a non-profit corporation is not without standing to question the management and conduct of other officers and directors which are alleged to be in violation of the By-Laws and Articles and against the purposes of the corporation. If such an individual lacks standing, who would have it? We regard the public as having a clear interest in non-profit corporations from the standpoint of the faithful administration of the affairs of the corporation. The standing of one or more directors of non-profit corporations to act derivatively in behalf of the corporation does not seem open to question.[46]

In Kirtley v. McClelland, the court addressed the question of whether, in the context of a nonprofit corporation organized under a statute that did not address derivative actions, could such an action be brought.[47] The court held that it could:

Nonetheless, we are convinced that equitable redress would have been available at common law for members of a nonprofit corporation or an incorporated voluntary association had such plaintiffs sought to utilize it.

First, there is nothing about the remedy itself which warrants distinctive treatment based upon corporate purpose, for a derivative action by nature has as its aim the non-pecuniary benefit of the corporation, not the individual stockholder or member. A stockholder is permitted to sue on behalf of the corporation, not because his rights have been violated, but simply as a means of setting in motion the judicial machinery of the court. The stockholder commences the action and prosecutes it, but in every other respect the action is brought by the corporation; it is maintained directly for the benefit of the corporation and final relief when obtained belongs to the corporation. . . .

The absence of a statutory procedure for initiating a derivative action by a not-for-profit corporation when one has been affirmatively provided for for-profit corporations does not require the conclusion that statutory authorization is a necessity either. A court of general jurisdiction has inherent equitable power unless a statute either explicitly or by necessary implication provides otherwise. The Not-for-Profit Corporation Act does not expressly bar derivative actions by members of a nonprofit corporation.[48]

In the Tennessee case of Bourne v. Williams, it was held that a derivative action could be brought on behalf of a nonprofit corporation notwithstanding statutory language that could be read to restrict derivative actions to for-profit ventures.[49] In the course of its decision, the Bourne Court cited with approval Fletcher’s Cyclopedia for the proposition: “[t]he right of a stockholder to sue is not affected by the nature or kind of the corporation, and the law pertaining to derivative suits applies to a non-profit corporation exactly the same as if it were a business corporation….”[50] Explaining the need for derivative actions in nonprofit corporations, the court wrote:

[i]t would be unconscionable for this Court to say, that in a case such as this, simply because the corporate entity was organized as a corporation not for profit as opposed to a corporation for profit, that there would be no forum available to members of the corporation who believe that the Corporation was being harmed and damaged by alleged illegal and unauthorized acts by its officers and/or directors.

But for being members of a corporation not for profit, as opposed to being stock-holders of a corporation for profit, the plaintiffs have stated a cause of action in their complaint.[51]

A decision of a Florida intermediate appellate court, Fox v. Professional Wrecker Operators of Florida, Inc., addressed the question of derivative actions in a nonprofit corporation where the statute was silent as to the issue.[52] Prior to 1993 the Florida Nonprofit Corporation Act incorporated by reference the Florida Business Corporation Act, the latter providing for derivative actions, but in a 1993 amendment that linkage was eliminated.[53] In this decision the court determined that notwithstanding the severing of the linkage to the business corporation act and its provisions on derivative actions, there is no basis for depriving members in a nonprofit corporation of standing to protect its rights through a derivative action.[54] A similar ruling was issued in Larsen v. Island Developers, Ltd., where the court noted that the derivative action exists “as relief from ‘faithless directors and managers,’” that arose in equity “long before the legislature countenanced such suits by inclusion of statutory references to derivative actions.”[55]The only contrary holding in Kentucky is that rendered in Porter v. Shelbyville Cemetery Co., wherein a former trustee was denied the right, as a trustee, to on behalf of a de facto (but not de jure) corporation, bring a derivative action challenging certain actions alleged to be ultra vires.[56] For a variety of reasons this decision should not be followed. Initially, it is unpublished and therefore by its terms without precedential value. Second, it deals with a former corporation that had forfeited its charter for failure to satisfy express legal requirements imposed at the time the new constitution was adopted, rather than with a nonprofit corporation incorporated under KRS chapter 273.[57] Third, the de facto trustee (i.e., director) who sought to bring the action had been removed from that office prior to bringing the action, eliminating application of the rule that directors are at times permitted to initiate derivative actions.[58] Fourth and most telling, notwithstanding excellent briefing to the court, neither side identified to it the express provisions of the Nonprofit Corporation Acts to the effect that any other variety of persons affiliated with a nonprofit corporation may bring an action to preclude to from engaging in ultra vires conduct.[59] Fifth, the Kentucky Court of Appeals, in Fenley v. Kamp Kaintuck, Inc., clearly thought the questions of derivative actions in nonprofit corporations to be open even as it applied derivative action rules.[60] Simply put, the Porter v. Shelbyville Cemetery decision is in conflict with the current statute governing nonprofit corporations. Alternatively, if Shelbyville Cemetery was at most a de facto corporation or some other extra-statutory form, then the decision is not about nonprofit corporations. Either way, this decision does not merit being afforded precedential value.

The Equity Requirements of the Demand and Contemporaneous Ownership Requirements

In Hawes v. City of Oakland, the U.S. Supreme Court required that the plaintiff in a derivative action have sought redress through direct action by the corporation (the “demand requirement”) and have owned the shares in the corporation at the time of the asserted injury (“or that [the] shares had since devolved [to him or her] since by operation of law”).[61] This contemporaneous ownership requirement has been repeated in Kentucky, both in statutory and case law,[62] but the existence of the requirement long predated its reduction to statute.[63] It has well been applied in the context of Kentucky nonprofit corporations. In Fernley v. Kamp Kaintuck, Inc., a derivative complaint brought by former members of a nonprofit corporation was dismissed on the basis that the plaintiffs were not current members.[64]In a derivative action brought on behalf of a nonprofit corporation, the plaintiff must be expected to either make a demand or plead futility. If it is a membership organization, the plaintiff must also plead that they are a member and are able to represent the interests of similarity situated members in representing the interests of the corporation. Other possible positions granting appropriate standing are discussed below.[65]

The Direct vs. Derivative Distinction

Kentucky courts are vigilant in preserving the direct versus derivative distinction, thereby preserving for the corporation any damages that flow from the breach of duty to the corporation and precluding an individual shareholder from directly receiving that recovery. In doing so, the courts have shown no inclination to adopt the rule set forth in section 7.01(d) of the ALI Principles of Corporate Governance.[66]To place a pair of bookends on a consistent string of rulings, begin with the 1908 decision rendered in Reinecke v. Bailey.[67] In that case, one of the company’s three shareholders embezzled a significant amount of money.[68] The majority shareholder sought to settle the claim on terms that included the embezzling shareholder transferring to the majority shareholder his shares in the corporation.[69] In response to the argument that due to the few number of shareholders it should be permissible to settle the matter between them, the court wrote:

But this argument is not sound, nor is it supported by any authority. There is no escape from the proposition that the wrong, if any, committed by appellee, was against the corporations; that the money he embezzled, if any, was the property of the corporation. This seems conclusive of the question that any settlement concerning the wrongful acts of appellee upon which an action could be maintained must have been made by and with the corporations, and that a suit to enforce the settlement must be in the name of the corporations. No matter how many shares of stock Reinecke and Bailey owned, they were merely shareholders in the corporation. . .

This controversy is not an individual matter between Reinecke and Bailey. Nor does the fact that Reinecke owns the principal interest in the stock of the corporations confer upon him the right to make the corporate business a personal matter. . .

It is well settled that an action to recover corporate property must be brought in the name of the corporation, and that such an action cannot be maintained by one or more stockholders unless it….[70]Thus there is a dual nature of the stockholder’s action: first the plaintiff’s right to sue on behalf of the corporation and, second, the merits of the corporation’s claim itself.[71]Of more recent vintage is Sahni v. Hock, a 2010 decision of the Court of Appeals.[72] That dispute involved allegations by a minority shareholder that the majority shareholder, through his domination of the Board of Directors, caused the company to engage in certain transactions that had the net effect of reducing the value of her shares.[73] Ultimately, even if true, the effect of the allegedly improper conduct was to divert funds from the corporation, only indirectly reducing the value of each shareholder’s stock. Since the corporation was the only entity to suffer direct injury, the claim was derivative, and therefore the plaintiff’s efforts to bring the claim individually were rejected.[74]Typically, the direct versus derivative distinction will not be as complicated an issue in the nonprofit realm as it is in the for-profit ventures. That is not to say, however, that it will be absent. While in a traditional charity there is no expectation of personal inurement, many organizations do not have such strict limits. A person who purchases a membership in a country club has obvious (and entirely proper) expectations as to the use of the facilities; deprivation of that use may raise mixed direct and derivative claims.

Alignment

Any recovery in a derivative action will be for the benefit of the venture on whose behalf the action is brought; it is its rights that are being vindicated. Even so, as the action is brought against the wishes of those with management control of the venture, typically it will be aligned as a defendant in the action.[75] As observed by the U.S. Supreme Court in Ross v. Bernhard, “[t]he corporation is a necessary party to the action; without it the case cannot proceed. Although named a defendant, it is the real party in interest, the stockholder being at best the nominal plaintiff.”[76]

A Jury Trial for Derivative Actions

Notwithstanding that the derivative action arose in equity, the Supreme Court has held that derivative actions may be tried by a jury.[77] While the ability of the shareholder to initiate the action on the corporation’s behalf may have arisen in equity, the corporation’s claim for redress is legal in nature – hence, a jury trial.

Settlement Requires Court Approval

Settlement of a derivative action requires court approval, even if not mandated by statute.[78] For example, in Denicke v. Anglo California Nat. Bank of San Francisco, it was observed that the task of the shareholder initiating a derivative action is to “set in motion the judicial machinery of the court”[79] to the effect that: “his position in the litigation is assimilated to that of a guardian ad litem with power in the court, not in the stockholder, to compromise the rights of the real party in interest, which is the corporation itself.”[80]Predating this decision by almost forty years is a Kentucky decision utilizing similar language. In Louisville Bridge Co. v. Dodd,[81] the court addressed the respective roles of the plaintiff minority shareholders and the court:

[The plaintiff shareholders are] always subject to the control of the court. It is at last the judgment of the latter, in the application of principles of equity, that obtains in lieu of the discretion of the board of directors. The minority stockholder merely sets in motion the action, and presents the facts upon which the court can act.[82]

Recovery of Attorney Fees by a Successful Plaintiff

As noted above, Louisville Bridge Co. was decided at a time when Kentucky’s corporate law did not address or authorize derivative actions. As such, statutes were silent concerning the ability of the shareholder plaintiff to recover attorney fees. With respect to that capacity, the Louisville Bridge Court wrote: “[a] necessary incident of the power and right to maintain such an action is the power to employ counsel to prosecute it, and to incur other necessary expenses in the litigation.”[83]From there, the court explained that plaintiff’s counsel’s fee should be paid by the corporation: “[s]o far as the causes of action set up in this suit have succeeded, counsel representing the plaintiffs are to be deemed as representing the corporation, upon like principles as the plaintiffs themselves are deemed its representatives.”[84]Consequently, while the right of a plaintiff to recover attorney fees expended on behalf of the corporation has in Kentucky been often reduced to statute,[85] the right exists even absent a statute.[86]

Recovery of Attorney Fees from an Unsuccessful Plaintiff

It does not appear, based upon a review of Kentucky law, that the entity and other defendants have a right in common law to seek recovery of attorney fees from a plaintiff whose claim is unsuccessful.[87] As such, while the directors named as defendants may have rights of advancement and indemnification from the corporation’s assets,[88] the corporation appears to lack a basis for making a claim against the persons that on the corporation’s basis initiated the suit.[89]

Special Litigation Committee

It does not appear, based upon a review of Kentucky law, that the entity and the other defendants have the right in common law to appoint a special litigation committee and to thereby effect a dismissal of the action. Therefore, a special litigation committee may not be available unless provided for by statute or in the organic documents such as the Articles of Incorporation and Bylaws.[90]

Non-Profit Status is Not a Bar to Derivative Actions, But it Raises Questions of Standing

Some may assert that non-profit status should preclude derivative actions as there is no pecuniary interest to protect. There are at least two failures in this proposition. First, it fails to account for the broad range of activities undertaken by nonprofit organizations. Second, it ignores the fact that a derivative action exists not to protect the plaintiff’s interest in the organization, but rather the organization’s interest in the proper application of its assets.The range of activities undertaken in nonprofit organizations[91] is broad and includes charitable ventures such as the United Way,[92] the American Red Cross[93]and USA Harvest,[94] benevolent organizations such as the Elks,[95] religious organizations such as the Little Sisters of the Poor[96] and the Abbey of Gethsemani,[97] athletic organizations,[98] residential condominium associations,[99] and private country clubs.[100] It is beyond contravention that each of these classes of organizations serves different constituencies and none of these classes of organizations are exempt from the ravages of poor management. It is likewise true that some or all of these organizations are subject to pressures that may limit or preclude the bringing of suit in order to make the corporation whole for losses suffered at the hands of those in management.[101] While some may lament and caterwaul that bringing to light breakdowns in oversight in nonprofit organizations will reduce if not eliminate the likelihood of further support,[102] it must be acknowledged that such organizations should not be supported and that the public who invests in nonprofit organizations through the contribution of time and money (irrespective of charitable status) should be made aware that those particular bodies are not good stewards. Furthermore, publication of failures serves to advise other organizations of the need to police their inner workings as a means of protecting their respective reputational bonds.[103]While federal tax law may impose limitations that address certain violations of fiduciary duties,[104] these penalties cannot be seen as the exclusive means of policing fiduciary conduct in the nonprofit realm. First, many nonprofit organizations, such as benevolent and athletic organizations, are not within the scope of Code section 501(c)(3) and are therefore not subject to those limitations. Second, the limitations imposed by the federal tax law are not co-extensive with the fiduciary obligations imposed by state law upon those who agree to manage nonprofit organizations. For example, while it may be questioned whether the board of a corporation that has suffered systematic embezzlement has satisfied its duty to act in good faith as exemplified by the Caremark decision,[105] limitations imposed by the federal tax law on self-dealing, excess personal benefit and similar transactions do not address or provide a means of remedying that failure.All of which explain why derivative actions are necessary in nonprofit corporations, but without addressing who should have the capacity to initiate such an action. In light of the many ways in which a nonprofit corporation may be structured, courts should be afforded significant leeway in determining that particular actors have a sufficient interest in the venture to initiate the court’s investigation of management’s discharge of its obligations. Clearly, ab initio members of a membership corporation should be afforded the capacity to initiate a derivative action.[106] As observed by leading commentators in the field of corporate governance:

Nonprofits do not have shareholders, but there may still be constituencies who arguably should be able to bring derivative suits. For example, in a membership nonprofit, the ability to bring a derivative suit could be conferred on members. Directors, as members of the governing board, could also be given the ability to sue derivatively on the organization’s behalf.[107]

Also, irrespective of whether the corporation has members, individual directors should be able to initiate a derivative action.[108] Often directors will have the most immediate knowledge of the need to bring a derivative action and they are therefore in the best position to protect the corporation’s interest. The ability of a director to initiate a derivative action on the corporation’s behalf has precedent in the law of trusts wherein a co-trustee may bring suit against another trustee to challenge the latter’s conduct violating the trust’s terms.[109]While some may lament that such an open policy to bringing derivative actions invites ill-conceived and even abusive suits, the protections of the demand rule will remain in place, as does the ability of the court to determine that a constituent seeking to initiate a suit does not adequately represent the corporation’s interests. Simply put, the absence of a significant member of nonprofit derivative actions even in those states where they are expressly recognized by statute evidence that fears of abuse are unjustified. Likewise, the rarity of nonprofit derivative suits even where they are by statute expressly allowed demonstrates the fallacy of the argument that they may limit the pool of available directors. At the same time, it should be acknowledged that the risk of enforcement of the fiduciary duties undertaken by directors of nonprofit corporations[110] serves to focus attention and enhances the possibility of real oversight. Simply put, individuals who are not willing to become informed as to the activities of a nonprofit corporation and who are not willing to attend and actively participate in board oversight[111] should not stand for election to boards. In that manner, fiduciary exposure is ab initio avoided.Persons who would lament the very existence of derivative actions in a nonprofit corporation and the potential diversion of assets away from charitable purposes towards the defense of perhaps ill-conceived derivative suits should recognize the capability, by statute, of minimizing such possible disruption. As observed in Fletcher’s Cyclopedia:

A nonprofit corporation statue may impose more stringent standards for bringing a derivative proceeding [in the context of a nonprofit corporation] than those imposed in the context of a for profit corporation, such as requiring the action be supported by a stated minimum percentage of the corporation's members. The purpose of such a requirement is to prevent a nonprofit corporation from having to incur legal expenses when there is not a showing at a minimum number of members support the suit.[112]

Again, these limitations must arise by affirmative statute; they do not exist at common law. At the same time, the barriers to bringing a derivative action and thereby bringing to light potential misconduct by those in control of the venture should not be set so high as to preclude the likelihood of appropriate policing of fiduciary obligations.

Conclusion

Derivative actions provide a powerful tool for ensuring that those charged with control of a venture properly see to its management. Answering the question of “who will watch the watchers?,” the derivative action provides a means by which the discharge of the managerial function may be policed, giving true effect to the fiduciary and other obligations imposed on (and voluntarily undertaken by) those entrusted with oversight and control of the venture.Where the statute governing an organizational form lacks an express provision addressing derivative actions, equity will supply the rules for actions in that context. There is no justification for the view that in the absence of a statute on derivative actions they do not exist, just as there is no justification for the view that the capacity to bring a derivative action is dependent upon shareholder status.For purposes of clarity, assuming there can be agreement as to the terms thereof, it would be of benefit that all organizational forms expressly address the requirements for derivative actions; there exists as well the question as to whether a single statutory provision common to all organizational forms would be the best means of addressing the question. Until that day, where the statute is silent, reference needs to be made to equity to ascertain the mechanism by which the watchers will be watched.

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[1] Thomas E. Rutledge is a member of Stoll Keenon Ogden PLLC resident in the Louisville, Kentucky, office. A frequent speaker and writer on business organization law, he has published in journals including The Business Lawyer, the Delaware Journal of Corporate Law, the American Business Law Journal and the Journal of Taxation, and is an elected member of the American Law Institute.

[2] Ky. Rev. Stat. Ann. §§ 275.001–.540 (West, Westlaw through 2014 Legislation).

[3] Id. §§ 273.161–.390 (West, Westlaw through 2014 Legislation).

[4] A “derivative action” is subject to at least two definitions. The first is that it is an action brought in the name and for the benefit of a business entity, other than by the business entity, to enforce its rights. The second, that it is an action brought in the name and for the benefit of a business entity against the wishes of those otherwise in control of the entity, in the name and for the benefit of the entity to enforce its rights.

[5] Derivative actions are provided for in Ky. Rev. Stat. Ann. § 271B.7–400 (West, Westlaw through 2014 Legislation) (relating to business corporations); id. §§ 362.511 to .517, 362.2-932 to -935 (relating to limited partnerships); Ky. Rev. Stat. Ann. § 386A.6-110(2) (relating to statutory trusts). See also id. §§ 272A.13-010 to -050 (relating to derivative actions in limited cooperative associations). The first Kentucky statute recognizing the right to bring some form of derivative action was not adopted until 1946, significantly subsequent to the clear appearance of the “derivative action” in Kentucky law. See Act of March 21, 1946, ch. 141 §§ 381, 425, 1946 Ky. Acts, repealed by Act of March 17, 1972, ch. 274 §§ 1195, 1308, 1972 Ky. Acts.

[6] Ky. Rev. Stat. Ann. §§ 275.001–.540 (West, Westlaw through 2014 Legislation); id. §§ 273.161–.390. The statement that the Kentucky Nonprofit Corporation Acts is silent as to “derivative actions” sould be clarified. While the label “derivative” is not therein employed, and while the statute does not have a detailed procedural provision equivalent to that found in other acts, see, e.g., id. §§ 272A.13-010 to -050, suits on behalf of the entity initiated by other than the board of directors are clearly contemplated. In response to actions that may be ultra vires, the statute contemplates “a proceeding by a member or a director against the corporation to enjoin” the improper action. Id. § 273.173(1). Further, the statute contemplates a “proceeding by the corporation” acting “through members in a representative suit, against the officers or directors of the corporation for exceeding their authority.” Id. § 273.173(2). Working from the supposition that actions of the board of directors that do not satisfy the aspirational standard of conduct fall within “exceeding their authority,” then the Kentucky Nonprofit Corporation Acts does by statute authorize derivative actions on behalf of a nonprofit corporation. Furthermore, Ky. Rev. Stat. Ann. § 273.215(6) refers to a “person bringing an action for monetary damages” based upon a director’s failure to discharge their fiduciary obligations. Accord id. § 273.229(6) (detailing an equivalent provision as to officers of a nonprofit corporation). In neither instance is “the person” bringing an action to vindicate the rights of the corporation (and bearing the defined burden of proof) restricted to the corporate entity itself. See also id. § 273.161(14) (defining a person as including an individual and an entity). Further, it is provided that each director consents to the jurisdiction of the Kentucky courts with respect to “any action by, in the name of, or on behalf of the corporation.” Id. § 273.211(5). A suit “in the name” or “on behalf” of the corporation in which a director is named as a defendant is clearly derivative in nature. See also Thomas E. Rutledge, The 2012 Amendments to Kentucky’s Business Entity Statutes, 101 Ky. L.J. Online 1, 7 (2012) (describing the provision as applying “when a derivative action is filed against [a] director.”).

[7] See also Ky. Rev. Stat. Ann. § 275.003(1) (West, Westlaw through 2014 Legislation).

[8] See, e.g., Pixler v. Huff, No. 3:11-CF-00207-JHM, 2012 WL 3109492, *3 (W.D. Ky. July 31, 2012) (applying in the context of an LLC the test traditionally applied in corporations as to the direct versus derivative distinction and determined whether certain claims brought by a member could be brought only on a derivative basis); id. (“Therefore, Plaintiff may maintain her claims against the Defendants only where she has suffered an injury that is separate and distinct from that which would be suffered by other members or the LLC as an entity.”); R.C. Tway Co. v. High Tech Performance Trailers, LLC, No. 3:12-CV-122, 2013 WL 842577, *3 (W.D. Ky. Mar. 6, 2013) (“Each of the claims identified above clearly alleges that High Tech or Hanusosky violated some duty it owed directly to [Performance Trailers], thus causing [Performance Trailers] injury. As [Performance Trailers] is the allegedly injured party for each of these claims, it is the one that is entitled to enforce the rights granted by substantive law. Accordingly, [Performance Trailers] is not a nominal party, but instead is a real party in interest as to those claims.”); Chou v. Chilton, Nos. 2009-CA-002198-MR, 2009-CA-002284-MR, 2014 WL 2154087, *4 (Ky. Ct. App. May 23, 2014) (“[The LLC] and not Chou himself would benefit from any recovery for the misappropriation of funds and opportunities. . . . While Chou may or may not receive funds from [the LLC] on dissolution of that company, any wrongs for misappropriation perpetrated by any of the [defendants] would be wrongs against [the LLC] and not Chou individually.”); Turner v. Andrews, 413 S.W.3d 272, 277–78 (Ky. 2013) (rejecting effort by the sole member of an LLC to bring a claim for lost profits on his own behalf rather than on behalf of the LLC.). See also Carter G. Bishop & Daniel S. Kleinberger, Limited Liability Companies: Tax and Business Law ¶ 10.07[2] (2012 and 2014–2 cum. supp.) (“Many LLC statutes expressly authorize derivative actions, but some do not. This distinction should make little difference. Derivative litigation began in the corporate context over 150 years ago without the benefit of statutes, and remains essentially equitable in nature.”) (citation omitted).

[9] See James B. Ames, The Origin of Uses and Trusts, 21 Harv. L. Rev. 261, 265 (1908). While the trust, the separation of legal and beneficial title, may have had its structural genesis in German law, the advance of the English courts of equity was to convert the “‘trustee’s’ obligations from those based upon honor to those enforceable in equity.” See generally Joseph Willard, Illustrations on the Origin of Cy Pres, 8 Harv. L. Rev. 10 (1894). As to the treatment under Kentucky law of the assets of a firm as a “trust fund to be used for the benefit of creditors and shareholders,” see Metropolitan Fire Ins. Co. v. Middendorf, 188 S.W. 790, 794 (Ky. 1916) (citation omitted). The first recognition of the derivative action in American law has been traced to the decision rendered by Chancellor Kent in Attorney General v. Utica Ins. Co., 2 Johns. Ch. *371, *389–90 (N.Y. Ch. 1817), namely:

[b]ut, at the same time, I admit, that the persons who, from time to time, exercise the corporate powers, may, in their character of trustees, be accountable to this Court for a fraudulent breach of trust; and to this plain and ordinary head of equity, the jurisdiction of this Court over corporations ought to be confined.

***

Nor does the case, as charged, amount to a breach of trust, of which I am to take notice. There is no complaint, on the part of the stockholders, of misconduct, nor is the information founded on anything of that kind. If there had been a prosecution instituted for a breach of trust, it would have been by bill, and against individuals by name, calling them to account for the use and benefit of the company at large.

See also Bert S. Prunty, Jr., The Shareholders’ Derivative Suit: Notes on its Derivation, 32 N.Y.U. L. Rev. 980, 987 (1957).

[10] See, e.g., Tzolis v. Wolff, 884 N.E.2d 1005, 1006 (2008) (“[The derivative action] was not created by statute, but by case law.”); Ross v. Bernhard, 396 U.S. 531, 534 (1970) (“The remedy made available in equity was the derivative suit, viewed in this country as a suit to enforce a corporate cause of action against officers, directors, and third parties.”) (emphasis in original). See Prunty, supra note 9, for a further review of the parallel development of the derivative action in English and American law.

[11] Barrett v. S. Conn. Gas Co., 374 A.2d 1051, 1055 (Conn. 1977) (citation omitted).

[12] Juvenal, Satire IX, lines 347–48.

[13] Tzolis, 884 N.E.2d at 1006–07 (citations omitted) (emphasis in original).

[14] See also Weber v. King, 110 F. Supp. 2d 124, 131 (E.D. N.Y. 2000).

[15] While it is certainly difficult to prove a statutory negative, the absence of derivative action provisions in the corporate statute of this era can be confirmed. See generally Gardner K. Byers, Byers on Kentucky Corporations (The W.H. Anderson Company) (1923).

[16] Jones v. Johnson, 73 Ky. (10 Bush) 649, 660 (Ky. 1874).

[17] Collier v. Deering Camp Ground Ass’n., 66 S.W. 183, 183 (Ky. 1902); see also Gregory v. Bryan-Hunt Co., 174 S.W.2d 510, 512–13 (Ky. 1943) (holding that a 50% shareholder could not for himself bring an action based upon injury to corporation and its property).

[18] Pittsburg, C., C. & St. L. Ry. Co. v. Dodd, 72 S.W. 822, 828 (Ky. 1903) (citation omitted).

[19] Reinecke v. Bailey, 112 S.W. 569, 570 (Ky. 1908). The court went on to state that:

It is well settled that an action to recover corporate property must be brought in the name of the corporation, and such an action cannot be maintained by one or more stockholders unless it should be shown that the corporation or its directors declined to bring the action, and that the interests of the stockholders may it necessary that one should be instituted. When this state of case is presented, and action to recover corporate property or to protect the interests of the corporation may be brought by the stockholders.

Id. at 571 (citation omitted). See also Shawhan v. Zinn, 79 Ky. 300, 304 (Ky. 1881); Gilman v. German Lithographic Stone Co., 153 S.W. 996, 997 (Ky. 1913) (setting forth the demand requirement). The futility defense to not having made a demand was seen as early as 1913. See Chilton v. Bell County Coke & Improvement Co., 156 S.W. 889, 890 (Ky. 1913); Lebus v. Stansifer, 157 S.W. 727, 729 (Ky. 1913). In Butler Tobacco Co. v. Vest, the court stated:

The demand may be dispensed with, if the officers have such relations to the acts complained of, or bear such relations to the adversary party, as to show their interests to be antagonistic to the corporation, or that it would be improper for the action to proceed in the name of the corporation while it should remain under their control, in which state of circumstances an action may be maintained or a defense made for the corporation by a stockholder.

178 S.W. 1102, 1105 (Ky. 1915).

[20] Butler Tobacco Co., 178 S.W. at 1104; Lebus, 157 S.W. at 729; Chilton, 156 S.W. at 890; Gilman, 153 S.W. at 997 (demonstrating the requirement in equity to have made demand or be able to plead the futility hereof).

[21] See Ky. Rev. Stat. Ann. § 273.187(2) (West, Westlaw through 2014 Legislation); id. § 275.150(1); id. § 275.240(1) (showing that both the LLC and the nonprofit corporation utilize the same rules of affirmative and negative asset partitioning as does the business corporation, rules that create the cestui que trust equivalency that initially gave rise to the derivative action.).

[22] See also Charles Kerr, Responsibilities of Officers and Directors of Private Corporations, Proceedings of the 11th Annual Meeting of the Kentucky State Bar Association, 136, 139–40 (1912), reprinted in Charles Kerr, Responsibilities of Officers and Directors of Private Corporations, 47 Am. L. Rev. 561, 563–64 (1913).

[23] Examples include LLCs, nonprofit corporations, limited partnerships governed by the pre-1970 law, and limited partnerships governed by the 1970 limited partnership act. See Act of March 20, 1970, ch. 97 §§ 1-27, 1970 Ky. Acts. While it is entirely accurate that much of the law of corporations and other business organizations has been reduced to statute, and for that reason the first reference needs to be to the organizational act, see Pannell v. Shannon, 56 S.W.3d 58, 79 (Ky. 2014), it remains true that not every rule governing business organizations has been reduced to statute. For example, while it is uncontroverted that corporate directors may not vote by proxy, that rule is not set forth in the Kentucky statutes governing corporations. See, e.g., Haldeman v. Haldeman, 197 S.W. 376, 381 (Ky. 1917); 2 Arthur W. Machen, Jr., A Treatise on the Modern Law of Corporations §§ 1455, 1458 (Little, Brown & Co. 1908).

[24] See, e.g., Marbury v. Madison, 5 U.S. 137, 163 (1803); Leo Feist, Inc. v. Young, 138 F.2d 972, 974 (7th Cir. 1943); see also 1 Fred E. Lawrence, A Treatise as to the Substantive Law of Equity Jurisprudence § 38 (1929).

[25] See Ky. Rev. Stat. Ann. § 273.215 (West, Westlaw through 2014 legislation) (regarding directors); id. § 273.227 (regarding officers). Of themselves these standards are the same as those applied to directors and officers of business corporations. See id. §§ 271B.8-300, -420. All of those provisions were adopted in 1988. See Act of April 15, 1988, ch. 23 §§ 85, 89–90, 133, 149, 1988 Ky. Acts. Likewise the LLC Act specifies the fiduciary obligation of the members, if the LLC is member managed, and of the managers, if the LLC is manager managed. See Ky. Rev. Stat. Ann. §§ 275.170(1)-(2), (4).

[26] Ky. Rev. Stat. Ann. § 273.215(1)(c) (West, Westlaw through 2014 legislation); Ballard v. 1400 Willow Council of Co-Owners, Inc., 430 S.W.3d 229, 241 (Ky. 2013) (stating that fiduciary duties of directors are owed to the corporation and not to the individual members thereof). In the context of the LLC the duty of care is owed to the LLC and the other members while the duty of loyalty is owed only to the LLC. See Ky. Rev. Stat. Ann. § 275.170(1)–(2). See also Thomas E. Rutledge, Limited Liability Company Operations, Limited Liability Companies in Kentucky 1, 48–67 (2014-1 Supp.), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=212920. [hereinafter Limited Liability Company Operations].

[27] Ky. Rev. Stat. Ann § 273.215(5) (West, Westlaw through 2014 legislation).

[28] See id. § 273.207 (West, Westlaw through 2014 legislation) (“The affairs of a corporation shall be managed by a board of directors.”). The management structure of an LLC is determined by private ordering in the operating agreement. Even where the LLC is managed by managers, there is a statutory option by which the members may cause the LLC to initiate a legal action, including against a manager. See id. § 275.335(1). Such a suit is not, however, a derivative action. Limited Liability Company Operations, supra note 26, at 109.

[29] See Wilson v. Payne, 288 S.W.3d 284 (Ky. 2009); see also Mary C. Garris, “Adverse Domination” – Tolling the Statute of Limitations in Kentucky Business Organizations, 99 Ky. L. J. Online 36 (2011).

[30] See Ky. Rev. Stat. Ann. § 273.233 (West, Westlaw through 2014 Legislation) (“All books and records of a corporation may be inspected and copied by any member . . . for any proper purpose at any reasonable time.”). In American Saddlebred Horse Association, Inc. v. Bennett, No. 09-CI-5292, at *5–7 (Ky. Cir. Ct. Dec. 2, 2010), Judge Ishmael of the Fayette Circuit Court held that this statute should be read broadly, and that the “All books and records” would not be limited to the list enumerated in the preceding sentence of the statute.

[31] Fed. R. Civ. P. 23.1.

[32] 28 U.S.C. § 1332(c)(1) (West, Westlaw through 2014 Legislation) (stating that a corporation is a citizen of its jurisdiction of incorporation and that in which it maintains its principal place of business).

[33] See, e.g., Berg v. Cincinnati, Newport & Covington Ry. Co., 56 F. Supp. 842, 847 (E.D. Ky. 1944).

[34] Id. at 846–47.

[35] 28 U.S.C. § 1332(a)(4).

[36] Model Bus. Corp. Act § 7.41 (2002); Ky. Rev. Stat. Ann. § 271B.7-400(1) (West, Westlaw through 2014 Legislation).

[37] See, e.g., Ky. Rev. Stat. Ann. §§ 362.511–.517. (West, Westlaw through 2014 Legislation); id. §§ 362.2-932– .935; Revised Unif. Ltd. P’ship Act §§ 1001–04 (amended 1985), 6B U.L.A. 370–85 (Supp. 2008); Unif. Ltd. P’ship Act §§ 1002–05, 6A U.L.A. 500–02.

[38] See Ky. Rev. Stat. Ann. § 272A.13-010 (West, Westlaw through 2014 Legislation); Unif. Ltd. Coop. Ass’n Act §§ 1301–05, 6A U.L.A. 295–98 (Supp. 2008).

[39] Ky. Rev. Stat. Ann. § 386A.6-110(2) (West, Westlaw through 2014 Legislation).

[40] See, e.g., N. Am. Catholic Educ. Programming Found., Inc. v. Gheewalla, 930 A.2d 92, 101 (Del. 2007); In re Trailer Source, Inc., 555 F.3d 231, 240 (6th Cir. 2009); Sanford v. Waugh & Co., Inc., 328 S.W.3d 836, 839 (Tenn. 2010).

[41] See N.Y. Bus. Corp. Law § 1507 (McKinney 2014).

[42] Bernfield v. Kurilenko, 937 N.Y.S.2d 314, 314 (N.Y. App. Div. 2012).

[43] See, e.g., George Wasserman & Janice Wasserman Goldsten Family L.L.C. v. Kay, 14 A.3d 1197, 1215–16 (Md. Ct. Spec. App. 2011) (stating the partner’s “ability to act on behalf of the partnership” may be ineffective when those with the controlling interests are unwilling to cause the partnership to sue those in control for alleged misconduct, in which case the “partnership claim may be enforced by all of the disinterested partners.”) (emphasis supplied); Cates v. Int’l Tel. & Tel. Corp., 756 F.2d 1161, 1179 (5th Cir. 1985) (“[w]here the controlling partners, for improper, ulterior motives and not because of what they in good faith believe to be the best interests of the partnership, decline to sue on a valid, valuable partnership cause of action which it is advantageous to the partnership to pursue.” the minority partners must have a right to initiate the action).

[44] See supra notes 10–12 and accompanying text.

[45] Tzolis v. Wolff, 884 N.E.2d 1005, 1006 (N.Y. Ct. App. 2008).

[46] Morgan v. Robertson, 609 S.W.2d 662, 664–65 (Ark. Ct. App. 1980).

[47] Kirtley v. McClelland, 562 N.E.2d 27, 29 (Ind. Ct. App. 1990) (identifying the issue raised on appeal as “[w]hether the court erred in denying defendant’s motion to dismiss the second amended complaint where no Indiana statutory or common law authority exists for a shareholder’s derivative suit against a non-profit corporation.”). See also id. (“The directors emphasize the absence of express statutory authorization in the Indiana Not-for-Profit Corporation Act of 1971 . . . and case law addressing use of the derivative remedy by members of nonprofit corporation.”).

[48] Id. at 30-31 (citation omitted); see also Brenner v. Powers, 584 N.E.2d 569, 574 (Ind. Ct. App. 1992).

[49] Bourne v. Williams, 633 S.W.2d 469, 471–72 (Tenn. Ct. App. 1981).

[50] Id. at 472 (citation omitted). Since then, the source the court relied on has been rewritten and now provides: “[t]he preconditions for a derivative proceeding may not be affected by the kind of corporation; the procedural requirements governing such actions may apply to a nonprofit corporation exactly as if it were a business corporation.” 13 William Meade Fletcher, et al., Fletcher’s Cyclopedia of the Law of Private Corporations § 5972.60 (2004) (citation omitted). In Leeds v. Harrison, the court stated that:

[u]nlike most corporations for profit, a corporation not for pecuniary profit normally has no stockholders, but in place thereof it has members. The same rights and liabilities exist between the trustees of a non-profit corporation and the members as exist between the directors and stockholders of a corporation for profit. The suit here brought may be likened to a derivative or representative suit brought in connection with a stock corporation. The law applicable to such suits is, so far as is here pertinent, applicable to this suit.

72 A.2d 371, 377 (N.J. Super. Ct. Ch. Div. 1950).

[51] Bourne, 633 S.W.2d at 473.

[52] Fox v. Prof’l Wrecker Operators of Fla., 801 So. 2d 175, 179 (Fla. Dist. Ct. App. 2001).

[53] Id.

[54] Id. at 180.

[55] Larsen v. Island Developers, Ltd., 769 So. 2d 1071, 1072 (Fla. Dist. Ct. App. 2000) (citation omitted); see also Nonprofit Corporation Act Task Force, Official Commentary to the Revised Oregon Nonprofit Corporation Act, 71 Or. L. Rev. (Special Issue) 1, 69 (1992) (“While Oregon has no general statutory provision for members’ derivative actions in a nonprofit corporation, a court would likely recognize such an action.”). Further, the article stated that:

[c]ommentators recommend extending the remedy of a derivative action to members of nonprofit corporations. They indicate that while statutes may regulate and occasionally preempt the common law action, a statute has never been thought necessary in order to authorize a derivative action. Indeed, the derivative suit predated derivative suit statutes.

Id. at 70.

[56] Porter v. Shelbyville Cemetery Co., No. 2007-CA-002545-MR, 2009 WL 722995, at *4 (Ky. Ct. App. Mar. 20, 2009).

[57] Id. at *1 (“Grove Hill failed to comply with any of the requirements of Chapter 32 and accordingly suffered the revocation of its corporate charter in 1897.”).

[58] Id. at * 2–3.

[59] See Ky. Rev. Stat. Ann. § 273.173 (West, Westlaw through 2014 Legislation). See also supra textual discussion in note 6.

[60] Fenley v. Kamp Kaintuck, Inc., No. 2010-CA-001926-MR, 2011 WL 5443440, at * 3 (Ky. Ct. App. Nov. 10, 2011). Further, in Ballard v. 1400 Willow Council of Co-Owners, Inc., 430 S.W.3d 229, 243–45 (Ky. 2013) Justice Noble’s dissent (joined by Justice Scott) discussed claims that may be brought only on a derivative basis. 1400 Willow was a nonprofit corporation. Id.

[61] Hawes v. City of Oakland, 104 U.S. 450, 460–61 (1882). The court describes this procedure in the following passage:

[H]e [the shareholder] should show to the satisfaction of the court that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances, or action in conformity to his wishes. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made apparent to the court. If time permits or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body, in the matter of which he complains. And he must show a case, if this is not done, where it could not be done, or it was not reasonable to require it.

The efforts to induce such action as complainant desires on the part of the directors, and of the shareholders when that is necessary, and the cause of failure in these efforts should be stated with particularity, and an allegation that complainant was a shareholder at the time of the transactions of which he complains, or that his shares have devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction in a case of which it could otherwise have no cognizance, should be in the bill, which should be verified by affidavit.

Id.

[62] See, e.g., Ky. Rev. Stat. Ann. § 271B.7-400(1) (West, Westlaw through 2014 Legislation); id. § 362.513 (West 2007); id. § 362.2-933; id. § 386A.6-110(3); Bacigalupe v. Kohlhopp, 240 S.W.3d 155, 157 (Ky. Ct. App. 2007).

[63] See, e.g., Collier v. Deering Camp Ground Ass’n, 66 S.W. 183, 183 (Ky. 1902) (“and if the company, after proper demand refuses to sue, appellant might maintain an action for the benefit of the corporation.”); Reinecke v. Bailey, 112 S.W. 569, 571 (Ky. 1908). See also Flint v. Jackson, No. 2014-CA-000426-MR, 2014 WL 7206835, at *1, *4 (Ky. App. Dec. 19, 2014) (derivative action dismissed on the basis that shareholder had not plead demand made upon the board and failure to adequately represent the “interests of the similarly situated shareholders in representing the rights of the corporation. . .”).

[64] Fernley v. Kamp Kaintuck, Inc., No. 2010-CA-001926-MR, 2011 WL 5443440, at *3 (Ky. App. Nov. 10, 2011) at *3 (“We are convinced that continuing membership in a nonprofit corporation is an absolute requisite to maintaining a derivative action.”). Curiously, at footnote 2, the Court of Appeals expressly reserved the question of whether a member in good standing may on behalf of a nonprofit corporation bring a derivative action, characterizing the question as moot in light of its resolution of the dispute. See id. at n.2. This explanation is curious in that the claims were dismissed based upon the application of the law of derivative actions. If the derivative action does not exist in the context of a nonprofit corporation, how could the rules of that type of action be applied? One is reminded of the disclaimer for South Park: “All characters and events in this show – even those based on real people – are entirely fictional.”

[65] See infra text accompanying notes 109–112.

[66] See Snyder v. Baumgardner, No. 09-CI-04445, at *3 (Ky. Cir. Ct. Aug. 15, 2010) (rejecting the suggestion that pursuant to Section 7.01(d) of the Principles of Corporate Governance, the plaintiffs be permitted to proceed on an individual, rather than a derivative basis, writing that the Principles had not been adopted by Kentucky courts).

[67] Reinecke v. Bailey, 112 S.W. 569 (Ky. 1908).

[68] Id. at 570.

[69] Id.

[70] Id. at 570–71.

[71] See id. at 571.

[72] Sahni v. Hock, 369 S.W.3d 39 (Ky. Ct. App. 2010).

[73] See id. at 42–44.

[74] Id. at 47. See also NBD Bank, N.A. v. Fulmer, 109 F.3d 229, 229 (6th Cir. 1997); Vinson v. Koerner, No. 2000-CA-001217-MR, at 6 (Ky. Ct. App. Nov. 9, 2001), available at http://law.justia.com/cases/kentucky/court-of-appeals/2001/2000-ca-00121.

[75] See, e.g., Smith v. Sparling, 354 U.S. 91, 92–97 (1957); Doctor v. Harrington, 196 U.S. 579, 585–587 (1905); Gabriel v. Pruble, 396 F.3d 10, 13 (1st Cir. 2005). See also 7C Charles Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1822 (3d. ed. 2007); 19 Am. Jur 2d. Corporations § 2071.

[76] Ross v. Bernhard, 396 U.S. 531, 538 (1970).

[77] See id. at 542–543. See also Right to Jury Trial in Shareholder Derivative Suits, 1970 Duke L.J. 1015, 1031 (1970).

[78] See, e.g., Ky. Rev. Stat. Ann. § 271B.7-400(3) (West, Westlaw through 2014 Legislation); id. § 386A.6-110(6); id. § 272A.13-040.

[79] Denicke v. Anglo California Nat. Bank of San Francisco, 141 F.2d 285, 288 (9th Cir. 1944) (quoting Whitten v. Dabney, 154 P. 312, 316 (Cal. 1915)) (citation omitted).

[80] Id. at 288 (citations omitted). See also Morgan v. Robertson, 609 S.W.2d 662, 663 (Tenn. Ct. App. 1980) (“in derivative suits the corporation is the real party in interest, although the real parties in litigation were the stockholders.”) (citing Breswick & Co. v. O Henry Briggs, 135 F. Supp. 397 (S.D.N.Y. 1955)).

[81] Louisville Bridge Co. v. Dodd, 85 S.W. 683 (Ky. 1905).

[82] Id. at 684; see also Burley Tobacco Co. v. Vest, 178 S.W. 1102, 1105 (Ky. 1915).

[83] Louisville Bridge Co., 85 S.W. at 684.

[84] Id.

[85] See, e.g., Ky. Rev. Stat. Ann. §§ 362.517 & 362.2-935 (West, Westlaw through 2014 Legislation); id. § 386A.6-110(9)(6); id. § 272A.13-050(2)(6). No equivalent provision exists in the Business Corporation Act, although the ability of the prevailing plaintiff to recover attorney fees is not contested.

[86] See Ky. Rev. Stat. Ann. § 412.070 (West, Westlaw through 2014 Legislation); see also Ky. State Bank v. AG Services, Inc., 663 S.W.2d 754, 755 (Ky. Ct. App. 1984) (acknowledging the common fund doctrine).

[87] Compare Ky. Rev. Stat. Ann. § 271B.7-400(4) (West, Westlaw through 2014 Legislation) (subjecting plaintiff to liability for defendant’s attorney fees if the “proceeding was commenced without reasonable cause”), with id. § 386A.6-110(9)(a) (subjecting plaintiff to liability for defendant’s expense and reasonable attorney fees if the “proceeding or any portion thereof was commenced without reasonable cause or for an improper purpose.”). See also id. § 272A.13-050(2)(a). The limited partnership acts are silent as to fee-shifting against the plaintiff.

[88] See Ky. Rev. Stat. Ann. § 273.171(14) (West, Westlaw through 2014 Legislation) (power to indemnify directors and officers). Often corporations will purchase directors and officers insurance as a mechanism of satisfying these obligations. Care needs to be taken to ensure sure that the coverage is effective. See, e.g., Lake Cumberland Report Cmty. Ass’n, Inc. v. Auto Owners Ins. Co., No. 2010-CA-001725-MR, 2012 WL 1758108, at *3 (Ky. Ct. App. May 18, 2012) (finding that coverage should be denied on the basis that the corporation had agreed to indemnify directors from claims asserted).

[89] Rule 11 sanctions will serve to protect the corporation from truly frivolous claims. See Flint v. Jackson, No. 2014-CA-000426-MR, 2014 WL 7206835, at *5–6 (Ky. Ct. App. Dec. 19, 2014) (concurring opinion); see also Sahni v. Hock, 369 S.W.3d 39, 48 (Ky. Ct. App. 2010).

[90] But see Janssen v. Best & Flanigan, 662 N.W.2d 876, 887–88 (Minn. 2003) (allowing use of special litigation committee in context of derivative action brought on behalf of nonprofit corporation). In an LLC, it should be possible to provide for a special litigation committee in the operating agreement.

[91] See generally Ky. Rev. Stat. Ann. § 273.167 (West, Westlaw through 2014 Legislation).

[92] See Deborah A. DeMott, Self-Dealing Transactions in Nonprofit Corporations, 59 Brook. L. Rev. 131, 133 (1993) (“Highly-publicized incidents of self-dealing by directors and executive officers have afflicted several well-known nonprofits in recent years. In the most visible incident, the United Way of America lent $2.1 million in 1990 to a for-profit spinoff headed by the son of United Way's executive director. With the board’s support, the executive director, who received $463,000 annually in compensation, had previously created three for-profit spinoffs that performed services for the United Way and staffed them with friends and family members.”) (citation omitted).

[93] See Kathryn Varn, Police: Woman Embezzled $200k from Red Cross, The Independent Fla. Alligator (Nov. 1, 2013), http://www.alligator.org/news/crime/article_89b2c264-42ac-11e3-8232-001a... see also Former New York Red Cross Financial Director Sentenced for Stealing More than $274,000 from the Humanitarian Organization, N.Y. Daily News (Feb. 27, 2013), http://www.nydailynews.com/new-york/ny-red-cross-worker-sentenced-theft-.

[94] See Andrew Wolfson, Louisville Man Sentenced for Theft from his Charity, The Courier-Journal (Sept, 5, 2014), http://www.cincinnati.com/story/news/2014/09/05/usa-harvest-stan-curtis-sentenced/15136199/.

[95] See Man Accused of Embezzling Money from Elks Lodge, WIVB (June 16, 2014), http://wivb.com/2014/06/16/man-accused-of-embezzling-money-from-elks-lod... see also Thomas Dimopoulos, Saratoga-Wilton Elks Club Fraud Amount Continues to Rise, PostStar.com (Feb. 3, 2011), http://poststar.com/news/local/saratoga-wilton-elks-club-fraud-amount-co.

[96] See Women Pleads Guilty to Embezzling $360,000 from Nuns, N.Y. Daily News (April 3, 2012), available at http://www.nydailynews.com/news/national/women-pleads-guilty-embezzling-... Chicagoan Charged with Stealing from Nuns, Chicago Tribune (April 17, 2010), available at http://articles.chicagotribune.com/2010-04-17/news/ct-met-little-sisters.

[97] See Women Pleads Guilty to Embezzling $360,000 from Nuns, N.Y. Daily News (April 3, 2012), available at http://www.nydailynews.com/news/national/women-pleads-guilty-embezzling-... Chicagoan Charged with Stealing from Nuns, Chicago Tribune (April 17, 2010), available at http://articles.chicagotribune.com/2010-04-17/news/ct-met-little-sisters.

[98] See Christina Hall & Olivia Lewis, Ex-Treasurer Accused of Stealing $300K from Clinton Twp. Little League, Detroit Free Press (Sept. 10, 2014, 8:37 PM), http://www.freep.com/story/news/local/michigan/macomb/2014/09/10/woman-a... Rex Hall Jr., Former Three Rivers Little League President Charged with Embezzling Thousands, MLive (Nov. 27, 2012, 2:26 PM), http://www.mlive.com/news/kalamazoo/index.ssf/2012/11/little_league_pres.

[99] See Ky. Rev. Stat. Ann. § 381.9165 (West, Westlaw through 2014 Legislation) (explaining that condominium associations may be organized as nonprofit corporations); McMillan v. Ryan Jackson Properties, LLC, 753 S.E.2d 373, 375 (N.C. Ct. App. 2014) (derivative action brought on behalf of condominium association organized as a nonprofit corporation); Marucci v. Southwark Realty Co., 2002 Ct. Com. Pl., at *1 (Pa. C.P. Phila. Cnty. May 15, 2002) (on file with author) (derivative action brought on behalf of nonprofit corporation); George Gombossy, Milford Resident Admits Embezzling from Ct Condo Associations, Ct Condo News (May 18, 2014), http://www.ctcondonews.com/2014/05/18/milford-resident-admits-embezzling... Aleese Kopf, Ex-Condo Association President, 82, Arrested on Embezzlement Charges in West Palm Beach, PalmBeachPost.com (July 11, 2014, 6:28 PM), http://www.palmbeachpost.com/news/news/crime-law/former-condo-assn-presi.

[100] John Jimison, Woman Accused of Embezzling from Country Club, The Wilson Times (Dec. 16, 2014, 3:23 PM), http://www.wilsontimes.com/News/Feature/Story/embezzlement-story; Press Release, supra note 29.

[101] See, e.g., Paul L. Davies, The Board of Directors: Composition, Structure, Duties and Powers, Organization for Economic Co-operation and Development, at *6 (Dec. 7–8, 2000), http://www.oecd.org/corporate/ca/corporategovernanceprinciples/1857291.pdf (pointing out that in the absence of strong shareholders, boards are likely to be “captured” by management and become “expressions” of their will even as they are unaccountable to shareholders); see also Richard P. Chait, William P. Ryan & Barbara E. Taylor, Governance as Leadership: Reframing the work of Nonprofit Boards 3 (2005) (discussing capture of management by CEO with board abdication of oversight).

[102] See, e.g., Peter Pitegoff & Dan Boxer, Maine Voices: Lack of Oversight Will Cost Midcoast Charity, Portland Press Herald (Oct. 19, 2014), http://www.pressherald.com/2014/10/19/maine-voices-lack-of-oversight-wil.

[103] See, e.g., Evelyn Brody, Agents Without Principals: The Economic Convergence of the Nonprofit and For-Profit Organizational Forms, 40 N.Y.L. Sch. L. Rev. 457, 461 (1996) (“In the end, the same economic force motivates nonprofit firms as for-profit firms: the desire for a reputation as a worthy recipient of future trade, be it donations, purchase of services, government contracts, or labor.”).

[104] See generally Carter G. Bishop, The Deontological Significance of Nonprofit Corporate Governance Standards: A Fiduciary Duty of Care Without a Remedy, 57 Cath. U. L. Rev. 701, 757–75 (2008) (explaining the policing of the fiduciary duties of loyalty and care through federal tax governance of nonprofit self-dealing and excess transactions).

[105] See In re Caremark Int'l Inc., 698 A.2d 959, 967 (Del. Ch. 1996); see also David B. Shaev Profit Sharing Account v. Armstrong, No. Civ. A. 1449-N, 2006 WL 391931, at *5 (Del. Ch. Feb. 13, 2006); Guttman v. Huang, 823 A.2d 492, 505–06 (Del. Ch. 2003).

[106] Under current Kentucky law, the default is that a nonprofit corporation has members; the absence of members requires an affirmative statement in the articles of incorporation or the bylaws. See Ky. Rev. Stat. Ann. § 273.187(1) (West, Westlaw through 2014 Legislation).

[107] Thomas Lee Hazen & Lisa Love Hazen, Punctilios and Nonprofit Corporate Governance—A Comprehensive Look at Nonprofit Directors’ Fiduciary Duties, 14 U. Pa. J. Bus. L. 347, 411 (2012); see generally Howard L. Oleck & Martha E. Stewart, Derivative Actions and Class Actions, in Nonprofit Corporations, Organizations, & Associations 1364, 1364–67 (6th ed. 1994) (discussing derivative actions in nonprofit corporations, including standing, and offering no suggestion that such actions are improper).

[108] See Fletcher, supra note 50, § 5972.60 (2004) (“Members or directors of nonprofit corporations may have standing to bring derivative proceedings. The plaintiff does not lose standing even though the plaintiff's voting rights may be restricted.”).

[109] See Restatement (Second) of Trusts § 200, cmt. e (1959) (“If there are several trustees, one or more of them can maintain a suit against another to compel him to perform his duties under the trust, or to enjoin him from committing a breach of trust, or to compel him to redress a breach of trust committed by him.”); see also Holt v. Coll. of Osteopathic Physicians and Surgeons, 394 P.2d 932, 937 (Cal. 1964); 19 Am. Jur. 2d Corporations § 2007 (“in the case of membership or nonprofit corporations, a member, may maintain a corporate derivative suit.”); accord Restatement (Third) of Trusts § 94 (2012).

[110] See generally Ky. Rev. Stat. Ann. § 273.215 (West, Westlaw through 2014 Legislation).

[111] See Chait, supra note 101, at 13 (“[Board members] are faulted for not knowing what is going on in their organizations and not demonstrating much desire to find out. Attendance at board meetings is often spotty and participation perfunctory.”).

[112] Fletcher, supra note 50, § 5972.60 (citations omitted); see also, e.g., Minn. Stat. Ann. § 317A.467 (West, Westlaw through 2014 Legislation). The statute states that:

If a corporation or an officer or director of the corporation violates this chapter, a court in this state, in an action brought by at least 50 members with voting rights or ten percent of the members with voting rights, whichever is less, or by the attorney general, may grant equitable relief it considers just and reasonable in the circumstances and award expenses, including attorney fees and disbursements, to the members.

Id.; Wyo. Stat. Ann. § 17-19-630 (“A proceeding may be brought in the right of a domestic or foreign corporation to procure a judgment in its favor by: (i) Any member or members having five percent (5%) or more of the voting power or by fifty (50) members, whichever is less . . .”); Model Nonprofit Corp. Act (Second) § 6.3 (1997); Model Nonprofit Corp. Act (Third) § 13.02 (2008); accord Principles of the Law of Charitable Nonprofit Organizations §§ 550, 560 (Tentative Draft No. 4, 2013).

Limits to the Class Action Device: The Kentucky Wages and Hours Act Does Not Permit a Class Action

Article | 103 KY. L. J. ONLINE 2 | July 17, 2015

Jeffrey A. Savarise and Timothy J. Weatherholt[1]

I. Introduction

Class action claims for unpaid wages have become pervasive in both state and federal courts. Plaintiff employment attorneys and the ever burgeoning class action law firms are filing these cases throughout the country, including in Kentucky. A wage and hour class action can be extremely lucrative from a financial standpoint for plaintiffs’ counsel. Many of these classes include hundreds, if not thousands, of class members. Assuming a one-third contingency fee, a plaintiff counsel who settles a typical wage and hour class action could easily earn a seven-figure fee.The federal wage and hour law, the Fair Labor Standards Act (“FLSA”), provides for a class mechanism for wage claims – collective actions. However, individuals must “opt in” to the “class,” as opposed to the more traditional “opt out” class actions. Under 29 U.S.C. § 216(b) of the FLSA, a member of the class who is not named in the complaint is not a party unless he or she affirmatively “opts in” by filing a written consent-to-join with the court.[2] This has the obvious effect of limiting the recovery pool. Recent statistics show only around fifteen percent of litigants in federal collective actions actually “opt in” to the litigation.[3] The incentive for a plaintiff counsel to proceed in a state law class action – as opposed to a collective action under the federal law that requires litigants to affirmatively “opt in” to the case – is extremely high.Fortunately, for many members of the plaintiffs’ bar who practice wage and hour cases, most states supplement the basic protections of the FLSA with their own wage and hour laws. Some, but not all of these state laws, permit the class action device. For instance, several state wage and hour statutes explicitly permit an action to be brought on behalf of others.[4] The wage and hour statutes in other states provide more general language that does not authorize, nor preclude, the use of the class action device.[5] In this situation, state courts will typically approve of the class action device.[6] In those cases, plaintiffs are basically limited to the remedy provided under the FLSA.While this issue is settled in practically every state, either by clear statutory text or case law, the question of whether a Kentucky plaintiff can pursue a class action under Kentucky’s Wages and Hours Act (the “Kentucky Act”) remains unresolved.[7] The Kentucky Act is unique in that, on its face, for the reasons explained below, it does not appear to permit class actions. Yet, until recently, courts have taken no issue with plaintiffs pursuing class actions under the Kentucky Act.[8] In fact, it appears no employer/defendant had ever raised the issue prior to the authors of this note. This issue has serious potential consequences, not only due to the differences between “opt in” and “opt out” actions, but also because the statute of limitations under the Kentucky Act is five years[9] and the statute of limitations under the FLSA is only two years for non-willful violations.[10]This note argues Kentucky courts should adhere to the plain language and other extrinsic sources that support the position that class actions are not viable under the Kentucky Act. In Part II, this note will discuss the brief history of KRS 337.385 of the Kentucky Act and a few of the relevant cases discussing how wage and hour claims may proceed. The note will then review the Kentucky Act’s plain language and compare Kentucky’s statutory language to language in similar, but distinct statutes – the FLSA and Kentucky’s statutes prohibiting wage discrimination based on sex. The note will then discuss the opposing view for why the Kentucky Act might not bar class actions. In Part III, this note will discuss the recent decision by the Kentucky Court of Appeals in which it stated, albeit in dicta, the Kentucky Act precludes class actions. In Part IV, the note will discuss why the Court of Appeals was correct, but why a more comprehensive opinion is needed. In Part V, the note will highlight another opinion which provides a roadmap for how this dispute can be resolved. The note will conclude by discussing how the Kentucky General Assembly, not the courts, provides the best opportunity to enable the plaintiffs’ bar to bring class actions under the Kentucky Act.

II. The Kentucky Act: Its History and Text, As Well As Its Similarities and Differences as Compared to Like Statutes

A.The Language of KRS 337.385 Has Remained Remarkably Consistent Over Time

KRS 337.385(1) was first adopted in 1974 and has changed remarkably little over time. The 1974 version provided as follows:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of this Act shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of this Act, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[11]

In 1978, KRS 337.385(1) was revised to read:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to [337.275 and] 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of KRS 337.020 to [337.275 and] 337.385, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves.[12]

In 2010, the language was modified to be gender neutral:

(1) Any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney’s fees as may be allowed by the court. Provided, that if, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[13]

Finally, in 2013, KRS 337.385 was again revised, primarily to address forced labor, and subsection (1) was split into two sections:

(1) Except as provided in subsection (3) of this section, any employer who pays any employee less than wages and overtime compensation to which such employee is entitled under or by virtue of KRS 337.020 to 337.285 shall be liable to such employee affected for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney's fees as may be allowed by the court.

(2) If, in any action commenced to recover such unpaid wages or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he or she had reasonable grounds for believing that his or her act or omission was not a violation of KRS 337.020 to 337.285, the court may, in its sound discretion, award no liquidated damages, or award any amount thereof not to exceed the amount specified in this section. Any agreement between such employee and the employer to work for less than the applicable wage rate shall be no defense to such action. Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.[14]

Throughout these revisions, the essential substance of the last sentence – which now reads, “[s]uch action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves” – remained the same.Between 1974 and 1986, there were only a few occasions where putative class actions reached the appellate level in published decisions. In Orms v. City of Louisville,[15] the issue on appeal concerned the application of Kentucky’s overtime compensation statute, KRS 337.285, to a City of Louisville policy that required its police officers to report fifteen minutes before they began their daily tour of duty.[16] The police officers sought to recover, in a class action, compensation for this time.[17] The Jefferson Circuit Court entered summary judgment for the City, and the Court of Appeals agreed, finding that the collective bargaining agreement at issue was controlling.[18]In City of Louisville v. Gnagie,[19] the plaintiffs/employers, individually and as representatives of the Louisville Firefighters’ Association, sought compensation in a class action suit against the City, pursuant to KRS 337.285, for their fifteen-minute “roll call” prior to each shift.[20 ]Both the City and the employees moved for summary judgment in Jefferson Circuit Court on the issue of liability.[21] The trial court entered summary judgment for the City, holding that the “roll call” period was de minimis,[22] and therefore, non-compensable, but the Court of Appeals reversed the Jefferson Circuit Court and remanded the case for an evidentiary hearing to resolve perceived factual disputes regarding the nature of the work performed during “roll call” and to determine whether the firefighters were customarily released from duty prior to the end of their shifts to compensate for the “roll call” period.[23] The Kentucky Supreme Court reversed the Court of Appeals and affirmed the trial court.[24]Given the procedural postures of Orms and Gnagie, each presented obvious issues tailor-made for the City of Louisville’s attempt at a swift resolution. While the City could have raised the argument that class actions are not viable under the Kentucky Act, it clearly had even stronger arguments at its disposal. Unfortunately for the advancement of the law, a pair of Kentucky Court of Appeals cases decided around the same time as Orms and Gnagie obviated the need to address the statutory language. Collectively, Early v. Campbell Fiscal Court[25] and Noel v. Season-Sash, Inc.[26] stand for the general proposition that the Kentucky Labor Cabinet had original and exclusive jurisdiction over claims brought for the recovery of minimum wage and overtime payments, i.e., there was no right to an original action in the circuit court.[27] The Supreme Court did not overrule these cases until 20 years later in Parts Depot, Inc. v. Beiswenger.[28] Only then were litigants permitted to pursue their wage claims either at the Kentucky Labor Cabinet or in a circuit court.[29]Subsequent to the Supreme Court’s decision in Parts Depot, plaintiffs have brought class actions under the Kentucky Act in a number of cases.[30] This note contends that they lack the authority to do so, and defense practitioners, and to a lesser extent the courts, have missed the mark (at least, that is, until November 2013)[31] in failing to properly consider the meaning of the statutory language.

B. An Analysis Of The Plain Language Of KRS 337.385

1. How Kentucky Courts Analyze Statutes

The Kentucky Supreme Court has set forth the following rubric for how statutory language should be reviewed:

The seminal duty of a court in construing a statute is to effectuate the intent of the legislature. A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning. Thus, we are “to ascertain the intention of the legislature for words used in enacting statutes rather than surmising what may have been intended but was not expressed.

Thus, if a statute is clear and unambiguous and expresses the legislature’s intent, the statute must be applied as written. And absent an ambiguity, there is no need to resort to the rules of statutory construction in interpreting it. Statutes, of course, must be read as a whole and in context with other parts of the law.[32]

In Revenue Cabinet v. O’Daniel,[33] the Supreme Court similarly noted, ‘“[t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source.”’[34] Furthermore, in Lichtenstein v. Barbanel,[35] the Supreme Court remarked, “[i]f the statutory language is ambiguous, we will look to other sources to ascertain the legislature’s meaning, including legislative history.”[36]

2. Is KRS 337.385(1) of The Kentucky Act Ambiguous?

KRS 337.385 now provides that an employee or employees may sue “for and in behalf of himself, herself, or themselves.”[37] On its face, this language permits multiple individuals to pursue their claims in one proceeding, but not in a representative capacity – an employee or employees may sue only “for and in behalf of himself, herself, or themselves.”[38] The pronouns “himself,” “herself,” and “themselves” are reflexive pronouns, which always refer to, and are identical with, the subject of the sentence or clause.The subject of the statutory text at issue is the “one (1) or more employees” who are maintaining an action in court.[39] The pronouns “himself,” “herself,” and “themselves” refer to the “one (1) or more employees” who are maintaining such an action. A grammatical reading of the passage is:

(i) any one employee may maintain an action for and in behalf of himself;

(ii) any one employee may maintain an action for and in behalf of herself; and

(iii) any two or more employees may maintain an action for and in behalf of themselves.

Of course, it is fair to wonder why the General Assembly chose this particular language. After all, the General Assembly could have simply said something akin to “class actions are not permitted under this statute.” The General Assembly’s choice of words makes sense, however, in light of the federal statute on which it was modeled.

C. A Comparison To Like Statutes

1. The FLSA’s Remedy Mechanism

Kentucky courts have recognized the similarities between the remedy mechanism of the Kentucky Act and that of the FLSA.[40] The Kentucky Act’s remedy mechanism is similar to that of the FLSA, but with one major distinction, as noted below:

(Kentucky Act):

“Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.”[41]

(FLSA):

“An action . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.”[42]

2. Kentucky’s Wage Discrimination Because Of Sex Statute

In addition to the FLSA inference, there is an infrequently utilized section in KRS Chapter 337 that addresses wage discrimination based on sex.[43] In principal part, the anti-discrimination provision provides, “[n]o employer shall discriminate between employees in the same establishment on the basis of sex, by paying wages to any employee in any occupation in this state at a rate less than the rate at which he or she pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility.”[44] The anti-discrimination provision is enforced by a subsequent provision providing, “[a]ction to recover the liability may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves and other employees similarly situated.”[45]

D. The Opposing View

Perhaps the most potent argument is that the language of the statute does not, in ordinary words, preclude class relief, e.g., “class actions may not be maintained under this section.” In Califano v. Yamasaki,[46] the U.S. Supreme Court considered whether a statute that provided, “[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action . . . .”[47] The court found the use of the ambiguous phrase “any individual” did not express the clear congressional intent to preclude class actions.[48]Another argument focused on the potential interplay between Kentucky Rule of Civil Procedure Rule (CR) 1 and 23. Rule 1 provides that the civil rules “govern procedure and practice in all actions of a civil nature . . . .”[49] In other words, there is a potential conflict between the judiciary’s adoption of civil rules permitting class actions and the legislature’s enactment of a statute that takes away the right to class actions. A number of other states have similar civil rules yet practically every state legislature, including Kentucky’s, has placed some form of a substantive restriction on the class action device.[50]Finally, the fact that a number of Kentucky courts, primarily Kentucky federal courts, have considered claims under the Act without taking issue with the ability to pursue a class action under the Act lends support, however small, to the position that the Act permits class actions.[51]

III. The Kentucky Court of Appeals Weighs in, Albeit in Dicta

In 2013, the Kentucky Court of Appeals had occasion to consider the argument that the Kentucky Act precludes class actions.[52] It did so in the context of litigation that had spanned fifteen years between Toyota Motor Manufacturing, Inc. (”TMMK”), represented by the authors of this piece,[53] and employees/former employees of its paint and bumper paint departments who claimed they were not compensated for time spent putting on and taking off a paint suit and walking to and from their work processes.[54] The Plaintiffs pursued their case as a class action, and millions of dollars in damages were potentially at issue given that the class could number over 1,000 members of TMMK’s paint and bumper paint departments.[55] This potential exposure only increased in 2007 when the Scott Circuit Court reopened the judicial case that had been final since 2003, in light of Parts Depot.[56]After a lengthy appellate process, the case returned to the Scott Circuit Court.[57] There, TMMK asserted the argument that the Kentucky Act does not provide for class actions, and, after the Scott Circuit Court denied its motion to dismiss on those grounds, re-asserted the argument in opposition to the Plaintiffs’ motion for class certification.[58] Once Plaintiffs’ motion was granted, TMMK was able to avail itself of a recent change in the civil rules that permitted litigants to make an interlocutory appeal of a grant or denial of class certification.[59]The Kentucky Court of Appeals primarily addressed the point that it agreed with TMMK that the Scott Circuit Court should not have reopened the case.[60] In dicta, though, the Court of Appeals stated:

However, were we to reach the merits of this argument, we would agree with TMMK that the text of KRS 337.385(1) provides a clear expression of intent that class actions are not permitted . . . The statute permits more than one person to bring a cause of action under KRS 337.385(1) in the same case, but they may not do so in a representative capacity. Further, the effect of the “for and in behalf of” language is to limit the individuals who may participate in an action under the Act to those who actually bring the action. Thus, even if the trial court had properly reopened the case under CR 60.02(f), KRS 337.385(1) does not permit class actions and the trial court improperly certified a class.[61]

The very next month, the Jefferson Circuit Court likewise found in favor of Humana Inc., also represented by Fisher & Phillips, who argued the same position regarding the statutory language.[62] That opinion, however, is not binding on any other Kentucky court and did not substantively address the arguments outlined above.

IV. The Kentucky Court of Appeals Was Correct, But a More Comprehensive Opinion is Needed

While the opinions of the Court of Appeals and the Jefferson Circuit Court reached the correct result, neither opinion thoroughly reviewed all of the arguments supporting the position that the Kentucky Act does not permit class actions. The most critical argument is, of course, the plain text. None of the readings of KRS 337.385(1) outlined above supports a conclusion that employees may sue for and in behalf of anyone else, that is, for and in behalf of anyone who has not also commenced an “action” to assert his or her own rights under the Act. While more than one person may bring a cause of action under the Kentucky Act, the language of KRS 337.385(1), on its face, bars them from doing so in a representative capacity. Given Kentucky law holding that the plain text controls absent ambiguity, this should resolve the issue.But given the support from extrinsic sources, it makes sense for a court to consider those sources as well. The Kentucky Act’s phrasing negating the class action device makes perfect sense when read in conjunction with the FLSA. Moreover, the Kentucky General Assembly adopted KRS 337.427, a section of the Kentucky Wage Discrimination Because of Sex statute, in 1966, eight years prior to its adoption of KRS 337.385.[63] Thus, it cannot be said the Kentucky General Assembly was unaware of the “for and in behalf of” language when it adopted KRS 337.385(1) in 1974.It is fair to wonder, however, whether the 1974 General Assembly somehow inadvertently omitted the “and other employees similarly situated” language included in the FLSA. Of course, Kentucky has long-recognized the “primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.”[64] In Fox v. Grayson,[65] the Kentucky Supreme Court noted, “[w]e cannot dismiss the notable omission of language . . . as a mere accidental oversight. It is well settled law that a court may not add language to the written law to achieve a desired result.”[66] Similarly, in Rue v. Ky. Ret. Sys.,[67] the Kentucky Court of Appeals stated, “[w]e are not free to add words to statutory enactments in order to enlarge their scope beyond that which can be gleaned from a reading of the words used by the legislature.”[68]The Kentucky Supreme Court has a history of adhering to the slight differences in language in related statutes – a point that could easily be highlighted in any opinion on the Kentucky Act. In Kentucky Department of Corrections v. McCullough,[69] the Kentucky Supreme Court considered two different provisions of the Kentucky Civil Rights Act. At issue was the availability of punitive damages, specified in one provision but not the other:

(Kentucky Civil Rights Act – Employment Discrimination):

In the employment discrimination context, permitting recovery for “actual damages sustained.”[70]

(Kentucky Civil Rights Act – Housing Discrimination):

In the housing discrimination context, permitting recovery for “punitive damages.”[71]

When faced with this obvious disparity in language, the Kentucky Supreme Court rejected the Court of Appeals’ “policy-oriented approach,” which allowed for recovery of punitive damages under the employment discrimination remedy provision of KRS 344.[72] Instead, the Court reversed and found, inter alia, that “in construing statutes it must be presumed that the Legislature intended something by what it attempted to do.”[73]A more recent case provides another compelling example of the power of precise statutory language. In Griffin v. Rice,[74] the issue was who would receive the deceased’s estate, his mother or his wife.[75] The answer turned on the Kentucky Supreme Court’s interpretation of KRS 392.090(2), which provided that a spouse who voluntarily leaves the other and “lives in adultery” forfeits his or her right to an interest in the other’s estate of property.[76] The proof at trial showed that the deceased’s wife engaged in one act of sexual intercourse with another man, which happened to be the night prior to the deceased’s death.[77]In concluding that the phrase “lives in adultery” requires proof of more than one sexual act, the Court noted Kentucky’s former fault-based divorce statute contained different phrasing depending upon the party seeking the divorce.[78] According to the prior statute – which while concededly dated and sexist is nevertheless instructive for this limited purpose – a husband or a wife could obtain a divorce on the grounds that the other was “living in adultery with another man or woman,” but, according to another provision, a husband could also obtain a divorce on the grounds of “adultery by the wife.”[79] In finding for the wife, Griffin focused on the difference in language and stated:

Had the General Assembly considered one instance of adultery sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property, it would have made this clear by employing different wording in the statute, such as “commits adultery” or “engages in adultery.” Another statute, in effect at the same time as the statute at issue, indicates the General Assembly was aware of the import of its phrasing and knew exactly how to distinguish between one adulterous act and multiple acts of adultery. . . . The language chosen by the General Assembly in the contemporaneous divorce statute makes clear the legislature was aware of the significance of its phrasing and was able, had it meant to do so, to employ language that indicated one act of adultery would be sufficient to bar a husband or wife from his or her interest in the other spouse’s estate and property.[80]

Taken together, McCullough and Griffin stand for the proposition that different word choices in closely related statutes must be given effect. The General Assembly clearly understands the import of even slight word changes, and the Supreme Court has read those words literally, regardless of the outcome. In Griffin, that approach arguably had real and negative consequences – rewarding the unfaithful wife at the expense of the deceased’s mother.By contrast, there are no such negative consequences to the General Assembly’s choice to omit the critical and dispositive phrase “and other employees similarly situated.” Any individual who wants to pursue a claim under the Kentucky Act may do so, regardless of whether class actions are permitted. That has been, and will always be, the case. Employees simply will be unable to do so in any type of representative action.In other words, the only individuals truly harmed by this argument are the plaintiffs’ bar. Ultimately, though, the plaintiffs’ bar could have the opportunity to alter this outcome, despite the plain language of the Kentucky Act.

V. The Court of Appeals Provided a Roadmap for How This Issue Should Be Resolved in an Earlier Case

In 2005, the Court of Appeals in City of Somerset v. Bell[81] correctly read a statute as providing for class actions, and later that same year, the General Assembly, disagreeing with that conclusion, amended the statute. In City of Somerset, the Court of Appeals cited a line of precedent spanning more than 70 years which interpreted the statute at issue in that case, KRS 134.590(6), and its predecessor statute, as not allowing for class relief because it provided “[n]o refund shall be made unless application is made in each case within two (2) years from the date payment was made.”[82]City of Somerset noted that line of precedent was called into question due to a 1996 statutory amendment to KRS 134.590(6) which deleted the words “in each case.”[83] This amendment allowed the plaintiff taxpayers to argue the statute now permitted class actions.[84] The Court agreed with the taxpayers, citing Kentucky law providing, “[w]here a statute is amended or re-enacted in different language, it will not be presumed that the difference between the two statutes was due to oversight or inadvertence on the part of the Legislature. On the contrary, it will be presumed that the language was intentionally changed for the purpose of effecting a change in the law itself.”[85] Given this guidance, the court concluded:

Considering the historical significance of that phrase [in each case], beginning in the Swiss Oil case, we must conclude that the intent of the legislature was to amend that portion of the statute limiting refunds for ad valorem taxes to individual claims. Even if the change was unintentional, its effect was to alter key language of a statute, which, for some seventy years before the amendment, had been interpreted by the courts to limit tax refunds to individual claims.[86]

The General Assembly became aware of this result, and, later that very same year (2005), enacted new language to make clear its intent that class actions are not permissible.[87] The statute now reads, “[n]o refund shall be made unless each taxpayer individually applies . . .”[88]City of Somerset provides a model for how statutes should be reviewed. The absence of the phrase “in each case” was critical and dispositive in that case. It would have been more than a little odd for the Court to deny the availability of the class action mechanism to the taxpayers in 2005, given how the statute read at that time. But the General Assembly did not want taxpayers to be able to proceed as a class, so it took away that ability through an amendment to the statute’s text. If the General Assembly believes class actions are appropriate under the Kentucky Act, it will presumably do likewise here, once a Kentucky court definitively decides this issue. Absent that, it would be inappropriate for the judiciary to read into the Kentucky Act what is not there – either by consideration of the plain language or from the context of similar statutes.

[1] Jeff Savarise and Tim Weatherholt are partners in the Louisville office of Fisher & Phillips LLP, a national labor and employment law firm representing employers. Jeff is a 1982 graduate of John Carroll University and a 1985 graduate of the University of Akron School of Law. Tim is a 2001 graduate of Transylvania University and a 2004 graduate of Vanderbilt Law School.[2] Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977); 29 U.S.C. § 216(b) (2008).[3] See, e.g., Andrew C. Brunsden, Hybrid Class Actions, Dual Certification, and Wage Law Enforcement in the Federal Courts, 29 Berkeley J. Emp. & Lab. L. 269, 292–94 (2008).[4] See, e.g., Alaska Stat. § 23.10.110(b) (2012) (“An action to recover from the employer the wages and damages for which the employer is liable may be maintained in a competent court by an employee personally and for other employees similarly situated, or an employee may individually designate in writing an agent or representative to maintain an action for the employee.”); Haw. Rev. Stat. § 387-12(c) (2008) (“Action to recover such liability may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf of oneself or themselves and other employees similarly situated, or the employee or employees may designate an agent or representative to maintain action for and in behalf of all employees similarly situated.”); N.H. Rev. Stat. Ann. 275:53(1) (2008) (“Action by an employee to recover unpaid wages and/or liquidated damages may be maintained in any court of competent jurisdiction by any one or more employees for and in behalf or himself, or themselves, or such employee or employees may designate an agent or representative to maintain such action.”).[5] See, e.g., Minn. Stat. § 177.27(8) (2006) (“An employee may bring a civil action seeking redress . . . .”).[6] See, e.g., Braun v. Wal-Mart, Inc., No. 19-CO-01-9790, 2003 WL 22990114, at *3 (D. Minn. 2003) (certifying class in connection with working off the clock and through break and meal periods on breach of contract and other theories).[7] The Kentucky Act provides in pertinent part: “Such action may be maintained in any court of competent jurisdiction by any one (1) or more employees for and in behalf of himself, herself, or themselves.” Ky. Rev. Stat. Ann. § 337.385(2) (West Supp. 2014).[8] See. e.g., Whitlock v. FSL Mgt., LLC, No. 3:10CV-00562-JHM, 2012 WL 3274973, at *14 (W.D. Ky. 2012), Hughes, v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *7 (Ky. Ct. App. 2013); England v. Adv. Stores Co., Inc., 263 F.R.D. 423, 458 (W.D. Ky. 2009); Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. 2010).[9] Ky. Rev. Stat. Ann. § 413.120(2) (2006).[10] 29 U.S.C. § 255 (2011).[11] Ky. Rev. Stat. Ann. § 337.385 (1974) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[12] Ky. Rev. Stat. Ann. § 337.385 (1978) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[13] Ky. Rev. Stat. Ann. § 337.385 (2010) (current version at Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014)).[14] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).[15] Orms v. City of Louisville, 686 S.W.2d 464 (Ky. Ct. App. 1984).[16] Id. at 465.[17] Id.[18 ] Id.[19] City of Louisville v. Gnagie, 716 S.W.2d 236 (Ky. 1986).[20] Id. at 237.[21] Id. at 236–37.[22] De minimis is a Latin expression meaning about minimal things. It is commonly used by courts as a basis to not count certain small increments of time and the beginning and end of a workday that may otherwise be compensable.[23] Gnagie, 716 S.W.2d at 237.[24] Id.[25 ]Early v. Campbell Cnty. Fiscal Court, 690 S.W.2d 398 (Ky. Ct. App. 1985).[26] Noel v. Season-Sash, Inc., 722 S.W.2d 901 (Ky. Ct. App. 1986).[27] See id. at 903 (To reiterate, the Commissioner of Labor has original jurisdiction, as held in the Early case, only in those wage and hour disputes in which the duty to provide the benefits sought by the claimant derives solely from the statute . . . .”).[28] Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 356 (Ky. 2005).[29] See id. at 361–62.[30] See, e.g., Barker v. Family Dollar, Inc., No. 3:10-CV-00170-H, 2012 WL 5305335, at *1 (W.D. Ky. Oct. 25, 2012); Whitlock v. FSL Mgmt., LLC, No. 3:10-CV-00562-JHM, 2012 WL 3274973, at *1 (W.D. Ky. Aug. 10, 2012); McCauley v. Family Dollar, Inc., No. 3:10-CV-363-S, 2010 WL 3221880, at *1 (W.D. Ky. Aug. 12, 2010); England v. Advance Stores Co., 263 F.R.D. 423 (W.D. Ky. 2009); Hughes v. UPS Supply Chain Solutions, Inc., Nos. 2012-CA-001353-ME, 2012-CA-001757-ME, 2013 WL 4779746, at *1 (Ky. Ct. App. Sept. 6, 2013).[31] See infra notes 52–63 and accompanying text.[32 ]Hall v. Hospitality Res., 276 S.W.3d 775, 784 (Ky. 2008) (citations omitted).[33] Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005).[34] Id. at 819 (citing Ronald Benton Brown & Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent § 4.2, at 38 (2002)).[35] Lichtenstein v. Barbanel, 322 S.W.3d 27 (Ky. 2010).[36] Id. at 34–35 (citing MPM Financial Group Inc. v. Morton, 289 S.W.3d 193, 198 (Ky. 2009)).[37] Ky. Rev. Stat. Ann. § 337.385 (West Supp. 2014).[38] Id.[39] Id.[40] See Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 358 (Ky. 2005).[41] Ky. Rev. Stat. Ann. § 337.385 (West 2014).[42] 29 U.S.C. § 216 (2012) (emphasis added).[43] Kentucky’s Wage Discrimination Because of Sex provisions are located at Ky. Rev. Stat. Ann §§ 337.420—337.433 (West 2014).[44] Ky. Rev. Stat. Ann §§ 337.423(1) (West 2014).[45] Ky. Rev. Stat. Ann §§ 337.427(2) (West 2014) (emphasis added).[46] Califano v. Yamasaki, 442 U.S. 682 (1979).[47] Id. at 698 n. 12.[48] Id. at 700.[49] Ky. R. Civ. P. 1(2).[50] (Class Action not permitted—31 states) See, e.g., Ala. Code § 8-19-10(f) (2014); Ariz. Rev. Stat. Ann. § 33-712(C) (2014); Ark. Code Ann. § 4-87-103 (West 2014); Conn. Gen. Stat. § 36a-740 (West 2014); Fla. Stat. § 624.155(6) (West 2014); Ga. Code. Ann. § 7-4-21 (West 2014); Haw. Rev. Stat. § 477E-4(b) (West 2014); Idaho Code Ann. § 28-45-201(1) and (3) (West 2014); 740 Ill. Comp. Stat. 10/7(2) (West 2014); Iowa Code § 537.5203(1) (West 2014); Kan. Stat. Ann. § 50-634(b) (West 2014); Ky. Rev. Stat. 134.590(6) (West 2014); La. Rev. Stat. Ann. § 51:1409(A) (2014); Mich. Comp. Laws § 445.1611(1) (2014); Minn. Stat. § 325M.07 (2014); Miss. Code Ann. § 75-24-15(4) (West 2014); Mont. Code Ann. § 30-14-133(1) (West 2013); Neb. Rev. Stat. § 77-2793(1) (2014); N.H. Rev. Stat. Ann. § 359-H:4 (2014); N.J. Stat. Ann. § 46:10B-29(a)(2) (West 2014); N.C. Gen. Stat. § 75C-5 (2014); Okla. Stat. tit. 36 § 6595; Or. Rev. Stat. § 238.362(4)(a) (2014); 73 Pa. Cons. Stat. § 2208(d) (2014); R.I. Gen Laws § 15-7.2-5(b) (2014); S.C. Code Ann. § 40-39-160(1) (2013); S.D. Codified Laws § 10-47B-131.2 (2014); Tenn. Code Ann. § 56-47-108(a)(2) (West 2014); Tex. Bus. & Com. Code Ann. § 605.005 (West 2013); Utah Code Ann. § 13-37-203(3) (West 2014); Wash. Rev. Code § 63.60.070(3) (2014). (Class Action Limited – 15 states) See, e.g., Cal. Civ. Code § 1787.3(b) (West 2014); Col. Rev. Stat. § 6-1-113(2) (2014); Ind. Code 9-32-12-4(c) (2014); Me. Rev. Stat. tit. 32, § 11054(c)(2) (2014); Md. Code Ann. § 12-707(c) (West 2014); Mass. Gen. Laws ch. 140D, § 32(a)(2)(b) (2014); Mo. Rev. Stat. § 71.675(2) (2014); Nev. Rev. Stat. § 38.255(3)(b) (2014); N.M. Stat. Ann. § 58-16-15(B) (West 2014); N.Y. Gen. Oblig. Law § 5-702(a)(2) (McKinney 2014); Ohio Rev. Code Ann. § 1351.08(A)(2)(b)(ii) (West 2014); Va. Code Ann. § 8.01-316(A)(2) (West 2014); W. Va. Code § 6C-2-3(e)(2) (2014); Wis. Stat. § 426.110(3) (2013); Wyo. Stat. Ann. § 40-19-119(a)(iii) (2014).[51] See Ky. Rev. Stat. Ann. § 413.120(2) (West 2014).[52] Toyota Motor Mfg, Kentucky, Inc. v. Kelley, et al., No. 2012-CA-001508-ME, 2013 WL 6046079 (Ky. Ct. App. Nov. 15, 2013).[53] As co-author Jeff Savarise tells the story, he locked himself in his office, determined to develop an argument that would allow TMMK to prevail in this case. When he emerged, he posited the heretofore novel theory that that Kentucky Act does not permit class actions. Just as in Orms and Gnagie, there were other arguments to present on appeal, but this novel argument provided an extra layer of security in the correctness of our position.[54] TMMK, 2013 WL 6046079, at *1.[55] Id.[56] Id. at *2.[57] Id. at *2.[58] Id. at *3–4.[59] Ky. R. Civ. P. 23.06, which became effective on January 1, 2011, provides, “[a]n order granting or denying class action certification is appealable within 10 days after the order is entered. . .”[60] TMMK, 2013 WL 6046079, at *8–9.[61] Id. at *9.[62] See Brown v. Humana Inc. and Humana Ins. Co., No. 13-CI-002422 (Ky. Cir. Ct. Dec. 5, 2013).[63] Ky. Rev. Stat. Ann. § 337.427 (West 1966).[64] Smith v. Wedding, 303 S.W.2d 322, 323 (Ky. 1957) (citation omitted).[65] Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010).[66] Id. at 8.[67] Rue v. Ky. Ret. Sys., 32 S.W.3d 87 (Ky. Ct. App. 2000).[68] Id. at 89.[69] Kentucky Department of Corrections v. McCullough, 123 S.W.3d 130 (Ky. 2003).[70] Ky. Rev. Stat. Ann. § 344.450 (West 1974).[71] Ky. Rev. Stat. Ann. § 344.660 (West 1991); Ky. Rev. Stat. Ann. § 344.665 (West 1992).[72] McCullough, 123 S.W.3d at 139.[73] Id. at 140 (emphasis added).[74] Griffin v. Rice, 381 S.W.3d 198 (Ky. 2012).[75] Id.at 200.[76] Id. at 201.[77] Id. at 199.[78] Id. at 202–03.[79] Id. at 202.[80] Id. at 202–03.[81] City of Somerset v. Bell, 156 S.W.3d 321 (Ky. Ct. App. 2005).[82] Id. at 326 (citing Swiss Oil Corp. v. Shanks, 270 S.W. 478 (Ky. 1925); Bd. of Educ. of Fayette County v. Taulbee, 706 S.W.2d 827 (Ky. 1986); Bischoff v. City of Newport, 733 S.W.2d 762 (Ky. Ct. App. 1987)) (emphasis in original).[83] Id. at 326.[84] Id. [85] Id. at 327 (citing Eversole v. Eversole, 185 S.W. 487, 489 (1916)).[86] Id. at 326–27.[87] Ky. Rev. Stat. Ann. § 134.590(6) (West 1992).[88] Id. (Emphasis added).

Getting Jurors to Awesome

Article | 102 KY. L. J. ONLINE 6 | May 30, 2014

Cortney E. LollarFN1

A 2011 American Bar Association report on the death penalty in Kentucky revealed that a shocking two-thirds of the 78 peopleFN2 sentenced to death in Kentucky since reinstatement of the death penalty in 1976 have had their sentences overturned on appeal. Kentucky’s reversal rate is more than twice the national average, with a 31% reversal rate in capital cases and almost four times the 17% national reversal rate in all other case types.FN3 With a sentence as irreversible as death, troubling does not begin to describe the depth of concern many experience when viewing such a startling statistic. A closer look at the cases behind this extreme reversal rate reveals some surprising patterns. Two of the more consistent factors leading to the reversal of death sentences in Kentucky are prosecutorial comments, which lead the jury to feel a diminished sense of responsibility in their ultimate sentencing decision, and jury instruction error. This essay focuses on the former, the minimization of the jury’s sense of responsibility, a factor in 12% of reversals.FN4 However, jury instructions are intimately intertwined with how the jury navigates and perceives their role. Accordingly, this essay will also discuss how aggravating and mitigating jury instructions play a role in minimizing the jury’s function, as well. Furthermore, this essay explores whether the concerns related to the minimization of a juror’s role are confirmed by empirical evidence, and concludes by suggesting ways to help jurors acknowledge the full weight of their responsibility in the event the death penalty continues to be a punishment in Kentucky.

The Jury’s Discomfort with Its Role in Capital Sentencing

The jury’s role in sentencing is rooted in Supreme Court jurisprudence that re-establishes the constitutionality of the death penalty in the mid-1970s. Under the scheme permitted by the Supreme Court in Gregg v. Georgia, a case which led many states to reinstate the death penalty, the Court approved of a bifurcated trial where juries are given “guided discretion” in their decision at the penalty phase of a capital trial.FN5 Specifically, the framework authorized by the Court instructed the jury to look at certain statutory and non-statutory aggravating and mitigating factors in determining the appropriate punishment.FN6 The Court viewed the jury’s role as central to the decision, calling the jury a “significant and reliable objective index of contemporary values because it is so directly involved [in the proceedings].”FN7 Yet many jurors, both then and now, remain quite uncomfortable with the role delineated for them in Gregg. As one scholar has suggested, “many death penalty jurors who are confronted with the anguishing moral dilemma of a death sentencing decision seek to avoid the perception that they bear personal moral responsibility for making that decision.”FN8 In large part, this avoidance is likely because “[c]apital trials are unique in American jurisprudence and, indeed, in human experience. Under no other circumstance does a group of ordinary citizens calmly and rationally contemplate taking the life of another, all the while acting under color of law.”FN9 Generally, individuals seek to avoid being in a position to make the decision as to whether another person lives or dies. Yet, in this context, jurors are asked to put their normal aversion aside and decide the ultimate fate of another. In order to eliminate some of the uneasiness they may feel, jurors may try to distance themselves from the decision. It is therefore not surprising that attorneys trying to persuade a juror to sentence someone to death might identify and utilize this discomfort. After Gregg, prosecutors around the country, including those in Kentucky, often attempted to alleviate juror distress by convincing them that their decision was not the final one, thereby allowing them to be more comfortable imposing a death sentence. As indicated by the number of reversals in Kentucky on this ground, courts, including the Supreme Court, did not embrace this approach. In a 1985 case, Caldwell v. Mississippi, the Supreme Court found it “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who [had] been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.”FN10 In Caldwell, Bobby Caldwell was sentenced to death in Mississippi for shooting and killing the owner of a small grocery store during the course of robbing the store.FN11 During the initial sentencing proceeding, Caldwell’s attorney asked the jury to show mercy, saying: [E]very life is precious and as long as there’s life in the soul of a person, there is hope . . . . [D]eath is final. So I implore you to think deeply about this matter . . . . I’m sure [the prosecutor is] going to say to you that Bobby Caldwell is not a merciful person, but I say unto you he is a human being. That he has a life that rests in your hands. You can give him life or you can give him death. It’s going to be your decision . . . . You are the judges and you will have to decide his fate. It is an awesome responsibility, I know – an awesome responsibility.FN12 The prosecutor responded to defense counsel’s notion by minimizing the jury’s role in sentencing, stating: “[T]hey would have you believe that you’re going to kill this man and they know—they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable . . . . [T]he decision you render is automatically reviewable by the Supreme Court. Automatically . . .”FN13 In rejecting the government’s argument, the Supreme Court confirmed its belief that capital juries would “view their task as the serious one of determining whether a specific human being should die at the hands of the State.”FN14 In fact, Caldwell’s counsel was echoing the precise words of Justice Harlan, who, in a previous case, identified the jury’s “awesome responsibility” in capital cases.FN15 In Caldwell, Justice Marshall embraced the idea that a sense of moral responsibility not only would affect, but also should affect a jury’s decision in deciding what sentence to impose.FN16 The Court envisioned this model of jury service as essential to the death penalty’s continued constitutionality under the Eighth Amendment.FN17 According to the Court, the jury should contemplate the individuality of a defendant and whether this particular individual should be given or denied mercy in making its sentencing decision.FN18 In fact, the Court premised its acceptance of capital punishment on jurors not evading the mantle of the responsibility vested in them.FN19 Although the Caldwell Court reiterated its confidence in jurors taking their role as life or death decision-maker quite seriously, it simultaneously acknowledged the real discomfort many capital jurors feel about making that ultimate decision. According to the Court, capital juries are “made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. They are confronted with evidence and argument on the issue of whether another should die, and they are asked to decide that issue on behalf of the community.”FN20 As a result, the Court continued, “[I]n the capital sentencing context there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences,”FN21 especially when jurors are encouraged to view their role in determining someone’s fate as something less momentous than it actually is. Justice Marshall’s opinion recognizes how effortlessly jurors could abandon the weighty sense of moral responsibility, and rejects any attempts to keep the jury from being aware of the true consequences of its decision during the penalty process.

A Closer Look at the Assumptions Underlying Caldwell

The Caldwell Court’s endorsement of jurors as the moral compass for the community and admonition of the government for trying to minimize juror’s acceptance of this role, builds on a central, unexamined premise. The Court assumes a reduced sense of responsibility will affect a jury’s decision. More specifically, it presumes that minimizing a jury’s role will reduce the sense of responsibility the jury feels.FN22 If jurors are torn about imposing a death sentence, the Court reasons, the knowledge of judicial or appellate review might allow them to more readily invoke the death sentence. Jurors assume that a court will be the ultimate arbiter, with the result being a less reliable decision.FN23 Conversely, a sentencer who believes that she alone is responsible for the defendant’s fate will take her moral obligations more seriously, thus resulting in a more reliable decision. At the time Caldwell was decided, there was little evidence, empirical or otherwise, to support or refute the Court’s claim. As a result, notwithstanding the Court’s holding, questions remained as to whether a reduced sense of responsibility actually affected a jury’s decision. Additional questions remained as to whether comments suggesting that courts would review and revise a jury’s finding would reduce how a juror viewed their responsibility in imposing death. In light of the high reversal rate in capital cases in Kentucky on this minimization ground, both before and after Caldwell, these questions seem important to answer. The next section looks at both the empirical evidence and the theoretical underpinnings supporting the Court’s view.

Empirical Evidence on Minimization of the Jury’s Role

Since Caldwell, several empirical studies have examined the question of whether a reduced sense of responsibility affects a jury’s decision, separate from any comments by prosecutors or judges attempting to minimize the jury’s role. The results support Caldwell’s holding and the legitimacy of Kentucky’s reversals on this basis. Many former capital jurors who were interviewed indicated that they see the defendant, the law, or the court as primarily responsible for the outcome of a capital sentencingFN24 rather than acknowledging their own role in the decision.FN25 Numerous studies have shown that capital jurors believe the person most responsible for the punishment is the defendant himself, viewing it as the inevitable result of the defendant’s crime.FN26 These same jurors also tend to believe the law commands a particular sentence, making the decision one that is out of their hands.FN27 In fact, eight out of ten former capital jurors interviewed feel the defendant or the law is most responsible for a defendant’s punishment.FN28 Although these jurors consider “the law” to be what statutes command, studies also suggest that a majority of jurors believe the defendant’s fate is actually up to the judge and appeals court.FN29 Even without prosecutors giving their imprimatur to this view, jurors tend to take judicial review and ultimate decision-making as a given.FN30 Troublingly, only a small minority of capital jurors believes they, either individually or collectively as a jury, bear the responsibility for a defendant’s punishment.FN31 As a result, one study revealed that jurors in 75% of the capital trials reviewed found no need to deliberate in the penalty phase, indicating that the law took responsibility away from them.FN32[32] Although, technically speaking, the jury is solely tasked with recommending a sentence to the judge, the law on this issue is not quite so simple. It is true that under Kentucky law, jurors recommend a sentence to the judge,FN33 and indeed, state law requires Kentucky Supreme Court review of a capital sentence.FN34 In the strictest sense, then, neither prosecutors nor judges are misstating the law by telling jurors that their role is to “recommend” a sentence to a judge, who ultimately makes the final sentencing decision. Subsequent federal appellate decisions have confirmed that such a statement, in and of itself, is not error.FN35 Yet, that is not the whole story. Kentucky allows a judge to impose a death sentence only if the jury votes for death. The jury alone determines which aggravating circumstances authorize a death sentence.FN36 Of the thirty-two states with the death penalty, only three permit judges to override life verdicts issued by jury recommendation, and Kentucky is not one of them.FN37 Although it is difficult to get the numbers,FN38 evidence suggests that judges rarely override a death sentence in favor of a life sentence.FN39 In the instances when they do, “[b]y far the most common reason for judicial overrides of death recommendations is the defendant’s mental illness or mental retardation.”FN40 Additionally, judges seem to override jury death verdicts when there is a likelihood that the decision will get overturned on appeal.FN41 Thus, juries really do play the most critical role in determining whether a defendant receives a sentence of death, as it is almost always their recommendation that makes the ultimate call. Caldwell is still good law, and several Kentucky Supreme Court opinions have continued to give teeth to its holding, despite the statute’s use of the word “recommend.”FN42 In Bussell v. Commonwealth, for example, the Court remarked, “[t]his Court has repeatedly denounced the use of the term ‘recommend,’ despite the fact that it appears in the sentencing statute.”FN43 Similarly, in an unreported 2007 case, the Court admonished a prosecutor for telling the jury, “I’m the one who may have to recommend that he die. I’m the one who is responsible; well, you are not responsible.”FN44 Although the Court reversed the sentence on other grounds, it took pains to reiterate “any actions by the Commonwealth which would tend to lessen in the minds of the jury their awesome responsibility” must be discouraged and should not be repeated on retrial.FN45 The law in Kentucky continues to be what the Kentucky Supreme Court articulated in its 1988 Grooms v. Commonwealth opinion:

[T]he instructions on the penalty phase should require the jury to fix the punishment. As a matter of law, the punishment fixed by the jury shall be considered to be a recommendation by the jury to the trial judge, who will then have the ultimate responsibility of fixing the penalty as prescribed by statute.FN46

The standard jury instruction reflects this understanding, explaining to the jury: “[y]ou [have now received] additional evidence from which you shall determine whether there are mitigating or aggravating facts and circumstances bearing upon the question of punishment, following which you shall fix a sentence for the Defendant.”FN47 Thus, while the jury is solely tasked with recommending a sentence to the judge, because of the critical role jurors play in determining that sentence, jurors are to be told they are fixing the punishment. There are some scenarios where concern about capital jurors trying to avoid their responsibility for a defendant’s ultimate sentence arises more regularly. When jurors believe the defendant killed under the influence of extreme mental or emotional disturbance, they tend to assign a greater role to the judge in determining the penalty.FN48 Jurors also are less willing to accept responsibility when female defendants are sentenced than males.FN49 Jurors who are active in politics also tend to shift responsibility to the judge, where as those for whom religion influenced their sentencing decision tended to accept a greater share of responsibility.FN50 By way of contrast, there are other scenarios in which former capital jurors are more willing to be held accountable for their role in a defendant’s sentence. “Jurors report a greater sense of responsibility when the vicious or brutal nature of the killing played a role in their decision-making.”FN51 Similarly, “jurors accepted increased responsibility if they believed the defendant had planned or intended to kill the victim, even if [the defendant] was not the [person to actually commit the act].”FN52 At least one study has shown that a correlation exists between rejection of responsibility at capital sentencing and a decision to sentence a defendant to death.FN53 Believing the decision would ultimately be the court’s made it easier for jurors to impose the death penalty.FN54 In other words, jurors who assign sentencing responsibility elsewhere are somewhat more likely to impose death, just as the Caldwell Court presumed.

Jurors Seek to Minimize Their Role

Separate from jurors’ beliefs that the defendant, the law, or the court are the ultimate arbiter of a capital defendant’s fate, many jurors also seek other methods of downplaying their own significance. Numerous studies have shown that capital jurors distance themselves from responsibility from their sentencing decisions.FN55 Consistent with the Caldwell Court’s fears, capital jurors often “focus solely on the portion of the judge’s sentencing instructions that tells them they are only making a recommendation in order to absolve themselves of responsibility.”FN56 Again, such a result is not surprising. As one commentator noted, “jurors are predisposed to use almost any available information to downplay their responsibility for the death sentencing decision.”FN57

Common Juror Misinformation and Misunderstandings

Many jurors rely on common lore and misinformation learned outside the courtroom in making their decisions in a capital case. One common misperception is that if a jury does not vote for death, a dangerous defendant will be walking the streets in a short period of time. The possibility of parole in a case where the jury imposes death weighed heavily on jurors, and often was a major consideration in their decision to impose the death penalty.FN58 In a recent survey of former Kentucky capital jurors by Professor Marla Sandys, jurors erroneously believed that if they did not impose the death penalty, convicted defendants would be back on the street in ten years.FN59 A death sentence becomes insurance against the possibility of a return to society.FN60 Thus, these same jurors appear to assume that at least if they impose death, the offender will not be back in the community any time soon, even if the execution is not carried out. Jurors also have significant doubts that most death sentences will be carried out.FN61 As a result, jurors vote for death to “send a message,” in the words of the Caldwell Court,FN62 as to how serious and heinous they view the defendant’s crime. Confusing and unclear jury instructions also play a significant role in jurors’ capital decisions. Part of the expectation for jurors, as articulated in Caldwell, is that they will evaluate mitigating evidence that might justify exercising mercy as part of their moral responsibility in death penalty cases. But, it is not uncommon for courts to improperly instruct jurors on what is required for aggravation and mitigation or to give instructions that jurors find confusing.FN63 Because the instructions are not clear with respect to what is expected of jurors at the penalty phase of a capital trial, there is the very real possibility that jurors are imposing death because they do not understand how aggravation and mitigation actually work. Further, given their tendency to assume courts have the final word, they assume a court will review their decision and “fix it” if they make an error. Juror confusion over mitigation, unfortunately, is not unusual, both generally and in Kentucky. More than 79% of former Kentucky capital jurors did not understand that mitigation evidence does not have to be proven beyond a reasonable doubt or found by a unanimous jury, and an additional 15% did not know what the standard for mitigation was.FN64 At least two death sentences in Kentucky were reversed because of a failure to properly instruct the jury that mitigating factors do not have to be found unanimously by the jury.FN65 These numbers are consistent with national studies showing that, where jurors recognized the existence of mitigating factors, they did not know “what the law allows, or requires, them to do with such evidence.”FN66 Capital jurors in Kentucky also misunderstand aggravation. More than 15% of interviewed Kentucky capital jurors did not understand that aggravating circumstances have to be found beyond a reasonable doubt.FN67 Likewise, at least one jury was not told that all jurors have to agree on which aggravating factor counsels in favor of death.FN68 In interviews conducted in several states, a substantial number of capital jurors reported that the wording of judicial instructions misled them into believing that they must sentence the defendant to death once they found the presence of a statutory aggravating circumstance.FN69 In Kentucky, a recent study found that more than 40% of former capital jurors believed the law required them to impose the death penalty if evidence proved that the defendant’s conduct was heinous, vile, or depraved, or if they believed the defendant would be dangerous in the future.FN70 In other words, those jurors believe that the presence of such characteristics is sufficient in and of itself to require imposition of the death penalty.FN71 Aggravating and mitigating factors were nowhere in their decision-making process. Proof of a particularly gruesome act, in these jurors’ minds, meant the death penalty must be imposed. Part of the problem is poorly worded and confusing jury instructions. Analyzing Kentucky’s jury instructions for readability, Professor Sandys found that most of the jury instructions relevant to death sentencing require more than a college education to understand. Such a finding is striking in a state where approximately 20% of the population has a college degree.FN72 Similarly, Sandys found that ease of reading was revealingly low, usually ranging between 30 and 40, but going as low as 15 on a scale of 1-100, with 60-70 being the ideal.FN73 Yet, the Supreme Court has upheld similar instructions on two occasions. In a 1998 case reminiscent of Kentucky’s cases addressing the issue of mitigation, the state of Virginia had an instruction indicating that aggravating factors must be proven beyond a reasonable doubt before death could be imposed.FN74 But the instruction was silent on the subject of mitigating factors, and no other mitigation instruction was provided. The Supreme Court found that Virginia had no affirmative obligation to instruct on mitigation and that the mere absence of such an instruction was not error, or a denial of the authority to consider mitigating evidence.FN75 Even two years later when another Virginia jury sent a note to the trial judge expressing confusion over this instruction by inquiring whether a finding of guilt on one count made it their “duty as a jury to issue the death penalty,” the Court found the Constitution required “nothing more” than the judge repeat the instruction to the jury.FN76 Prosecutorial comments that draw on instructions telling the jury their sentencing decision is “only a recommendation” likely do play a role in helping jurors minimize their responsibility for their decision to impose death. In a study of Indiana jurors who were instructed by the judge that their verdict was “only a recommendation,” most jurors specifically remembered that portion of the judge’s instruction.FN77 In fact one juror took it so far as to deny having played any role in the defendant’s sentencing once the trial was over.FN78 The reality is that she recommended a death sentence, and the defendant received a death sentence from the trial judge.FN79 Other jurors used the idea that the jury’s sentence was just a recommendation to convince holdout jurors to make a decision.FN80 When jurors are confused about their basic role, it is easy for them to fall back on the presumption that “the law” requires whatever sentence they impose, and if they are wrong, a court will step in because their decision is only a suggestion that courts do not have to endorse. The presence of unclear and/or confusing jury instructions only exacerbates the problem.

The Difficulty in Humanizing Capital Defendants at a Bifurcated Hearing

Jurors struggle with aggravation and mitigation, causing them to further abdicate their role as decision-makers in capital trials. As one recent commentator noted, [D]ehumanization during the fact-finding phase within a capital trial is predominantly established through procedural instrumentalities that unleash negative emotions through expressions of fear and outrage. Often it acts as a bulwark against positive emotions of empathy and compassion that the defense attempts to introduce in the later phase of the trial to humanize the defendant. Thus, process instrumentalities of the death penalty may permanently disable the humanization process.FN81 During the trial proceedings, “the prosecutor must portray in a vivid and compelling way, the circumstances and nature of the killing.”FN82 A prosecutor who does her job well portrays the pain and violence of the event in a way that brings it emotionally home to jurors, and jurors have an obligation to view the graphic representations of such pain and violence or else they are abdicating their role as jurors.FN83 As such, the government starts creating moral outrage around a “story of monstrosity” before the trial so that by the time of sentencing, that individual is completely “devoid of personhood and stripped of humanity.”FN84 Against this backdrop, mitigation evidence can barely begin to enter into a juror’s consciousness.FN85 Empirical evidence backs up the social science. In a study of capital juries from Kentucky, a substantial proportion (about 66%) of jurors decided the sentence during the guilt phase, even before hearing evidence regarding aggravating and mitigating factors.FN86 Of those who had reached a sentencing preference prior to the penalty phase of the trial, 70% were “absolutely convinced” of their penalty preference before hearing any evidence as to the appropriate sentence, and an additional 25% were “pretty sure.”FN87 Substantially more of those jurors who had reached a decision on sentencing prior to the penalty phase were inclined to believe death was the appropriate penalty rather than life.FN88 Those jurors who ultimately changed their vote from death to life primarily did so out of a desire to avoid a retrial,FN89 and those who went from life to death expressed reluctance based on personal beliefs.FN90 Mitigating factors were not generally considered in either instance.FN91  As Professor Sandys, who has conducted numerous studies of Kentucky capital juries remarked upon reviewing this evidence, “If this is true, then the guilt phase of the trial tilts jurors’ penalty preferences toward death.”FN92 Such a result should not be surprising. The manner in which bifurcated capital trials operate makes the jury’s ability to consider mitigating evidence difficult, even if jurors are abundantly clear what the law requires. Due to the post-Gregg manifestation of the death penalty, most courts have adopted a scheme where the jury first considers the issue of guilt, and then, in a separate proceeding, the same jury considers the issue of punishment. Inevitably, for the jury to even be considering death at the penalty phase, the jury already has found an aggravating circumstance, as most aggravating circumstances mirror those the jury considers in determining whether the defendant is guilty of a capital crime.FN93 Even in the best of circumstances, humanizing a defendant to a jury who has just found the defendant guilty of a capital crime after hearing in excruciating detail about that crime is an uphill battle. Linking back to the issue of jury instructions, the structure of capital penalty hearings also means that, as a result of the jury finding statutory aggravating factors at the guilt phase, those being presented in the penalty phase are not being considered in a manner most would hope, and, at the very least, not consistent with Supreme Court precedent.FN94 Mitigating circumstances get very little deliberation. One study revealed that many former capital jurors could not recall the mitigating evidence that was presented in the penalty phase, even when prompted, and those that could believed that such evidence was irrelevant.FN95 Given the current set-up, even if jurors are clear as to what the law requires for mitigating and aggravating evidence, there is a significant question as to whether jurors could truly satisfy the expectations of the Caldwell Court. Evidence seems to support the view that undermining jurors’ sense of responsibility causes them to take their sentencing duty less seriously, and often results in them failing to carefully deliberate the evidence according to the law. The result is that “defendants may be getting sentenced to death without the benefit of a jury determination that they are, in fact, death-eligible.”FN96

How To Help Jurors Accept Moral Responsibility For Their Decisions

Since Caldwell, both Kentucky and federal courts appear to have modified their expectations of capital jurors, moving away from the focus on moral responsibility and particularized justice, and focusing, instead, on consistency.FN97 Increasingly, jurors seem to be simply lending facial legitimacy to the process.FN98 Showing mercy or even acknowledging a defendant’s humanity no longer appears to be our expectation or hope for capital jurors, and capital jurors likely are relieved to give up that role as the community conscience. This Essay highlights one reason to second guess that shift. The accumulated empirical evidence supports the assumptions on which the Caldwell decision was based. Jurors do, in fact, try to minimize their role in capital sentencing decisions, which does reduce their feeling of responsibility for that decision. Prosecutors and judges who highlight and try to downplay the jury’s influence on a capital defendant’s penalty encourage the jury to further abdicate their decision-making function, a problem that is only exacerbated by confusing and unclear instructions on evidence of mitigation and aggravation. The post-Gregg bifurcated trial process further removes jurors from the “awesome responsibility” of being the community’s moral compass. Many scholars have called on the Supreme Court to rethink the procedures meant to ensure that capital punishment is not imposed in an arbitrary and capricious manner. That chorus is joined here by another voice. Even if the Supreme Court does not advance such a move, the state legislature and/or the Kentucky Supreme Court could implement such changes. Swearing in a second jury to consider the penalty decision, separate and distinct from the guilt-phase jury, might be one way to alleviate the inherent bias that comes from a jury who has already decided aggravation and has made up its mind prior to even hearing evidence on aggravating and mitigating factors. Although it might add some clunkiness, as well as additional time and cost, to the proceedings, when a decision as weighty as someone’s life is on the line, the additional administrative burdens are quite minimal. Kentucky should also consider amending its statute so the jury’s decision is presumed to be reliable and a judge can change that decision only in certain extraordinary circumstances. Jurors minimize their role in part because the law is confusing; it tells jurors that they are only recommending a sentence, but also tells them they are to “fix” the sentence. At the same time, the law permits judges to impose a different sentence after the jury has fixed it. Although it is this author’s view that automatic state Supreme Court review of death penalty cases should remain, especially in light of the high error rate, the jury will only truly feel a sense of responsibility if everyone in the courtroom knows and believes that the jury plays that sentencing role. Prosecutors and judges would not be able to downplay juror’s roles, either explicitly or implicitly, if jurors truly are responsible for that decision. There also needs to be a way of communicating that juror fears of someone being out on the street shortly after receiving a life sentence are unrealistic. At the very least, voir dire should be encouraged on this topic and jury instructions amended to make sure the jury’s understandings are accurate. The Supreme Court has been clear that if the prosecution asks for execution based on a defendant’s future dangerousness, the judge must instruct the jurors that the defendant would not be eligible for parole if they authorize a life sentence.FN99 Rather than responding reactively, informing the jury of this fact up front might be one way of addressing the issue.

Conclusion

The Court’s death penalty jurisprudence fails to note one of the most basic reasons why jurors can relatively easily assign responsibility elsewhere: those who authorize the death penalty are inherently removed from the ultimate result. They are never the one to personally carry out, or even observe, the execution they authorize.FN100 Even in the best of scenarios, then, juries are inevitably distant from the repercussions of the most significant ramifications of their decision. The graphic reality of the pain inflicted through the execution process is never laid out before the jurors who are tasked with authorizing the death of another. Given this reality, if jurors are going to be tasked with the “awesome responsibility” of deciding another person’s fate, they need to have an intimate understanding of the full panoply of realities surrounding that decision. The level of discomfort jurors feel in making this decision, even without awareness of the granular details of actually putting someone to death, ultimately provides another reason to reconsider permitting such a punishment.

FN1. Assistant Professor, University of Kentucky College of Law.

FN2. Am. Bar Ass’n, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Kentucky Death Penalty Assessment Report, at xii (2011), available at http://www.americanbar.org/content/dam/aba/administrative/death_penalty_moratorium/final_ky_report.authcheckdam.pdf.

FN3. Robert C. LaFoundation et al., Nat’l Ctr. for State Cts., Examining the Work of State Courts: An Analysis of 2008 State Court Caseloads 1 (2010), available at http://www.courtstatistics.org/other-pages/~/media/microsites/files/csp/ewsc-2008-online.ashx.  (last viewed Jan. 8, 2014).

FN4. See Thomas v. Commonwealth, 864 S.W.2d 252, 260–61 (Ky. 1993); Clark v. Commonwealth, 833 S.W.2d 793, 795–96 (Ky. 1991); Dean v. Commonwealth, 777 S.W.2d 900, 906–07 (Ky. 1989); Sanborn v. Commonwealth, 754 S.W.2d 534, 546 (Ky. 1988); Tamme v. Commonwealth, 759 S.W.2d 51, 52-53 (Ky. 1988); Holland v. Commonwealth, 703 S.W.2d 876, 880 (Ky. 1985); James v. Commonwealth, 703 S.W. 2d 876, 880 (Ky. 1985); Ward v. Commonwealth, 695 S.W.2d 404, 407–08 (Ky. 1985); Ice v. Commonwealth, 667 S.W.2d 671, 675 (Ky. 1984). But cf. McClellan v. Commonwealth, 715 S.W.2d 464, 472 (Ky. 1986) (finding no error as the idea of jury recommendation was not sufficiently prevalent to convey the message to the jury that their decision is not final, but is only a recommendation).

FN5. Gregg v. Georgia, 428 U.S. 153, 191–95 (1976).

FN6. Id. at 162–66.

FN7. Id. at 181.

FN8. Joseph L. Hoffmann, Where’s the Buck? – Juror Misperception of Sentencing Responsibility in Death Penalty Cases, 70 Ind. L.J. 1137, 1138 (1995).

FN9. Craig Haney et al., Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death, J. Soc. Issues, Summer 1994, at 149, 149.

FN10. Caldwell v. Mississippi, 472 U.S. 320, 328–29 (1985).

FN11. Id. at 324 .

FN12. Id.

FN13. Id. at 325–26.

FN14. Id. at 329.

FN15. McGautha v. California, 402 U.S. 183, 208 (1971).

FN16. Caldwell, 472 U.S. at 329-30 (“[T[his Court’s Eighth Amendment jurisprudence has taken as a given that capital sentencers would view their task as a serious one of determining whether a specific human being should die at the hands of the State…. Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an ‘awesome responsibility’ has allowed this Court to view sentence discretion as consistent with – and indeed indispinsible to – the Eighth Amendment[]….”).

FN17. Id.

FN18. Id. at 329. See also Jeffrey Abramson, Death-Is-Different Jurisprudence and the Role of the Capital Jury, 2 Ohio St. J. Crim. L. 117, 128–29 (2004).

FN19. Caldwell, 472 U.S. at 341.

FN20. Id. at 333.

FN21. Id. at 330.

FN22. Michael A. Mello, Taking Caldwell v. Mississippi Seriously: The Unconstitutionality of Capital Statutes that Divide Sentencing Responsibility Between Judge and Jury, 30 B.C. L. Rev. 283, 315 (1989).

FN23. Theodore Eisenberg et al., Jury Responsibility in Capital Sentencing: An Empirical Study, 44 Buff. L. Rev. 339, 342 (1996).

FN24. Id. at 341; Ross Kleinstuber, “Only a Recommendation”: How Delaware Capital Sentencing Law Subverts Meaningful Deliberations and Jurors’ Feelings of Responsibility, 19 Widener L. Rev. 321, 331 (2013).

FN25. William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 Ind. L.J. 1043, 1093–95 (1995).

FN26. See e.g., Eisenberg et al., supra note 23, at 352, 356; Austin Sarat, Violence, Representation and Responsibility in Capital Trials: The View from the Jury, 70 Ind. L.J. 1103, 1130 (1995).

FN27. Eisenberg et al., supra note 23, at 358–59; Hoffmann, supra note 8, at 1152–56; William S. Geimer & Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J. Crim. L. 1, 41 (1988).

FN28. Bowers, supra note 25, at 1094.

FN29. Kleinstuber, supra note 24, at 332.

FN30. See Sarat, supra note 26, at 1130.

FN31. Bowers, supra note 25, at 1095.

FN32. Kleinstuber, supra note 24, at 334.

FN33. Ky. Rev. Stat. Ann. § 532.025(1)(b) (2012).

FN34. Ky. Rev. Stat. Ann. § 532.075 (2012) (“Whenever the death penalty is imposed for a capital offense, and upon the judgment becoming final in the Circuit Court, the sentence shall be reviewed on the record by the Supreme Court.”)

FN35. See, e.g., Romano v. Oklahoma, 512 U.S. 1, 8–9 (1994) (“[A] defendant necessarily must show that remarks to the jury improperly described the role assigned to the jury by local law”) (citation omitted); Slaughter v. Parker, 450 F.3d 224, 240–41 (6th Cir. 2006) (finding that a Kentucky judge who used, but did not make “profligate use” of, the word “recommend” in jury instructions did not err, as technical violations of Caldwell rule do not constitute reversible error).

FN36. Ky. Rev. Stat. Ann. § 532.025(3) (2012). This, of course, presumes the jury is the decision-maker at the penalty phase of trial. Some defendants waive their right to have a jury decide their fate, in which case a judge makes this determination.

FN37. Those states are Alabama, Florida and Delaware. Alabama’s override provision has been in the news recently after the Supreme Court denied certiorari in a case challenging this provision. See, e.g., Adam Liptak, Judges in Alabama Retain the Right to Override Their Juries in Capital Sentencing, N.Y. Times, A15 (Nov. 19, 2013), available at http://www.nytimes.com/2013/11/19/us/alabama-judges-retain-the-right-to-override-juries-in-capital-sentencing.html?_r=0. In Alabama, of the 111 times a judge has overridden a jury’s capital penalty verdict, 91% of the time, the judge has overridden a jury’s life sentence and imposed a death sentence. See Equal Justice Initiative, Updated List of Alabama Overrides, available at http://www.eji.org/ files/12-16-13%20Updated%20Override%20List_0.pdf (last updated Dec. 16, 2013). According to Justice Sotomayor’s opinion dissenting from the majority decision to deny certiorari, in 27 of 32 states with the death penalty, the jury’s decision to impose a life sentence cannot be disturbed by the trial judge. Woodward v. Alabama, 134 S. Ct. 405, 405 (No. 13-5380, Nov. 18, 2013) (Sotomayor, J. dissenting). Justice Sotomayor noted, “[i]n the last decade, Alabama has been the only State in which judges have imposed the death penalty in the face of contrary jury verdicts.” Id.

FN38. Michael L. Radelet, Overriding Jury Sentencing Recommendations in Florida Capital Cases: An Update and Possible Half-Requiem, 2011 Mich. St. L. Rev. 793, 812 (2011) (discussing the difficulty of getting information in these cases).

FN39. Since 1976, Alabama judges have overridden death sentences authorized by juries in favor of life sentences 10/111 times. See Equal Justice Initiative, supra note 37. Florida judges have overridden death to life sentences in ninety-one cases between 1972 and 2011, approximately two per year, and Indiana judges have changed death to life sentences in only nine cases since 1984. Radelet, supra note 38, at 818 tbl. 2, 820–21 tbl. 4 & 6, 822 tbl. 7.

FN40. Radelet, supra note 38, at 813.

FN41. Id. at 814.

FN42. Ky. Rev. Stat. Ann. § 532.025(1)(b) (2012).

FN43. E.g., Bussell v. Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994).

FN44. Stark v. Commonwealth, No. 2005-SC-000332-MR, 2007 WL 2404453, at *8 (Ky. Aug. 23, 2007).

FN45. Id. (quoting Tamme v. Commonwealth, 759 S.W.2d 51, 52 (Ky. 1988)).

FN46. Grooms v. Commonwealth, 756 S.W.2d 131, 141–42 (Ky. 1988).

FN47. 1 W. Cooper & D. Cetrulo, Kentucky Instructions to Juries § 12.04A (5th ed. 2010).

FN48. Eisenberg et al., supra note 23, at 371.

FN49. Id. Kentucky has only had three women sentenced to death since 1976, when the death penalty was reinstated. Two of them had their death sentences overturned on appeal, See Caudill v. Commonwealth, 120 S.W. 3d 635, 648 (Ky. 2003) (affirming death sentence); Foster v. Commonwealth, 827 S.W.2d 670, 672, 683 (Ky. 1991) (reversing death sentence); O’Bryan v. Commonwealth, 634 S.W.2d 153, 154 (Ky. 1982) (same).

FN50. Eisenberg et al., supra note 23, at 371–72.

FN51. Id.; see also Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1555 (1998).

FN52. Eisenberg et al., supra note 23, at 371.

FN53. See id. at 353, 377.

FN54. Sarat, supra note 26, at 1130.

FN55. See e.g., Kleinstuber, supra note 24, at 331 (footnote omitted); Bowers, supra note 25, at 1093–95; William J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness from Capital Sentencing, 39 Crim. L. Bull. 51, 74–75 (2003).

FN56. Kleinstuber, supra note 24, at 331.

FN57. Hoffmann, supra note 8, at 1138 (emphasis in original).

FN58. Marla Sandys, Assoc. Prof., Dep’t of Crim. Just., Indiana Univ., Remarks at The Second Annual Forum on Criminal Law Reform in the Commonwealth of Kentucky: What Kentucky Capital Jurors Misunderstand (Nov. 15, 2013). See also Sarat, supra note 26, at 1131–32 (explaining that Georgia jurors in a capital case were “deeply concerned” with the possibility that defendant might someday be back on the streets, thus each voted for death out of fear that otherwise, he would be out threatening innocent people).

FN59. Sandys, supra note 58. Again, these results appear consistent with other state studies. See, e.g., Eisenberg, supra note 23, at 363 (explaining that 70% of former South Carolina capital jurors believe that “less than half” or “very few” death-sentenced defendants will ever be executed).

FN60. See Sarat, supra note 26, at 1132.

FN61. Eisenberg et al., supra note 23, at 341.

FN62. Caldwell, 472 U.S. at 331.

FN63. See, e.g., Abramson, supra note 18, at 135–36; Sandys, supra note 58.

FN64. Sandys, supra note 58. Sixty-eight percent of former capital jurors in Kentucky believed mitigation evidence needed to be proven beyond a reasonable doubt, despite the fact that the actual standard is preponderance of the evidence, and 11% thought the jury had to be unanimous in its decision as mitigating factors. Fifteen percent of jurors did not know the standards one way or the other.

FN65. See Woodall v. Commonwealth, No. 5:06CV-P216-R, 2009 WL 464939, at *14, *44 (W.D. Ky. Feb. 24, 2009); Smith v. Commonwealth, 845 S.W.2d 534, 540 (Ky. 1993). But see Gall v. Commonwealth, 607 S.W.2d 97, 113–14 (Ky. 1980) (not a basis for reversal).

FN66. Abramson, supra note 18, at 135 (quoting Ursula Bentele & William J. Bowers, How Jurors Decide on Death: Guilt is Overwhelming; Aggravation Requires Death; and Mitigation is No Excuse, 66 Brook. L. Rev. 1011, 1043 (2001)).

FN67. Bowers & Foglia, supra note 55, at 68.

FN68. See St. Clair v. Commonwealth, 319 S.W.3d 300, 303–04 (Ky. 2010).

FN69. Abramson, supra note 18, at 135; Bentele & Bowers, supra note 66, at 1031–38; Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1, 10 (1993).

FN70. Sandys, supra note 58. This finding has been replicated in a multi-state study. See Bowers, supra note 25, at 1091 tbl. 7.

FN71. A survey of former capital jurors in Delaware revealed similar findings. More than 91% indicated that if certain conditions are met, they believe the law requires a death sentence. Kleinstuber, supra note 24, at 332.

FN72. Sandys, supra note 58.

FN73. Id.

FN74. Buchanan v. Angelone, 522 U.S. 269, 272 n.1 (1998).

FN75. Id. at 277–79.

FN76. Weeks v. Angelone, 528 U.S. 225, 229, 234 (2000) (emphasis in original).

FN77. Hoffmann, supra note 8, at 1147.

FN78. Id.

FN79. Id.

FN80. Id. at 1150.

FN81. Dr. Saby Ghoshray, Capital Jury Decision Making: Looking Through the Prism of Social Conformity and Seduction to Symmetry, 67 U. Miami L. Rev. 477, 493–94 (2013).

FN82. Sarat, supra note 26, at 1122.

FN83. Id. at 1126.

FN84. Ghoshray, supra note 81, at 495.

FN85. Id. at 496.

FN86. Marla Sandys, Cross-Overs—Capital Jurors Who Change Their Minds About the Punishment: A Litmus Test for Sentencing Guidelines, 70 Ind. L.J. 1183, 1193 (1995). These findings are consistent with results found outside Kentucky, which showed that “a sizeable number of jurors recall that in deciding guilt, there was explicit discussion of what the defendant’s punishment would or should be.”. Bowers, supra note 25, at 1088.

FN87. Sandys, supra note 86, at 1194. A similar study of Delaware jurors found that 60% had made up their mind on punishment before the penalty phase began. Kleinstuber, supra note 24, at 331–32.

FN88. Sandys, supra note 86, at 1191–92.

FN89. Id. at 1207.

FN90. Id. at 1220.

FN91. Id. at 1207.

FN92. Id. at 1193.

FN93. Abramson, supra note 18, at 150–51. See also Kleinstuber, supra note 24, at 331 (seven of eight cases reviewed involved statutory aggravating factors that were found as a matter of law in the guilty phase).

FN94. Kleinstuber, supra note 24, at 331; Ring v. Arizona, 536 U.S. 584, (2002).

FN95. Kleinstuber, supra note 24, at 332.

FN96. Id. at 323.

FN97. Abramson, supra note 18, at 117, 120–21 (“[A]t one time, the Court’s jurisprudence sought to ensure that juries strive for moral consistency, while still exercising moral mercy when deciding who will be sentenced to death.”); Sarat, supra note 26, at 1115.

FN98. See, e.g., Abramson, supra note 18, at 117.

FN99. See, e.g., Kelly v. South Carolina, 534 U.S. 246, 248 (2002); Shafer v. South Carolina, 532 U.S. 36, 51 (2001).

FN100. Sarat, supra note 26, at 1119–20.

Life and Death in Kentucky: Past, Present, and Future

This Online Original is available for download (PDF) here.

Article | 102 KY. L. J. ONLINE 3 | Nov. 10, 2013

Roberta M. HardingFN1

"All over the United States there is a growing sentiment to do away with capital punishment . . . . If their mood is reflected in the letters they write me daily, a large segment of the Kentucky people want capital punishment abolished, too."FN2 -Former Kentucky Governor Edward Breathitt, May 5, 1965

The first officially recorded execution in Kentucky was carried out in 1780, the year after Kentucky County became the District of Kentucky of the State of Virginia,FN3 when a man was hung for murder in Breckinridge County.FN4 The next four executions also were carried out during Kentucky’s tenure as the District of Kentucky.FN5 These condemned and their predecessor had an attribute in common that is extremely germane to how the death penalty has been administered in Kentucky: their gender, which is male.FN6 A prodigious gender bias, which disfavors male capital offenders, is evident in Kentucky’s historic and contemporary death penalty practice. Since the first execution in 1780FN7 and the last in 2008,FN8 the Commonwealth has executed 427 people.FN9  415 males and 12 females.FN10 The latter account for a paltry 3% of those executed by the Commonwealth, while men account for a whopping 97%! Amazingly the last time Kentucky executed a female capital offender was in the 19th century;FN11 while male capital offenders were executed for the remainder of the 19th century and in the 20th and 21st centuries.FN12 Contemporary capital sentencing statistics aptly convey how deeply entrenched this bias is in the operation of the death penalty. Since 1972, when the United States Supreme Court handed down its seminal decision in Furman v. Georgia,FN13 the Commonwealth has sentenced eighty-two people to death.FN14 96% were male and 4% were female.FN15 Incredibly, these percentages are almost identical to those based on more than two centuries of execution data.FN16 The existence of this bias, however, is not unique to Kentucky; nor has it gone unacknowledged.FN17 The first five people executed also represent another inveterate basis for discrimination found in Kentucky’s historic and modern use of capital punishment: race. Baysinger, the first person to be executed, was white and the quartet following him were African-American.FN18 Thus, 80% of those executed when Kentucky was still a District were of color. This specific bias, as well as its tenacity and pervasiveness, are easily understood when the quartet’s status is considered: All were slaves.FN19 The institution of chattel slavery in Kentucky greatly affected the “racialization” of the administration of capital punishment in the Commonwealth. “Slavery existed in Kentucky from its first days of settlement”FN20 and was an important issue at the Convention to draft Kentucky’s First Constitution.FN21  Kentucky’s strong pro-slavery sentiment was embodied in Article IX of the First Constitution, which prohibited “the passage of legislation which tended to abolish slavery in the state.”FN22 The Constitutions produced at the Second and Third Constitutional Conventions, held respectively in 1799 and 1849, reinforced this institution of inequality by codifying assurances to protect slavery from being abolished.FN23 “The prominent place given the institution [of slavery] in the first three constitutions”FN24 led noted Kentucky historian Thomas Clark to describe Kentucky’s “hold on slavery”FN25 as “tenacious,”FN26 but strangely, “[w]hen the Civil War began, Kentucky was one of four slave states that remained in the Union.”FN27 As the War progressed, however, more and more Kentuckians became outraged by what they perceived to be a federal government that was increasingly taking on the abolitionists’ cause: “[t]hey were fighting for the preservation of the Union, not the destruction of slavery.”FN28 The mere suggestion of emancipation sent some to the verge of apoplexy. This fervor is illustrated by one newspaper editor’s impassioned comments:[I]f the slaves were freed 200,000 soldiers would be required 'to retain Kentucky in the Union, and then the soldiers would be compelled to aid in exterminating the black race.' If the slaves were freed, he asserted, 'there is but one thing to be done with them; they must be wiped out-totally obliterated. It must be a merciless, savage extermination . . . . The two races . . . cannot exist in the same country, unless the black race is in slavery.FN29 Sentiments of this tenor were officially validated when the legislature passed a law permitting the enslavement of any African American entering Kentucky who stated they owed their freedom to the Emancipation Proclamation.FN30 Kentuckians’ anger escalated when President Lincoln decided to recruit African Americans to fight in the war because “it challenged the basic assumption that blacks were inherently inferior to whites.”FN31 While Kentucky did not end up seceding,FN32 the legislature did refuse to ratify the Thirteenth Amendment.FN33 Even after the Secretary of State announced the Amendment had been ratified, the Kentucky legislature “refused to change its stance”FN34 and again voted down ratifying the Amendment.FN35 By all indications, racial inequality had become indelibly ingrained in Kentucky’s social fabric, which adversely affected the workings of the state’s criminal justice system; especially when deciding who should live and who should die. As noted earlier, the Commonwealth has executed 427 people.FN36 Racially, the overwhelming majority of people executed were either African-American, accounting for 54%, or Caucasian, accounting for 42%.FN37 Even though female capital offenders benefit greatly from the death penalty’s gender bias,FN38 the group is responsible for generating one of the most remarkable race and the death penalty statistics: Kentucky has only executed one Caucasian female, while 83% of the females executed were African-American.FN39 Another astounding statistic from this category is that “no white man in Kentucky died on the gallows or in the electric chair for the rape of a black woman.”FN40 In Kentucky, more African-American men, 222,FN41 than Caucasian men, 177,FN42 lost their lives on the scaffold, in the electric chair, or on the gurney.FN43 Eight men belonging to the former group, however, lost their lives because of how a facially race neutral law was applied. Action taken by the legislature in the early twentieth century fostered some hope that the execution of Roger Warren, an African-American male, on May 25, 1911 would be the last execution carried out by hanging.FN44  The year before the legislature authorized switching the state’s sole method of execution from hanging to electrocution.FN45 In addition, executions were to “take place within the walls of the State penitentiary”FN46 away from the purview of the public.FN47 This hope was reinforced when eighteen year old James Buckner, African-American like his predecessor Roger Warren, christened Kentucky’s electric chair “Ole’ Sparky” on July 8, 1911.FN48 Nine years later the outcome in a capital case in Lexington involving an African American man accused of murdering and raping a ten year old white female would land a cruel blow to hopes about transforming the relationship between the rope and violence. In February 1920, twenty three year old Will Lockett confessed to murdering young Geneva Hardman.FN49 Given the circumstances, the sexual assault, the victim/defendant racial and gender paradigm: white female victim and black male defendant, and the girl’s tender age, the authorities “[f]ear[ed] a mob might storm the jail [so they]  . . . rushed [Lockett] to the state penitentiary in Frankfort.”FN50 The next day Lockett was indicted for murder and the judge vowed “there would be no delay . . . and that the trial would start . . . Monday, [February 9, 1920] only five days after the murder.”FN51 The Governor promised “Lexington officials that troops would be sent to protect Lockett on his return to the city.”FN52 The press did its best to  quell the public’s call for mob violence by assuring people that “Lockett’s trial would be quick and the outcome certain”FN53 and they were: in less than thirty minutes Lockett was convicted, though by pleading guilty he helped honor the pledge that justice would be swift,FN54 and “sentenced . . . to die in the electric chair.”FN55 “Although elated . . . a number of Lexington whites expressed the belief that . . . Lockett should have been made to suffer by dying at the end of a rope [in public for sexually assaulting Geneva].”FN56 The legislature’s response to this suggestion was extraordinarily fast and a week after Lockett died by electrocutionFN57the legislature approved an Act to amend section one of the execution by electrocution statute by adding the following: “Except in cases where the accused has been adjudged to suffer a death sentence for the crime of rape or attempted rape, in which event sentence shall be executed by hanging the condemned in the county in which the crime was committed.”FN58 The hanging was supposed to be done “within an enclosure”FN59 and before no more than “one hundred persons.”FN60 Although this law was race neutral, its application decidedly was not. Nine men were executed in accordance with this law and all were men of color.FN61 This law’s success, as well as securing death sentences against African American capital offenders in general, was greatly dependent upon having accommodating juries. This was best achieved by seating all white juries, which was easy to accomplish when African Americans were statutorily expressly barred from being jurors. In the late 19th century, however, the United States Supreme Court created two obstacles in an effort to end this long-standing discriminatory practice: it held that statutes expressly prohibiting African Americans from serving on juries, and racially neutral statutes applied in a manner that accomplishes the same result, violate the accused’s and the excluded potential jurors’ right to equal protection under the Fourteenth Amendment.FN62 As a result, a greater cost was attached to seating an all white jury: violating the defendant’s and potential jurors’ constitutional rights. Smith v. CommonwealthFN63 and Hale v. CommonwealthFN64 are representative of the problem. Smith, “a negro,”FN65 was indicted for murder by an all white grand jury and another all white jury found him guilty as charged and sentenced him to death. On appeal he contended his conviction was invalid because it was no accident that he, “a negro,” was indicted, tried, and convicted by all white juries. Smith apprised the Kentucky Court of Appeals that about twenty percent of the voters in Hardin County were African American and fifteen percent of them were eligible for jury service; yet, the jury commissioners, white men, never selected them.FN66 The court gave short shrift to Smith’s argument, “finding no error” and affirmed the judgment.FN67 Three decades later another ”negro,”FN68 Joe Hale, also convicted of murder and sentenced to death, revisited the issue with the Kentucky Court of Appeals. Hale had evidence to prove that “going back as far as 1906, no member of the African race had been summoned or served on a grand or a petit jury in McCracken county.”FN69 He argued:[T]he foregoing facts, when proved, show a long continued, unvarying and wholesale exclusion of negroes from jury service in this county on account of their race and color; that it has been systematic and arbitrary on the part of the officers and commissioners who select the names for jury service, for a period of fifty years or longer.FN70 The court detected problems with Hale’s proof, starting with his failure to include evidence in the record proving he “was a member of the African race,”FN71 but the court was forgiving of this evidentiary omission and conceded that “the court no doubt by observation knew that fact to be true.”FN72 The court’s greatest concern was about what it deemed Hale’s “failure to charge therein as grounds therefore, that such exclusion of members of the African race from service on juries was superinduced and occurred ‘solely because they were members’ of that race.”FN73  The United States Supreme Court, however, saw the evidence offered by Hale in an entirely different light: “We are of the opinion that the affidavits . . . sufficed to show a systematic and arbitrary exclusion of negroes from the jury lists solely because of their race or color, constituting a denial of the equal protection of the laws guaranteed to petitioner by the Fourteenth Amendment.”FN74 The Court reversed the judgment and remanded the case for “further proceedings not inconsistent with this opinion.”FN75 Unfortunately, Kentucky did not heed the Court’s admonishment that “proceedings not be inconsistent with that opinion” because in 1986, almost half a century later, the state found itself back in front of the Court for the same practice: excluding African Americans from being jurors.FN76 In this round, the state’s exclusionary strategy involved exercising peremptory challenges as a way to get rid of African AmericansFN77 [in order to seat an all white or as close to all white jury as possible]. Once again, the Court chided the Commonwealth for violating constitutional rights that are guaranteed to everyone, regardless of color, creed, gender or religion. Discriminatory practices continue to plague the administration of capital punishment in Kentucky,FN78 despite the fact the Commonwealth was at the vanguard with respect to following a recommendation made by the Supreme Court in 1987 that racial problems associated with the use of the death penalty be resolved through legislation.FN79 And in 1998, Kentucky became the first jurisdiction in the United States to enact a Racial Justice Act.FN80 Yet, there are lingering concerns about the Act’s effectiveness.FN81 The pervasiveness of gender discrimination is disheartening; especially when one remembers that the proportion of women and men sentenced to death in Kentucky during capital punishment’s modern era is almost the same as the proportion of the women and men executed over a period of time exceeding two centuries.FN82 Is history repeating itself? Or, is it simply that little has changed at the core in the use of the death penalty? If so, then perhaps now is the time to implement real tangible change. Certain considerations indicate change might be warranted. In 1962 Kelly Moss was executed.FN83 The following year the people of Kentucky elected Edward Breathitt to serve as the Commonwealth’s Chief Executive and he “brought an already strong aversion to capital punishment with him to the governorship.”FN84  “In the 1964 General Assembly he endorsed a bill abolishing the death penalty.”FN85 He also “announced a general stay of execution for all condemned state prisoners until he could place the measure before the legislature once again in 1966.”FN86 So, for several years, Kentucky could be considered a de facto abolitionist jurisdiction. Three decades passed before Kentucky carried out another execution.FN87 These thirty plus years include periods of time when Kentucky actually did not have capital punishmentFN88 and when Kentuckians decided to partially abolish the death penalty by forbidding it to be imposed on a segment of the population.FN89 Only two people have been executed since McQueen was in 1997 and both were volunteers.FN90 Therefore, it has been sixteen years since Kentucky has used its execution machinery on a non-volunteer. During what collectively amounts to a significant period of time, there was not nor has there been a public outcry when the death penalty has been absent, de jure or de facto, from the Commonwealth. Perhaps that means the time is ripe for changes to be made; specifically, those of the magnitude sufficient to stop Kentucky from going round and round and round on the death penalty wheel, continually repeating the longstanding problems associated with the state’s death penalty practice.

FN1. William T. Lafferty Professor of Law.   Harvard Law School, JD(1986); University of San Francisco, BSBA (1981). I would like to thank third year law students Daniela Erazo and Rachel Warf, my Research Assistants, for the valuable contributions, research and data compilation, they made to this article. I also greatly appreciate the exceptional assistance provided by Beau Steenken, Instructional Services Librarian & Instructor of Legal Research, and Tina Brooks, Electronic Services Librarian.  And a special thanks to Beau Steenken for sharing his immense knowledge of legal history. His mastery of English and colonial legal history made it much easier for me to think and write about certain topics in this article.

FN2. Edward T. Breathitt, Address at University of Louisville Law Day (May 5, 1965), in The Public Papers of The Governors of Kentucky, Papers of Edward T. Breathitt 468, 469 (Robert F. Sexton ed., 1984). Edward “Ned” Thompson Breathitt, a Democrat, served as the Commonwealth of Kentucky’s 51st Governor from December 10, 1963 – December 12, 1967. Kentucky Governor Edward Thompson Breathitt, National Governors Association, http://www.nga.org/cms/home/governors/past-governors-bios/page_kentucky/col2-content/main-content-list/title_breathitt_edward.html (last visited Nov. 5, 2013); List of Governors of Kentucky, http://en.wikipedia.org/w/index.php?title=List_of_Governors_of_Kentucky&oldid=566226955 (last visited Nov. 5, 2013). The two Governors of the Confederate State of Kentucky are excluded from the roster of Kentucky Governors. See Ron D. Bryant, The Confederate Governors of Kentucky, Kentucky Gazette, http://www.jkhg.org/kyconfgovs.htm (last visited Nov. 5, 2013). See infra at note 32 for information about the Confederate State of Kentucky.

FN3. On May 23, 1609, approximately two years after the founding of the British Colony of Virginia, King James of England and Scotland signed The Second Charter of Virginia. The Charter granted the Virginia Company “the land, throughout from sea to sea, west and northwest . . . .” The Second Charter of Virginia § VI (1609), reprinted in 1 Statutes at Large: A Collection of All the Laws of Virginia 80, 88 (William Waller Hening ed., 1823). “[A]s soon as it was apparent that the western country was to be settled,” Virginia created Fincastle County in 1772 from these lands to the west. Thomas D. Clark, A History of Kentucky 65 (The Jesse Stuart Foundation 1988) (1937). Four years later, on the last day of the year America declared her independence from England, Kentucky County was formed out of Fincastle County. Id. at 46, 66. According to noted Kentucky historian Thomas D. Clark, the first permanent settlement of what would be Kentucky County had been established almost two years earlier on March 15, 1775. Id. at 42. In 1779, the Virginia legislature passed an Act making the County of Kentucky the District of Kentucky of the State of Virginia. 1779 Va. Acts 92, ch. XII, § VIII.

FN4. See Kentucky Executions: 1780 – 1962, http://web.archive.org/web/20080617225325/users.bestweb.net/~rg/execution/KENTUCKY.htm (last visited Nov. 5, 2013) [hereinafter Kentucky Executions] (identifying the man’s surname as Baysinger); Executions in the U.S. 1608 – 2002: The ESPY File, Executions by State 120, http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited Nov. 5, 2013) [hereinafter ESPY File].

FN5. See ESPY File, supra note 4, at 120 (stating that the second execution was in 1785, the third and fourth ones in 1787, and the fifth in 1791).

FN6. See Kentucky Executions, supra note 4. Five years after Kentucky’s first execution, Peter Vigo was hanged for theft-stealing in Jefferson County. Two years later, in 1787, Daniel Coleman was hanged in Monroe County for arson and Cato Watts’ life ended on the scaffold in Jefferson County for the crime of murder. The last execution carried out prior to Kentucky obtaining its statehood was in 1791 when twelve-year-old Bill James was hanged for murder in Woodford County. Id.

FN7. See id.

FN8. Marco Chapman, who died by lethal injection on November 21, 2008, was the last person, the 427,th executed by the Commonwealth. Marco Chapman, Death Penalty Information Center, http://www.deathpenaltyinfo.org/marco-chapman (last visited Nov. 5, 2013).

FN9. See ESPY File, supra note 4, at 120-131.

<FN10. Id.

FN11. See Kentucky Executions, supra note 4. When 13-year-old Susan mounted the scaffold in Henry County on February 7, 1868 she became the last female and the 135th person executed by the state. She also is the third, as well as the second youngest and only female, of the ten juvenile capital offenders the Commonwealth executed. Id. Two juvenile capital offenders have been sentenced to death during the modern era of Kentucky’s death penalty practice. See infra note 13 (discussing the commencement of the modern era of capital punishment in the United States). The first was Todd Ice, who was fifteen years old when he committed the offense for which he received a death sentence in 1980. American Bar Ass’n, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Kentucky Death Penalty Assessment Report app. at C (2011), available at http://www.americanbar.org/content/dam/aba/administrative/death_penalty_moratorium/final_ky_report.authcheckdam.pdf. Two years later Kevin Stanford was sentenced to death for a capital offense committed when he was seventeen years old. Id. at E. In 1984 the Kentucky Supreme Court reversed Ice’s conviction when the case was there for mandatory review. See Ice v. Commonwealth, 667 S.W.2d 671, 680 (Ky. 1984). Ice was retried and convicted of a lesser offense and eventually served out his sentence. If, however, Ice had not received relief prior to June 29, 1988, his death sentence would have been invalidated that day by the United States Supreme Court’s opinion in Thompson v. Oklahoma, where Five Justices agreed society opposed imposing death sentences on capital offenders who were younger than sixteen years old at the time the crime was committed; consequently, the Eighth and Fourteenth Amendments rendered this practice unconstitutional. See Thompson v. Oklahoma, 487 U.S. 815, 838 (1988). Kevin Stanford was not as fortunate as Ice because the Kentucky Supreme Court affirmed his conviction and his death sentence. Stanford v. Commonwealth, 734 S.W.2d 781, 793 (Ky. 1987). And, despite its ruling the year before in Thompson, the United States Supreme Court was not persuaded by Stanford’s contention that the failure to exempt sixteen and seventeen year old capital offenders from the death penalty violated the Eighth and Fourteen Amendments. Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (plurality opinion). Close to a decade and a half later, Stanford found relief in the government’s executive branch when former Kentucky Governor Paul Patton commuted his death sentence to life without the possibility of parole or pardon in 2003. See Commutations in Capital Cases on Humanitarian Grounds, Death Penalty Information Center, http://www.deathpenaltyinfo.org/clemency (last visited Nov. 5, 2013). Ice and Stanford are the only two juvenile capital offenders to have death sentences imposed in Kentucky during capital punishment’s modern era: 1971 to the present. See infra note 13.

FN12. See ESPY File, supra note 4, at 124-131.

FN13. Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). The year before the United States Supreme Court had decided McGautha v. California. 402 U.S. 183(1971). The Court’s opinion in McGautha was featured in three of the four dissenting opinions in Furman,  Furman, 408 U.S. at 375 (Burger, J., dissenting); id. at 405 (Blackmun, J., dissenting); id. at 413 (Powell, J., dissenting), and since Furman invalidated death penalty legislation in 39 states, including Kentucky, id. at 417 (Powell, J., dissenting), McGautha played a significant role in the effort by states to fashion a capital sentencing remedy that would comply with Furman.  See, e.g., Ky. Rev. Stat. § 532.030(1) (1974); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). Even though McGautha and Crampton based their challenge to the total discretionary capital sentencing scheme on the Fourteenth Amendment’s Due Process Clause, and the same challenge by Furman, Jackson, and Branch was based on the Eighth and Fourteenth Amendments, for the reasons stated above, I consider  McGautha the case that ushered in the modern era of the practice of capital punishment in the United States. Although Furman v. Georgia, which imposed a four-year legal moratorium on executions, was on its heels,  and then five years later by Gregg v. Georgia, 428 U.S. 153 (1976), where the Court upheld the constitutionality of Georgia’s capital sentencing scheme.

FN14. Prior to the Court’s holding in Furman, Kentucky permitted the death penalty for multiple crimes, including murder, Ky. Rev. Stat. § 435.010 (1970), the rape of a child under the age of twelve, Ky. Rev. Stat. § 435.080(1) (1970), the rape of a female twelve or older, Ky. Rev. Stat. § 435.090 (1970), and lynching or mob violence, Ky. Rev. Stat. § 435.070(2) (1970). The penalty decision was left entirely to the discretion of the sentencing authority, typically a jury.  In Furman, however, five of the nine Justices concluded that “the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishments in violation of the Eighth and Fourteenth Amendments.” Furman v. Georgia, 408 U.S. at 240. For three of the Justices concurring in the judgment “the imposition . . . of the death penalty in these cases,” meant totally discretionary capital sentencing schemes. Id. at 240 (Douglas, J., concurring); id. at 306-07 (Stewart, J., concurring); id. at 310-14 (White, J., concurring). The other two concurring Justices, Brennan and Marshall, concluded the death penalty was per se unconstitutional. Id. at 257, 285, 305-06 (Brennan, J. concurring); id. at 314, 370-71 (Marshall, J. concurring). As a result, on June 29, 1972, the “capital punishment laws of no less than 39 States,” id. at 417 (Powell, J. dissenting), including Kentucky’s, were “nullified,” id., which also had the consequence of transforming all but one of the 50 states into abolitionist states. Id. at 417, note 2 (Rhode Island was the only remaining retentionist state because its sole capital statute called for a mandatory death sentence, which was beyond the purview of the Court’s holding). Two years after Furman Kentucky’s legislature enacted a new capital sentencing scheme, see  Ky. Rev. Stat. § 532.030(1) (1974), that went into effect January 1, 1975. This statute was used to impose death sentences on Wallace Boyd, Boyd v. Commonwealth, 550 S.W.2d 507 (Ky. 1977), Jimmy Self, Self v. Commonwealth, 550 S.W.2d 509 (Ky. 1977), and Ronnie Meadows, Meadows v. Commonwealth, 550 S.W.2d 511 (Ky. 1977): the first three people condemned in Kentucky during the post-Furman era. On July 2, 1976, however, the Kentucky legislature learned the Court decided that a mandatory capital sentencing scheme, the type Kentucky adopted, see Ky. Rev. Stat. § 532.030(1) (1974), was incompatible with the rights guaranteed by the Eighth and Fourteenth Amendments. See Woodson v. North Carolina, 428 U.S. 280 (1976). Consequently, Kentucky, once again, found itself as a state without capital punishment. That same year Kentucky’s legislature convened and enacted yet another post-Furman capital sentencing scheme. When the Court struck down mandatory death sentences, it upheld several guided discretion capital sentencing schemes, see Gregg v. Georgia, 428 U.S. 153) (1976) (joint opinion), Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976), and Kentucky’s egislature decided to enact a guided discretion capital sentencing scheme modeled after Georgia’s, see Ky. Rev. Stat. §§ 532.030(1), (4) (1976), Ky. Rev. Stat. § 532.025 (1976), and Ky. Rev. Stat. § 532.075 (1976), that went into effect December 22, 1976. Several months later the Kentucky Supreme Court reversed the death sentences imposed on Boyd, Self and Meadows and substituted terms of life imprisonment. See Boyd v. Commonwealth, 550 S.W.2d 507, 508-09 (Ky. 1977); Self v. Commonwealth, 550 S.W.2d 509, 510(Ky. 1977); Meadows v. Commonwealth, 550 S.W.2d 511, 513(Ky. 1977). Seventy-nine others in Kentucky were sentenced to death post-Furman. See American Bar Ass’n, supra note 10, at B-F. Their death sentences, however, were imposed in accordance with the guided discretion capital sentencing statutes, Ky. Rev. Stat. §§ 532.030(1),(4) (1976), Ky. Rev. Stat. § 532.025 (1976), and Ky. Rev. Stat. § 532.075(1976). Thus, between 1974 and 2011 the Commonwealth has condemned eighty-two people.

FN15. See supra note 13.

<FN16. See supra notes 8-10 and accompanying text.

FN17. In 1972, a year after the commencement of the modern era of capital punishment, see supra note 13, Justice Marshall identified gender as one of several forms of discrimination long associated with the administration of capital punishment in the United States. Justice Marshall succinctly described the situation as one with “overwhelming evidence that the death penalty is employed against men and not women. Only 32 women have been executed [nationally] since 1930, while 3,827 men have met a similar fate.” Furman v. Georgia, 408 U.S. at 365 (Marshall, J., concurring). The Justice goes on to note that since “[m]en kill between four and five times more frequently than women,” id. at note 154, some of the incongruity might be attributed to differences in socialization, “[h]ence, it would not be irregular to see four or five times as many men executed as women. The statistics show a startlingly greater disparity, however.” Id. Fifteen years later, the gender issue surfaced in an important case in the Court’s body of capital jurisprudence. See McCleskey v. Kemp, 481 U.S. 279 (1987). Here the Court not only acknowledged that gender plays a role in the sentencing authority’s decision to impose a death sentence, see id. at 315-17 & n.40, but also very likely the existence of this bias contributed toward the Court holding, despite statistical evidence of the racially discriminatory impact of the death penalty, findings the Court assumed were statistically valid, see id. at 291 n.7, Warren McCleskey, an African-American man, was not sentenced to death in a manner that violated either the Eighth or Fourteenth Amendments. Id. at 319.

FN18. ESPY File, supra note 4, at 120.

FN19. Kentucky Executions, supra note 4.

FN20. Lowell H. Harrison, Slavery in Kentucky: A Civil War Casualty, 5 Ky. Review 32, 32 (1983). Historian Thomas Clark notes “it was only natural that the early pioneers should transfer the institution [of chattel slavery] from Virginia to their farms west of the mountains.” Clark, supra note 3, at 192.

FN21. See Harrison, supra note 20, at 32. In 1789 Virginia passed an Act supporting the District of Kentucky’s quest to attain independent statehood status. 1789 Va. Acts 10, ch. XIV. Two years later the First United States Congress consented to the formation of a “new State . . . within the jurisdiction of the Commonwealth of Virginia,” Act of Feb. 4, 1791, ch. 4, 1 Stat. 189 ( 1791), and to the admission of this new state “into this Union, by the name of the State of Kentucky.” Id. Since the District of Kentucky was scheduled to be admitted into the Union by June 1, 1792, a constitution had to be drafted and approved before then. Clark, supra note 3, at 92. This deadline was met when Kentucky’s First Constitution was approved April 19, 1792. Ky. Const. of 1792. Subsequently, on June 1, 1792 the District of Kentucky became the State of Kentucky and the fifteenth member of the Union. Clark, supra note 3, at 92.

FN22. Clark, supra note 3, at 95. See also, Ky. Const. of 1792, art. IX.

FN23. Clark, supra note 3, at 113, 210-11, 305, 308, 310, 340; see also See Harrison, supra note 20, at 32 (“[T]he right of property is before and higher than any constitutional sanction, and the right of an owner of a slave to his property is the same and as inviolate as the right of an owner of any property whatsoever”) (quoting Ky. Const. of 1850, art. XII, § 3).

FN24. Clark, supra note 3, at 212.

FN25. Id.

FN26. Id.

FN27. Harrison, supra note 20, at 32.

FN28. Id. at 33.

FN29. Id. at 34; see also id. at 35-36.

FN30. Id. at 36.

FN31. Id. In fact, the “state protests were so violent that the order was suspended until February 1864.” Id.

FN32. Although, slightly more than six months after the Civil War began, a group of Confederate sympathizers held a secession convention in Russellville, Kentucky. On November 20, 1861 the unelected group proclaimed Kentucky’s secession from the Union and inaugurated George W. Johnson, who hailed from Scott County, as the first Governor of the Confederate State of Kentucky. Even though Jefferson Davis, President of the Confederate States of America, harbored doubts about the legality of Kentucky’s secession on December 10, 1861, the Commonwealth of Kentucky became the thirteenth state of the Confederate States of America. After Governor Johnson died in battle on April 8, 1862, Richard Hawes, a resident of Bourbon County, became the second Governor of the Confederate State of Kentucky. He retained the position until the fall of the Confederacy. The tenure of the Confederate State of Kentucky was short-lived and had no effect on the Commonwealth of Kentucky’s status as a member of the United States of America. See Bryant, supra note 2.

FN33. Harrison, supra note 20, at 39.

FN34. Id. at 40.

FN35. Id. See also George C. Wright, Racial Violence in Kentucky, 1865 – 1940, at 20 (1990).

FN36. See supra note 9 and accompanying text.

FN37. African-Americans and Caucasians account for 96% of the total. One Native American male was executed, see Kentucky Executions, supra note 4 (see execution 104), and the races of 16 people, 3.7 % of those executed, are unknown. ESPY File, supra note 4, at 120-31.

FN38. See supra notes 6-17 and accompanying text (identifying and discussing the gender bias inherent in the administration of the death penalty).

FN39. ESPY File, supra note 4, at 120-23. Kentucky has executed twelve females. One Caucasian female, one female whose race is unknown, and ten African-Americans. Id.

FN40. Wright, supra note 35, at 299.

FN41. ESPY File, supra note 4, at 120 – 131. This figure excludes extra-judicial lynchings. See generally Wright, supra note 35, at 1-11, 13-14, 61-107, 166, 307-323.

FN42. ESPY File, supra note 4, at 120 – 131. See also, Marco Chapman, supra note 8. Although separated by more than two centuries, the first person and the last the Commonwealth executed were Caucasian men. Id.; see also ESPY File, supra note 4, at 120.

FN43. In 1965 Kentuckians were officially put on notice about their racially skewed death penalty when then Governor Breathitt informed them that “[s]ince the electric chair was placed in operation at Eddyville State Penitentiary in 1911, some 162 men have been electrocuted. Of this number, approximately one-half have been Negroes.” Breathitt, supra note 2, at 469.

FN44. For 130 years, hanging was the state’s official method of execution. See ESPY File, supra note 4, at 127. Since rope was an item commonly used to lynch people, a sense of incongruity associated with the state’s “official” method of execution developed because it too called for a rope. In fact, in the context of lynching, someone aptly described the rope as a “white man’s death.” Wright, supra note 35, at 92. For example, one Christmas Day, the day before a black man’s murder trial was scheduled to start, even though “[t]he county judge and prosecuting attorney [were] . . . confident that the law would have punished [the man],” id. at 74 (emphasis added), a mob extracted him from the jail and “hanged him from a tree in the courthouse yard.” Id. (emphasis added). That same week, but in a different part of Kentucky, another black man was removed from the local jail and “carried to the courthouse yard and hanged.” Id. at 75 (emphasis added). Given this longstanding “connection” between hanging and lynching, the hope was that adopting a different method to use for state sanctioned killing would eventually check the strength of the rope’s ability to legitimize lethal violence.

FN45. See Act of March 15, 1910, ch. 38, §1, 1910 Ky. Acts 111.

FN46. Id.

<FN47. See Wright, supra note 35, at 255-56.

FN48. See Electric Chair Used in Kentucky, N.Y. Times, July 9, 1911. Wright, supra note 35, at 275 & n.27.

FN49. Wright, supra note 35, at 194.

FN50. Wright mentions Lockett might also have sexually assaulted little Geneva, but to expedite the process, Lexington officials decided to only indict Lockett on murder. Id. at 256. Documents containing information about the 427 people executed in Kentucky, however, list murder and rape as the capital crimes Lockett was found guilty of committing. ESPY File, supra note 4, at 127; Kentucky Executions, supra note 4.

FN51. Wright, supra note 35, at 195.

FN52. Id. (emphasis added).

FN53. Id. (emphasis added).

FN54. Id. at 195.

FN55. Id.

FN56. Id. at 256 (emphasis added).

FN57. Will Lockett was executed in the electric chair on March 11, 1920. See ESPY File, supra note 4, at 127.

FN58. See Act of March 17, 1920, ch. 163, §1, 1920 Ky. Acts 693; Kentucky Statutes § 1137-1 (1920).

FN59.  See Act of March 17, 1920, ch. 163, §1, 1920 Ky. Acts 693.

FN60. Id. at 693. George Wright recounts occasions when this provision was blatantly disregarded. See Wright, supra note 35, at 256-57. Rainey Bethea’s public hanging in Owensboro, Kentucky on August 14, 1936 attracted thousands of people. Id. at 257-58. It should also be noted that Kentucky was “the last state in which public hangings were conducted.” Id. at 258.

FN61. ESPY File, supra note 4, at 128-29. After the Rainey Bethea fiasco, it was decided John Montjoy and Harold Venison, the last two men who had their death sentences imposed under the 1920 amendment, should still die on the gallows but not in public venues. Wright, supra note 35, at 258. Even though legislation repealing this amendment to Kentucky Statute § 1137-1 was passed and approved in March 1938, see Act of March 12, 1938, ch.131, 1938 Ky. Acts 640, only a few months before Venison’s execution was scheduled, he still had to be executed by hanging, which was done on June 3, 1938. ESPY File, supra note 4 at 129. Electrocution was restored as Kentucky’s sole method of execution. See Kentucky Statutes § 1137-1 (1938). In 1998 Kentucky made lethal injection the state’s second method of execution. Ky. Rev. Stat. § 431.220. However, both methods are only available to people sentenced to death on or before March 31, 1998. Id.

FN62. Strauder v. West Virginia, 100 U.S. 303 (1879); Neal v. Delaware, 103 U.S. 307 (1880).

FN63. Smith v. Commonwealth, 91 S.W. 742 (Ky. 1906).

FN64. Hale v. Commonwealth, 108 S.W.2d 716 (Ky. 1937), rev’d, 303 U.S. 613 (1938) (per curiam).

FN65. Smith v. Commonwealth, 91 S.W. at 742.

FN66. Id.

FN67. Id.

FN68. Hale v. Commonwealth, 108 S.W.2d at 716.

FN69. Id. at 717.

FN70. Id. at 718 (emphasis added).

FN71. Id. at 717.

FN72. Id.

FN73. Id. at 718.

FN74. Hale v. Kentucky, 303 U.S. 613, 616 (1938) (per curiam).

FN75. Id.

FN76. Batson v. Kentucky, 476 U.S. 79 (1986).

FN77. Id. at 79-80.

FN78. See American Bar Ass’n, supra note 10, at 345-378.

FN79. McCleskey v. Kemp, 481 U.S. 279, 319 (1987).

FN81. The Racial Justice Act went into effect on July 15, 1998. Ky. Rev. Stat. § 532.300. More than a decade passed before another retentionist state followed Kentucky’s lead.  In August 2009, North Carolina became the second state to enact a Racial Justice Act for capital cases. See Race and the Death Penalty, Death Penalty Information Center, http://www.deathpenaltyinfo.org/race-and-death-penalty (last visited Nov. 5, 2013). For more information about Kentucky’s Racial Justice Act see Gennaro Vito, The Racial Justice Act in Kentucky, 37 N. Ky. L. Rev. 273, 276-78 (2010).

FN81. See, e.g., Vito, supra note 80, at 279-80; See American Bar Ass’n, supra note 11, at 345-378.

FN82. This is the period of time between the first execution in 1780 and the last one in 2008. See ESPY File, supra note 4, at 121; Marco Chapman, supra note 8.

FN83. Breathitt, supra note 2, at 471, n. 3; EPSY File, supra note 4, at 131. Moss was the last person the state executed prior to capital punishment’s modern era. See supra note 13.

FN84. Breathitt, supra note 2, at 471, n.3.

FN85. Id. The measure, however, was unsuccessful.

FN86. Id.

FN87. Harold McQueen was executed by electrocution on July 1, 1997. He was the first person the Commonwealth executed in more than thirty decades . ESPY File, supra note 4, at 131.

FN88. Kentucky was a non-retentionist state from June 29, 1972 until December 31, 1974 and from July 2, 1976 until December 21, 1976. See supra note 14.

FN89. In 1990 the people of the Commonwealth decided to abolish the death penalty for intellectually disabled individuals. See Ky. Rev. Stat. §§ 532.130, 532.135, 532.140. This is another instance where Kentucky was one of the first jurisdictions to dismantle part of its death penalty practice. See Penry v. Lynaugh, 492 U.S. 302, 334 (1989) (noting that in 1988 Georgia had partially abolished the death penalty in the same way and Maryland had but the law did not go into effect until July 1, 1989).

FN90. Edward Harper Jr. and Marco Chapman, respectively executed in 1999 and 2008, ESPY File, supra note 4, at 131, Marco Chapman, supra note 8, were volunteers, see Information on Defendants Who Were Executed Since 1976 and Designated as “Volunteers”, Death Penalty Information Center, http://www.deathpenaltyinfo.org/information-defendants-who-were-executed-1976-and-designated-volunteers (last visited Nov. 5, 2013), which in some cases is considered tantamount to “suicide by state.” See Michael Blume, Killing the Willing: “Volunteers,” Suicide and Competency,  Death Penalty Information Center, http://www.deathpenaltyinfo.org/documents/BlumeVolunteerArticle.pdf. Currently, Kentucky has 33 condemned inmates. All but one are male. See Kentucky Department of Corrections, Death Row Inmates, http://corrections.ky.gov/communityinfo/pages/deathrowinmates.aspx (last visited Nov. 5, 2013).

The Commonwealth's Response to Kentucky's Pill Mill Problem

This Online Original is available for download (PDF) here.

Article | 102 KY. L. J. ONLINE 2 | Oct. 27, 2013

Peter P. CohronFN1

Introduction

Prescription pain pill abuse and misuse is a substantial problem in Kentucky.FN2 In the Commonwealth, over one thousand deaths per year are attributable to drug overdoses.FN3 This figure is the sixth highest in the country and represents more deaths than those caused by automobile accidents. Additionally, Kentucky ranks as the fourth most medicated state in the United States, though it ranks twenty-sixth for population.FN4 Governor Steve Beshear has acknowledged the problem, “We have an epidemic in Kentucky that we cannot ignore….We are losing lives. We are losing families, and we’ve got to aggressively attack that problem.”FN5 Much of the state’s drug problem was the result of pain pill mills, alleged pain management clinics where patients were prescribed controlled substance (narcotic) prescription medication following either a cursory examination or no examination by the physician on site. The phrase “pill mill” is nomenclature used by local and state police investigators most often to describe a physician or clinic, and occasionally a pharmacy, that is prescribing or dispensing controlled substance narcotics inappropriately or for non-medical reasons.FN6 However, the Governor’s call to arms was not solely aimed at these so-called clinics. Governor Beshear sought comprehensive legislation that would address all of  the concerns regarding the prescribing and use of controlled substances including  properly organizing and running pain management facilities, properly training physicians prescribing these dangerous drugs, balancing the interests to provide a watchful but not overly intrusive eye on the patient consumer of these drugs, and providing authority for the proper administrative boards and the necessary police powers to act in cases of prescribing regulations. In a demonstration of the importance of this issue, Governor Beshear called a special session of the Kentucky Legislature to provide for a solution.

House Bill 1 (KRS 218A.172)

The Legislature responded with House Bill 1 (HB1).FN7 House Bill 1 recognized the necessity of having properly managed and maintained pain management clinics. Therefore rather than banning such facilities outright, HB1 sought to achieve quality care by instituting standards for opening and running such a clinic. The Legislature attempted to balance the need for regulation due to the prevalence of the misuse of these medications leading to dependence and violence with the privacy concerns of the prescription pill user. HB1 attempted to strike this balance by limiting scope of the bill to Schedule IIFN8 controlled substances and other controlled substances containing hydrocodone.FN9 However, in promulgating administrative regulations pursuant to this bill, under KRS 218A.172, which is also limited to these drugs, the Kentucky Board of Medical Licensure relied on KRS 218A.205, a statue regarding reports of improper, inappropriate, or illegal prescribing or dispensing of controlled substances. As a result, the regulation promulgatedFN10 was not limited to Schedule II controlled substances and controlled substances containing hydrocodone, but included all controlled substances except Schedule V.FN11 A primary issue addressed by the regulation is the physician’s decision to prescribe a controlled substance to a patient for pain. Under this regulation, in order to prescribe controlled substances, a physician must meet certain professional standards. Prior to prescribing, the physician must obtain an “appropriate medical history relevant to the medical complaint,”FN12 obtain a KASPER report on the patent,FN13 make a “deliberate decision” to prescribe a controlled substance after weighing the benefits of the drug against the risks,FN14 and counsel the patient regarding how to take the drug and when to stop the treatment.FN15 As many of the patients at pain management facilities, legitimate and otherwise, are chronic controlled substance users, the regulation sets forth additional standards for prescribing for this patient population. These standards apply to all patients over the age of sixteen who are being treated with controlled substances for longer than 3 months.FN16 Before prescribing and regularly afterwards, the prescribing physician must obtain a history of the illness or condition, a past medical history, including any relevant family history and any history of past substance abuse, and a psychosocial history.FN17 To ensure a first time face-to-face meeting between patient and physician, there must be an appropriate physical examination that supports the patient’s claim of chronic pain,FN18 and a baseline assessment that establishes starting measurements by which to gauge future progress or decline in the condition.FN19 If this screening indicates any propensity or indication of substance abuse, the physician is required to refer the patient to an appropriate treatment center or provider.FN20 If the patient shows an indication or risk of diverting the prescribed drugs, the physician shall employ the use of a prescribing agreement, or pain management contract.FN21 Where there is any indication of either behavior, prior to the prescribing of controlled substances, the physician must perform a baseline drug screen.FN22 Once a patient begins long term continuing treatment for pain, the physician must meet additional requirements. The patient must be re-evaluated on a monthly basis by the physician and then at appropriate intervals.FN23 If improvement is expected and does not occur, the physician must refer the patient to an appropriate physician for consultation.FN24 The patient is also required to have an annual physical examination.FN25 The physician also must obtain follow-up KASPER reports at least every 3 months.FN26 Frequently when pharmacies deny filling pain mill prescriptions these patients present in hospitals’ emergency departments complaining of pain. In order to deter this behavior, the regulation placed limits on emergency doctors’ ability to prescribe these medications. Under the new law, emergency doctors were prohibited from administering IV controlled substances,FN27 replacing a lost or stolen prescription for a controlled substance,FN28 replacing a methadone Subutex or Suboxone dose for a patient in a drug treatment program,FN29 prescribing controlled release products such as Oxycontin,FN30 or prescribing more than a 7 day supply of a controlled substance.FN31 For the treatment of other conditions (excluding pain), the same standards apply. In the case where the patient has a psychiatric complaint, an appropriate psychiatric examination must be performed prior to prescribing controlled substances.FN32 If the on-site physician is, or feels, unqualified to perform a psychiatric examination, the patient must be referred to an appropriate physician or facility.FN33 In seeking to establish its authority and determine its scope, HB1 defined a pain management facility as a facility where the majority of patients are treated for pain with controlled substances, and 1) the primary practice component is pain treatment, or 2) the clinic advertises any type of pain management services.FN34 HB1 regulated the ownership of such pain management facilities by requiring that only a fully licensed physician may own or have an investment interest in a pain clinic, though clinics in existence before July 20, 2012 were grandfathered in.FN35  Additionally, one physician owner must be on-site at least 50% of the time the facility is open and he must be engaged in the practice of medicine at the site.FN36 This physician must hold a current American Board of Medical Specialties (ABMS) subspecialty certification, American Osteopathic Association Bureau of Osteopathic Specialties (AOABOS) certification in pain management, or a current ABMS or AOABOS certification in hospice or palliative care, or hold board certification by the American Board of Pain Medicine or American Board of Interventional Pain Physicians, or have done a residency or fellowship in pain management.FN37 In another move to legitimize treatment for those truly in pain, HB1 addressed the issue of payment. Prior to enactment of HB1, unscrupulous physicians were preying on those in chronic pain by accepting cash as the only form of payment, thus obfuscating the facility’s records. HB1 required that pain management facilities accept private health insurance and payment only from the patient, responsible caregiver, and/or insurance.FN38 After HB1 was implemented with relevant administrative regulations physicians, while agreeing that prescription drug abuse was “an out of control issue in Kentucky” and a very serious problem, criticized HB1.FN39 The critics were not limited to physicians, as hospitals and patients also claimed that “HB 1 in its present form restricts too many drugs in too many clinical settings, needlessly complicating medical care.”FN40 Because of HB1, many patients incurred costs for drug testing that their insurance would not cover.FN41 For these reasons, the bill seemed to, in effect, punish the patient in more ways than it was aiding in the fight against pill mills.

House Bill 217

In response to these criticisms, Governor Beshear signed into law House Bill 217 (HB217) on March 5, 2013. This bill was designed to address and eliminate the problems created by HB1.FN42 The purpose of this new bill was to remove onerous requirements from both physician and patient, while continuing to address the widespread drug abuse problem in Kentucky and seeking to provide adequate medical care and treatment for those patients truly in pain, acute or chronic. The all-encompassing sweep of HB1 had previously required that every entity in the Commonwealth be covered by HB1. To remedy this scope issue, HB217 exempted hospitals, long term care facilities, hospices, and end-of-life care centers that prescribe controlled substances and research facilities from the reporting and prescribing requirements.FN43 These facilities and prescribers were determined to only contribute slightly to pain pill abuse and therefore their inclusion under HB1 was deemed unduly burdensome. HB217 also addressed HB1’s requirement that each facility whose primary function or business was pain management have some kind of certification in pain control or management. Critics argued that this requirement, though reasonable, was problematic as it forced the closure of businesses until their physicians could comply with the certification. HB217 amended this requirement to allow facilities without such certification to stay open if they were “making reasonable progress toward completing or holding, a certification.”FN44 Next, the bill revised the KASPER requirement of HB1. Under the previous bill, KASPER checks were not limited to a specific time period prior to treatment. Therefore, KASPER reports had to be sought as far back as obtainable. Critics argued that this was an unnecessary administrative burden and that it created an impediment to establishing effective treatment plans.FN45 Additionally, there was concern that patients who had successfully completed a drug addiction treatment program would be characterized incorrectly by reference to their past records. HB217 addresses these concerns by limiting the scope of the KASPER check to twelve months previous to the day of the examination or prescription for controlled substances.FN46  However, HB217 requires that if treatment extends beyond ninety days, then the KASPER query be repeated every three months.FN47 The major criticism from physicians of HB1 was that requiring a physical examination and a medical history review prior to prescribing a controlled substance was an undue burden, repetitive, and time-consuming. To attempt to balance all of the interests involved, HB217 removed the word “complete” from the legislation so that physicians, in the exercise of professional judgment, could limit the scope of the examination to those facets important to the medical complaint. Second, the requirement for an examination was changed and required now only when “appropriate to the patient’s medical complaint.”FN48 This requirement relieves the physician from completing a physical examination, especially in circumstances where the physician is already well acquainted with the patient’s condition, and additionally relieves the patient of the costs of unnecessary testing. Even with the changes implemented by HB217, critics continue to have concerns. Critics worry that physicians, faced with significant oversight, may treat pain too cautiously or not at all. The fear continues to be that legitimate patients in extreme pain will still have substantial obstacles to obtaining the medication that they need.FN49

Conclusion

The impact of the legislation was largely seen prior to the enactment of HB217. When HB1 had been in force for less than three months, ten pain management pill mills in the Commonwealth of Kentucky had closed. Prescriptions for the pill mill “cocktail”FN50 have dropped dramatically. The number of KASPER subscribers had tripled, and KASPER is handling, on average, more than 18,000 requests a day (of which over 90% are responded to in less than fifteen minutes).FN51 With the passage of HB1 and HB217, the Kentucky Legislature has taken a strong and serious step towards ending the epidemic of drug abuse widespread in the Commonwealth. The willingness of the Legislature to flexibly and quickly address issues with the initial bill emphasizes its concern for this issue. However, HB1 and HB217 merely address only one of the root causes of the drug problem in Kentucky. Therefore neither the citizenry nor the Legislature should celebrate the accomplishments made by these bills, but instead, they should swiftly seek out other effective ways to help significantly address and substantially eliminate the drug problem in Kentucky.

FN1. Peter P. Cohron is a graduate of the University of Kentucky colleges of Pharmacy and Law.  He practices in both professions, as a pharmacist for a major retail chain and as an attorney in private practice mainly dealing with pharmacy related issues.

FN2. The definition of drug or substance abuse is the use of a drug for a result unintended by the prescriber, e.g., getting high. Misuse is defined as the use of a drug for an intended result but taken in a manner or dose not prescribed. Abuse, The Free Dictionary.com, http://medical-dictionary.thefreedictionary.com/abuse (last visited September 15, 2013).

FN3. Stop Rx Abuse Before It Starts, Office of the Attorney General, http://ag.ky.gov/rxabuse/Pages/default.aspx (last visited Sept. 15, 2013).

FN4. Id.

FN5. Mike Wynn, Kentucky Senate Passes Pill Mill Legislation, Courier-Journal (Louisville), March 28, 2012, http://www.courier-journal.com/article/20120328/NEWS01/303280092/Kentucky-Senate-passes-pill-mill-legislation.

FN6. Id.

FN7. H.R. 1A, 2012 Gen. Assemb., 1st Spec. Sess. § 1(1)(A) (Ky. 2012) (hereinafter HB1).

FN8. Schedule II controlled substances are defined in Ky. Rev. Stat. §§ 218A.060–070 (LexisNexis 2013).

FN9. Hydrocodone is a Schedule III controlled substance, defined in Ky. Rev. Stat. §§ 218A.080–090 (LexisNexis 2013) and referenced as “dihydrocodeinone,” a synonym for hydrocodone that is marketed under such brand names as Lortab, Vicodin, and Norco.

FN10. Professional Standards for Prescribing and Dispensing Controlled Substances, 201 Ky. Admin. Reg. 9:260 (September 2013).

FN11. Id. at § 1(2)(g).

FN12. Id. at § 3(1).

FN13. Id. at § 3(2). KASPER, Kentucky All Security Prescription Electronic Record, is a monitoring system for all controlled substance prescriptions dispensed in the Commonwealth of Kentucky.

FN14. Id. at § 3(3).

FN15. Id. at §§ 3–5.

FN16. Id. at § 4(1).

FN17. Id. at § 4(2)(a).

FN18. Id. at § 4(2)(b).

FN19. Id. at § 4(2)(c).

FN20. Id. at § 4(2)(h)(2).

FN21. Id. at (4)(2)(h)(3). These agreements or contracts may limit who may prescribe controlled substances to the patient, state the pharmacy where the patient must fill his prescriptions, and/or require random pill counts and drug tests.

FN22. Id. at § (4)(2)(h)(4).

FN23. Id. at § (5)(2)(a)(1).

FN24. Id. at § (5)(2)(e).

FN25. Id. at § (5)(2)(h).

FN26. Id. at § (5)(2)(i).

FN27. Id. at § (6)(1).

FN28. Id. at § (6)(2).

FN29. Id. at § (6)(3).

FN30. Id. at § (6)(4).

FN31. Id. at § 7(1)(a).

FN32. Id. at § (6)(6).

FN33. Id. at § (7)(1)(a)(1)-(2).

FN34. H.R. 1A, 2012 Gen. Assemb., 1st Spec. Sess. § 1(1)(A) (Ky. 2012) (hereinafter HB1).

FN35. Id. at § 1(2).

FN36. Id. at § 1(3).

FN37. Id.

FN38. Id. at § 1(4).

FN39. Gregory A. Hood, Kentucky House Bill 1: Controlled Substance Regulations, Perhaps Nationally Next?, Weekend Call (July 21, 2012, 08:18 PM), http://boards.medscape.com/forums/?128@@.2a339438!comment=1.

FN40. John Cheves, Kentucky Lawmakers Expected to Alter Pill Mill Bill in Session That Starts Tuesday, Lexington Herald-Leader, January 5, 2013, http://www.kentucky.com/2013/01/05/2465788/ky-lawmakers-expected-to-alter.html.

FN41. Id.

FN42. Kentucky “Pill Mill Bill” Amended by House Bill 217, Frost Brown Todd (Mar. 6, 2013), http://www.frostbrowntodd.com/resources-1579.html.

FN43. H.R. 217, 2013 Gen. Assemb., Reg. Sess. § 1(4) (Ky. 2013) (hereinafter HB 217).

FN44. Id. at § 2(3)(f).

FN45. Kentucky “Pill Mill Bill” Amended by House Bill 217, supra note 41.

FN46. HB217 at § 1(1)(b).

FN47. Id. at § 1(2)(b)(1).

FN48. Id. at § 1(1)(a).

FN49. Gregory A. Hood, Kentucky House Bill 1: Controlled Substance Regulations, Perhaps Nationally Next?, Weekend Call (July 21, 2012, 08:18 PM), http://boards.medscape.com/forums/?128@@.2a339438!comment=1.

FN50. Usually a pain pill mill cocktail includes prescriptions for carisoprodol, alprazolam, and either hydrocodone or oxycodone-containing painkillers.

FN51. Press Release, Kentucky Office of the Attorney General, New Prescription Abuse Laws Driving Pill Mills Out of Business, Investigations of Overprescribers Launched (Oct. 17, 2012), available at http://migration.kentucky.gov/newsroom/ag/fewerpillmills.htm.

Sticks and Stones: A Needed Legislative Reform to Kentucky's Approach to Cyberbulling

This Online Original is available for download (PDF) here.

Article | 102 KY. L. J. ONLINE 1 | Sept. 22, 2013

Amanda East

Introduction

It can hardly be argued that…students…shed their constitutional rights to freedom of speech…at the schoolhouse gate.FN1

Reading, writing, and arithmetic are the “three r’s” used to describe the foundation of the typical American education. Another unspoken fixture of the American classroom is bullying. This longstanding practice has entered the new millennium, and technology has given bullies new ways to torment victims. Kameron Jacobsen was a high school freshman in New York who enjoyed spending time with his family and was constantly using Facebook, a social networking site, to interact with his classmates.FN2 This social forum became a nightmare when his peers used it to taunt and ridicule Kameron until he committed suicide.FN3 His family had no available recourse because, like most states, New York’s legislative and judicial branches are ill-prepared to address the emerging issue of cyberbullying.FN4 Perhaps worst of all, Kameron is not the first student to be “a victim of cyberbullying,” nor is he the last. In the Bluegrass State, Rachael Neblett, a seventeen-year old high school student took her life in 2006 under similar circumstances.FN5 The Internet has benefited teenagers in a number of ways, but, in conjunction with these benefits, courts have seen increased litigation regarding cyberbullying.FN6 The absence of Supreme Court precedent on this issue has resulted in an array of state and federal court decisions. State legislatures have amended or adopted new statutes to address this problem. I contend that in order to sufficiently address cyberbullying, Kentucky needs to recognize schools have an important interest in preventing cyberbullying and need broader authority to effectively address this problem. Kentucky needs to enact legislation, similar to Vermont or Massachusetts, permitting schools to regulate off-campus Internet student speech. This broadening of what it means to be “within” the “schoolhouse gates” is justified because of the nature of the interest and the legislature’s ability to tailor schools’ authority in order not to infringe on protected speech. In order to prove this thesis, Part I will begin by defining cyberbullying. Part II will then examine lower court decisions on the cyberbullying issue, beginning with relevant Supreme Court precedent, and the developing body of case law, identifying three standard cyberbullying approaches taken by lower courts. Part III will address state legislatures’ responses to cyberbullying. Part IV will analyze efforts by the House of the Kentucky General Assembly to amend existing statutes and their shortcomings, and finally Part V will conclude with an appeal for additional cyberbullying legislation in Kentucky.

I.      Cyberbullying and its Effects

Cyberbullying is distinguishable from traditional bullying in four ways. First, the aggressor can choose to remain anonymous by creating a false, online identity, establishing a sense of power and control.FN7 Second, the speed of dissemination ensures the victim will more readily experience the bullying.FN8 Third, the Internet has unlimited reach ensuring “cruel and sadistic behavior [will be] amplified and publicized, not just on the campus [of a school], but throughout the world.”FN9 Last, the victim’s torment is constant and inescapable because he or she experiences it every time they access the Internet.FN10

II.      Student Speech and The First Amendment: An Overview

A. Supreme Court Student Speech Jurisprudence

In the wake of increased litigation, lower courts have used four seminal Supreme Court cases to balance a student’s interest in freedom of speech and the school’s interest in regulation. The first of these cases, Tinker v. Des Moines Independent Community School District, established protection of in-school student speech, while the three subsequent cases carved out content-based exceptions. In effect, the Supreme Court has instituted four standards that lower courts may apply in determining the constitutionality of student speech.

1.      Tinker v. Des Moines Independent Community School District

In Tinker, the Court stated that students do not “shed their constitutional rights…at the schoolhouse gate,’” and struck down students’ suspensions for wearing black armbands in school because the school failed to show a “substantial disruption.”FN11Under this standard, a school may regulate student speech to provide a safe and productive learning environment only when the school can show the speech did, or could reasonably be foreseen to, materially and substantially disrupt the work and discipline of the school.FN12

2.      Bethlehem School District v. Fraser

Bethlehem School District v. Fraser established a separate standard restriction on student speech.FN13 The Fraser standard permits schools to prohibit vulgar, lewd, or obscene student speech regardless of whether or not it results in disruption because the Court recognized that schools have an interest in protecting minors from speech that is “inconsistent with the ‘fundamental values’ of public school education.”FN14

3.      Hazelwood School District v. Kuhlmeier

In Hazelwood, the Supreme Court upheld censoring student speech because it was part of a school-sponsored activity “bear[ing] the imprimatur of the school,” meaning the school was effectively being asked to promote student speech inconsistent with its basic educational mission.FN15 Hazelwood’s restriction permits public schools to regulate the content of a school-sponsored activity so long as it is reasonably related to legitimate pedagogical concerns.FN16

4.      Morse v. Frederick

This most recent case establishes a restriction acknowledging that public schools may limit student speech which could “reasonably [be] viewed as promoting illegal drug use” because schools have an important, and perhaps compelling, interest in discouraging such activity.FN17 Morse suggests that a school may limit student speech because of the school’s important interest in prohibiting the content itself.FN18

B.  Applying these Standards: How Courts Approach Internet Student Speech Off-Campus

The absence of direct Supreme Court precedent has resulted in “a ‘state of tumult about the precise scope of First Amendment rights possessed by students.’” and lower courts have adopted three common approaches to address the matter.FN19

1.      The Geography Approach

This approach distinguishes between “on-campus” and “off-campus” speech. Courts will initially determine if the speech occurred on school grounds or during a school-sponsored activity to ensure there is a sufficient nexus for the court to rely on existing school-speech jurisprudence to render a decision.FN20 This approach has produced mixed results. In Mahaffey v. Aldrich, a district court found that a student website entitled “Satan’s webpage” encouraging violence and containing a death list was outside the school’s reach because the speech did not create an actual disruption under the Tinker standard.FN21 Conversely, in J.S. v. Bethlehem Area School District, the Pennsylvania Supreme Court found, under the Tinker standard, a school could punish off-campus speech because “where speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech.”FN22

2.      The Foreseeability Test

Under the foreseeability test, courts justify extending Tinker to “off-campus” speech because of an excerpt in Tinker which states, [C]onduct by the student, in class or out of it, which for any reason- whether it stems from time, place, or type of behavior- materially disrupts the classwork or involves substantial disorder or invasion of the rights of other is, of course, not immunized by the constitutional guarantee of freedom of speech.FN23   Both the Second and Third Circuits have held that a school may regulate Internet student speech if it “poses a reasonably foreseeable risk of disruption.”FN24 The Second Circuit held in Wisniewski v. Board of Education Weedsport Central School District that a student-created image of a pistol firing at a teacher’s head was unprotected speech and the school could regulate it.FN25 In J.S. v. Blue Mountain School District, an eighth grader created a false profile of a school principal suggesting he was a pedophile and sex addict.FN26 The Third Circuit combined the Tinker and Fraser standards to hold that, under a different set of facts and circumstances, the school would be permitted to punish a student without constitutional violation. FN27

3.      The “Standard First” Approach

Under the “standard first” approach, courts apply existing Supreme Court standards to a particular fact pattern and determine if any of these standards permit the school to prohibit the speech.FN28 Using this approach, a district court in Killion v. Franklin Reg. School District held that a student e-mail with offensive remarks about the school’s athletic director was protected speech under Tinker because it did not run afoul of the “substantial disruption” test.FN29

III.      State Legislatures’ Response

The confusion in the judicial branch has generated a need for state legislatures to enact statutes more clearly delineating schools’ scope of authority. Currently, forty-nine states have bullying statutes.FN30 Sixteen of these specifically address the issue of cyberbullying, with seven including “off-campus” cyberbullying as a problem within schools’ purview.FN31 Cyberbullying statues provide courts with a definitive means of addressing Internet student speech. A uniform approach offers a sense of predictability and stability such that all affected parties are on notice of potential liability for violations. A statute permits state and district school boards to craft policies explicitly articulating schools’ authority over the Internet. Furthermore, cyberbullying statutes reduce the possibility of unreasonable infringement of non-student speech because they define the parameters for the balancing of the two interests occurs.

IV.      Kentucky’s Proposed Response: Amendments to KRS 158.148 and KRS 525.070

To date, Kentucky has not adopted a separate cyberbullying statute or included cyberbullying within its statutory definition of “bullying” or “harassment.” The General Assembly has considered the issue since 2007, proposing numerous amendments to existing statutes which have subsequently stalled in committee.FN32 This indicates that the House sees the need to formulate a response to cyberbullying.

A.    2008 Ky. House Bill No. 91

In 2008, Kentucky’s legislature attempted to pass four versions of Ky. House Bill No. 91; the first contained no reference to cyberbullying.FN33 KRS 158.148 stated school codes must prohibit harassment, intimidation, and bullying; these terms were defined narrowly by KRS 158.441 such that communications referred only to “written” communications occurring on-campus, during a school sponsored activity, or on school transportation.FN34 In the context of a cyberbullying case, a court could view this limitation as possibly including or excluding electronic media because the statute is unclear whether “written” communication means only physical communication. The geographic constraint presents the same shortcoming seen in other states because it would prohibit a court from granting schools the authority to regulate off-campus Internet student speech, like cyberbullying. The third and fourth versions contained a notable change. The amended version of KRS 525.080 specifically stated a student would be guilty of harassing communications if he or she sent an electronic communication “which a reasonable person . . . should know would cause the other student to suffer fear of physical harm, intimidation, humiliation, or embarrassment, and which serves not purpose of legitimate communication.”FN35 While it does not explicitly use the term cyberbullying, this marked the first time the Kentucky legislature acknowledged and addressed the issue.

B.     2011 Ky. House Bill No. 370

House Bill 370 proposed shifting some of the language discussed above. The amended version of 158.148 would specifically reference cyberbullying and require schools to include it in their discipline codes.FN36 The House defined cyberbullying as any electronic communication intended to: (1) physically harm a student or their property, (2) substantially interfere with educational opportunities, (3) create an intimidating or threatening education environment, or (4) cause a substantial disruption to the school.FN37 This expansive view of cyberbullying suggests the House was growing increasingly aware of the many ways cyberbullying manifests. Nevertheless, the continued geographical limitation on the school’s authority to address cyberbullying creates the risk that schools will be unable to address a significant amount of Internet student speech and will continue to see the types of disruptions the legislature seeks to avoid.

C.    2012 Ky. House Bill No. 490

House Bill 490 is the most recent set of amendments. “Cyberbullying” is now encapsulated in KRS 158.441’s definition of “bullying”; “electronic acts” is a type of bullying and is defined as “an act committed through the use of a cellular telephone, computer, pager, personal communication device, or other electronic communication device” to inflict mental or physical harm on another student.FN38

V.      Recommendation

The steps taken by the House of Kentucky’s General Assembly are commendable, but these proposals do not provide schools with the necessary tools to reach a significant amount of Internet student speech. The geographic constraint on schools’ authority means administrators will be unable to address an issue until it makes its way onto campus.

A.    Shortcoming of Proposed Kentucky Amendments and the Need to Recognize Cyberbullying as an Important, Perhaps Compelling State Interest

The proposed legislation discussed above, if enacted, means that Kentucky schools will be unable to address a potential disruption until it becomes an actual disruption. This would require administrators to act reactively rather than proactively. Such an approach undermines the notion that schools may act conducive to their primary objectives of safety and education.This limitation may generate more issues than it solves. For example, if schools are permitted to regulate only “on campus” Internet student speech, can schools only monitor speech on school computers or other electronic media? Is it relevant that a student posted a harmful remark during school hours using their cell phone? Would it matter if the school district’s discipline code prohibited the use of privately owned cell phones during regular school hours? The Supreme Court acknowledged schools have an important, if not compelling, interest in deterring drug use amongst students because it is essentially antithetical to schools’ education mission.FN39Similarly, cyberbullying is antithetical to schools’ education mission. Its constant and pervasive nature has a direct impact on schools manifesting in increased academic problems, anxiety, depression, severe isolation, a tendency to carry weapons, and suicide.FN40 Based on the problems caused by cyberbullying, it is imperative that the Kentucky General Assembly succeed in not only passing amended statutes recognizing cyberbullying as an issue in public schools, but also replacing the confining geographic language with a more flexible standard allowing schools to respond preemptively without being overly inclusive.

B.     Vermont and Massachusetts: Models for New Kentucky Legislation

Unlike Kentucky, Vermont and Massachusetts have enacted legislation addressing cyberbullying that extends schools’ authority beyond campus premises.FN41 Vermont’s statute states that bullying includes cyberbullying that “does not occur during the school day on school property, on a school bus, or at a school-sponsored activity and can be shown to pose a clear and substantial interference with another student’s right to access educational programs.” Massachusetts’s legislation is similar.FN42 The Massachusetts legislation permits schools to regulate activity occurring off-campus “if the bullying creates a hostile environment at school for the victim, infringes on the rights of the victim at school or materially and substantially disrupts the education process or the orderly operation of a school.”FN43 The language of these statutes is similar to the foreseeability approach recognized by some courts because both permit school regulation when there is still the possibility of preventing a substantial disruption, thus preserving the school environment.FN44 Vermont and Massachusetts explicitly define the student actions which are considered cyberbullying, much like the definitions seen in Ky. House Bill No. 370.FN45 This specificity provides schools and courts with a clearer understanding of what speech the statute governs. Additionally, both states require local school districts to develop procedures to address cyberbullying including the response and investigation of possible cyberbullying, to define disciplinary actions for offenders, and to develop programs to raise awareness about cyberbullying.FN46 These requirements safeguard against overreach by public schools and demonstrate that it is possible for a state to enact cyberbullying legislation extending beyond the school’s physical parameters while still not trampling on freedom of speech.

C.    Proposed Kentucky Legislation for Online Student Speech

The Kentucky legislature’s primary focus should be recognizing cyberbullying as a distinct, unique issue in public schools. A good start would be combining the approaches taken by Massachusetts and Vermont to establish a separate definition for cyberbullying under KRS 158.441 because that combination would signal the General Assembly’s awareness of cyberbullying and would be consistent with the unique characteristics of cyberbullying. The current definition of cyberbullying in KRS 158.441 is susceptible to overreach by public schools because the only qualification on what constitutes actionable bullying is that it cause mental or physical harm.FN47 A school, for example, could determine a student was in violation if the victimized student claims to have been embarrassed or reduced to tears. A standard such easily manipulated would be improper because schools would have virtually unchecked policing powers. A better definition of cyberbullying in KRS 158.441 would read as follows: “Cyberbullying” is bullying through the use of technology or any electronic communication including, but not limited to, the transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted by, an electronic medium including those which the creator assumes another person’s identity or knowingly impersonates another as the author of posted content or messages. Additionally, it includes the distribution by electronic means of a communication to more than one person or the posting of material on an electronic medium that may be accessed by one or more persons. A student will be determined to have committed an act of cyberbullying against another student if the following conditions are met. The act: (1) is repeated over time; (2) is intended to ridicule, humiliate, or intimidate the victim; and (3) occurs during the school day on school property, on a school bus, or at a school-sponsored activity, or before or after the school day on a school bus or at a school-sponsored activity. (4) does not occur during one of the on-campus activities discussed above, but can be shown to pose a clear and substantial interference with another student’s right to access educational programs.FN48 This definition has several benefits. First, it narrows the scope of Internet speech subject to regulation, reducing potential infringement of constitutionally protected speech. Second, it recognizes the unique nature of student Internet speech. Third, it outlines a clear analytical framework for Kentucky courts to use in future cyberbullying lawsuits, resulting in increased predictability. Fourth, it puts all potential parties on notice of the types of Internet speech consider within the school’s purview. Last, this construction of cyberbullying is consistent with the standard articulated in Tinker. While Kentucky courts would be recognizing a school’s authority “beyond the schoolhouse gate,” this authority would stem from the likelihood the speech will negatively impact students within the school environment. Thus, widening the scope of school-regulated speech would permit the Kentucky legislature and courts to continue to respect the sanctity of the schoolhouse gate.

Conclusion

The Internet has radically changed the framework for student speech analysis causing lower courts to respond in varied, and sometimes surprising, ways. Previously, off-campus student speech was distinctly beyond the schoolhouse gate and free from constraint. This spatial distinction has declined with the prevalence and pervasiveness of the Internet, which has blurred the borders between many areas of regulation. While certainly not all off-campus speech is subject to schools’ authority, those that would create a substantial disruption should be subject to school regulation.FN49 In order to navigate the challenges presented in addressing off-campus Internet student speech, Kentucky’s General Assembly needs to enact an amended version of statutes 158.148 and 158.441. The geographical limitation contained within 158.148 needs to be replaced with more expansive language, similar to Massachusetts’ and Vermont’s statutes.FN50 Additionally, 158.441 needs to provide a definition of cyberbullying. Such changes would recognize that a geographical distinction is inadequate for schools to provide a safe and productive learning environment. Without these changes, courts will be left with little to base their decisions on except a “very tricky calculus,”FN51which will not produce the outcomes necessary to prevent future victims of cyberbullying.

FN1. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

FN2. New York 14-Year-Old Kameron Jacobsen Bullied to Death, CBS New York, http://newyork.cbsloc al.com/2011/09/15/exclusive-new-york-14-year-old-bullied-to-death/ (last visited June 3, 2013).

FN3. Id.; Parents Speak Out on Bullying After Son’s Death, CBS New York, http://www.cbsnews.com/2100-500172_162-20106690.html (last visited June 3, 2013).

FN4. New York 14-Year Old Kameron Jacobsen Bullied to Death, supra note 2.

FN5. Rachael was a Bullitt County student when she committed suicide after receiving threatening anonymous e-mails from classmates. Janelle McDonald, Family of Teen who Took Her Own Life Pushing Lawmakers for Anti-Bullying Ordinance, Wave3 News, http://www.wave3.com/story/6029598/family-of-teen-who-took-her-own-life-pushing-lawmakers-for-anti-bullying-ordinance (last visited June 3, 2013) (stating Rachael received an e-mail saying, “ ‘[I am not] going to put [you] in the hospital, [I’m] going to put [you] in the morgue.’”).

FN6. Katherine Ng, Digital Dilemmas: Responding to Cyberbullying in Nova Scotia, 22 EDUC. & L.J. 63, 65-66 (2012); see also Gwenn Schrugin O’Keeffe, Kathleen Clarke-Pearson, and the Council on Communications and Media, Clinical Report: The Impact of Social Media on Children, Adolescents, and Families, 127 Pediatrics 800, 800-01 (2011). (stating the internet has assisted in self-identification by adolescents).

FN7. Ng, supra note 6 at 68; see also Sameer Hinduja and Justin W. Patchin, Cyberbullying Research Summary: Cyberbullying and Strain, 1, 1 http://www.cyberbullying.us/cyberbullying_ and_strain_research_fact_sheet.pdf (last visited June 3, 2013).

FN8. Ng, supra note 6 at 69; see also Hinduja and Patchin, supra note 7 at 1.

FN9. Ng, supra note 6 at 70; Allison Belnap, Comment, Tinker at a Breaking Point: Why the Specter of Cyberbullying Cannot Excuse Impermissible Public School Regulation of Off-Campus Student Speech, BYU L. Rev. 501, 501 (2011) (quoting Jeff Lieberman, Rutgers Student’s Suicide Prompts privacy, Cyber-Bullying Debates (PBS NewsHour broadcast Oct. 1, 2010), transcript available at http://www.pbs.org/newshour/bb/social_issues/july-dec10/rutgers1_10-01.html); see also Hinduja and Patchin, supra note 7 at 1.

FN10. Ng, supra note 6 at 68.

FN11. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 514 (1969).

FN12. Id. at 514. (“As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”).

FN13. See Bethlehem Sch. Dist. v. Fraser, 478 U.S. 675, 685-86 (1986). The Court later stated in a footnote the Fraser standard is separate and distinct from Tinker. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271, n. 4. (“The decision in Fraser rested on the ‘vulgar,’ ‘lewd,’ and ‘plainly offensive’ character if a speech delivered at an official school assembly rather than on any propensity of the speech to ‘materially disrup[t] class work or involv[e] substantial disorder or invasion of the rights of others.”) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)).

FN14. Fraser, 478 U.S. at 683, 685-86.

FN15. Hazelwood, 484 U.S. at 281.

FN16. Id. at 273.

FN17. Morse v. Frederick, 484 U.S. 393, 403 (2007).

FN18. See Caitlin May, Comment, “Internet-Savvy Students” and Bewildered Educators: Student Internet Speech is Creating New Legal Issues for the Educational Community, 58 Cath. U. L. Rev. 1105, 1111 (2009) (analyzing the Court’s rationale in Hazelwood); Harriet A. Hoder, Note, Supervising Cyberspace: A Simple Threshold for Public School Jurisdiction over Student’s Online Activity, 50 B.C. L. Rev. 1563, 1574-75 (2009).

FN19. Stephanie Klupinski, Note, Getting Past the Schoolhouse Gate: Rethinking Student Speech in the Digital Age, 71 Ohio St. L.J. 611, 625 (2010) (quoting Robert D. Richards & Clay Calvert, Columbine Fallout: The Long-Term Effects on Free Expression Take Hold in Public Schools, 83 B.U. L. Rev. 1089, 1139 (2003)); May, supra note 18 at 1128-31.

FN20. May, supra note 18 at 1128; Hoder, supra note 18 at 1583-85; see also Sandy S. Li, The Need for a New, Uniform Standard: The Continued Threat of Internet-Related Student Speech, 26 Loy. L.A. Ent. L. Rev. 65, 78; Belnap, supra note 9, at 510, Klupinski, supra note 19, at 627.

FN21. Mahaffey ex rel. Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 782-84 (E.D. Mich. 2002) (“In the case at bar, there is no evidence that the website interfered with the work of the school or that any other student's rights were impinged.”).

FN22. J.S. v. Bethlehem Area Sch. Dist., 807 A. 2d 847, 865 (Pa. 2002).

FN23. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969) (emphasis added).

FN24. Wisniewski v. Bd. of Educ. Weedsport Cent. Sch. Dist., 494 F.3d. 34, 38 (2d Cir. 2007); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011).

FN25. Wisniewski, 494 F.3d at 36-40.

FN26. Blue Mountain, 650 F.3d at 920.

FN27. Id. at 928, 932-33 (holding J.S.’s suspension was a violation of the First Amendment because it did not cause a substantial disruption in the school under the Tinker standard).

FN28. Klupinski, supra note 19 at 638-39.

FN29. Killion v. Franklin Reg. Sch. Dist., 136 F. Supp. 2d 446, 455 (W.D. Penn. 2001) (“Although the intended audience was undoubtedly connected to Franklin Regional High School, the absence of threats or actual disruption lead us to conclude that Paul's suspension was improper.”).

FN30. See Ala. Code §16-28-3.1(b)(6) (2013); Alaska Stat. Ann. §14.33.200 (2013); Ariz. Rev. Stat. Ann. §15-341(37) (2013); Ark. Code Ann. §6-18-514(b)(2) (2013); Cal. Educ. Code §32261(d) (2013); Colo. Rev. Stat. §22-32-109.1(1)(b) (2013); Conn. Gen. Stat. §10-222d(a)(1) (2013); Del. Code Ann. tit. 14 §4112D(a) (2013); Fla. Stat. §1006.147(a) (2013); Ga. Code §20-2-751.4 (2013); Haw. Code R. § 8-19-2 (2013); Idaho Code Ann. §18-917A(2) (2013); 105 Ill. Comp. Stat. 5/27-23.7(b) (2013); Ind. Code §20-33-8-0.2 (2013); Iowa Code §280.28(2)(b) (2013); Kan. Stat. Ann. §72-8256(a)(1) (2013); Ky. Rev. Stat. Ann. §158.183(1)-(2) (2013); La. Rev. Stat. Ann. §17:416(d) (2013); Me. Rev. Stat. tit. 20-A(2)(B) §6554 (2013); Md. Code Ann. Education §7-424.3(a) (2013); Mass. Gen. Laws ch. 71, § 37O(a) (2013); Mich. Comp. Laws §380.1310b(8)b (2013); Minn. Stat. §121A.0695 (2013); Miss. Code Ann. §37-11-67(1) (2013); Mo. Rev. Stat. § 160.775(2) (2013); Neb. Rev. Stat. § 79-2, 137(2) (2013); Nev. Rev. Stat. §388.135 (2013); N.H. Rev. Stat. Ann. §193-F:3(I) (2013); N.J. Stat. Ann. §18A:37-14 (2013); N.M. Stat. Ann. §6.12.7 (2013); N.Y. Educ. Law §11(7) (McKinney 2013); N.C. Gen. Stat. §115C-407.15(a) (2013); N.D. Cent. Code §15.1-19-17(1) (2013); Ohio Rev. Code Ann. §3313.666(A)(2) (2013); 2013 Okla. Sess. Laws 311; Or. Rev. Stat. §339.351(2) (2013); 24 Pa. Cons. Stat. §13-1301.1-A(e) (2013); R.I. Gen. Laws §16-21-33(a) (2013); S.C. Code Ann. § 59-73-120(1) (2013); S.D. Codified Laws §13-32-15 (2013); Tenn. Code Ann. §49-6-1015(3) (2013); Tex. Educ. Code Ann. §37.0832(a) (2013); Utah Code Ann. §53A-11a-201 (2013); Vt. Stat. Ann. tit. 16, § 11(26), (32) (2013); Va. Code Ann. §22.1-279.6 (2013); Wash. Rev. Code Ann. §28A.300.285(2) (2013); W. Va. Code Ann. §18-2C-2(a) (2013); Wis. Stat. §118.46(1) (2013); Wyo. Stat. Ann. §21-4-312(a) (2013).

FN31. Statutes specifically referencing cyberbullying include: Arkansas, California, Connecticut, Hawaii, Kansas, Louisiana, Massachusetts, Missouri, Nevada, New Hampshire, New York, North Carolina, Oregon, Tennessee, Utah, and Washington. The following states have permitted schools to regulate and punish off campus behavior: Arkansas, Connecticut, Massachusetts, New Hampshire, New York, Tennessee, and Vermont. See Ark. Code Ann. §5-71-217(c) (West  (2013); Cal. Educ. Code §32261 (West 2013); Conn. Gen. Stat. Ann. §10-222d(a)(6), (b)(15) (West 2013); Haw. Code R. § 8-19-2 (2013); Kan. Stat. Ann. §72-8256(a)(2)-(3), (c) (West 2013); La. Rev. Stat. Ann. §40.7 (2013); Mass. Gen. Laws Ann. ch. 71, § 37O(b) (West 2013); Mo. Ann Rev. Stat. § 160.775 (West 2013); Nev. Rev. Stat. Ann. §388.135(7) (West 2013); N.H. Rev. Stat. Ann. §193-F:3(V) (2013); N.Y. Educ. Law §11(7) (McKinney 2013); N.C. Gen. Stat. Ann. §115C-407.15(a) (West 2013); Or. Rev. Stat. Ann. §339.351 (West 2013); Tenn. Code Ann. §49-6-1015 (West 2013); Utah Code Ann. §53A-11a-201(1)-(2) (West 2013); Wash. Rev. Code Ann. §28A.300.285 (West 2013).

FN32. H.B. 91, 2007 H.R., Reg. Sess. (Ky. Nov. 26, 2007); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Jan. 8, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Mar. 19, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Apr. 15, 2008); H.B. 370, 2011 H.R., Reg. Sess. (Ky. 2011); H.B. 336, 2012 H.R., Reg. Sess. (Ky. 2012); H.B. 490, 2012 H.R., Reg. Sess. (Ky. 2012).

FN33. H.B. 91, 2007 H.R., Reg. Sess. (Ky. Nov. 26, 2007); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Jan. 8, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Mar. 19,2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Apr. 15, 2008).

FN34. H.B. 91, 2007 H.R., Reg. Sess. (Ky. Nov. 26,2007) (“‘Harassment, intimidation, or bullying’ means a repeated verbal, nonverbal, or written communication transmitted; repeated physical acts committed; or any other repeat behavior committed by a student against another student on school premises, on school-sponsored transportation, or at a school-sponsored event…”).

FN35. H.B. 91, 2008 H.R., Reg. Sess. (Ky. Mar. 19, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Apr. 15, 2008).

FN36. H.B. 370, 2011 H.R., Reg. Sess. (Ky. 2011) (“Amend KRS 158.148 to require the discipline code to prohibit harassment, intimidation, bullying, or cyberbullying against students…”) (emphasis added).

FN. 37.Id.

FN. 38. H.B. 490, 2012 H.R., Reg. Sess. (Ky. 2012).

FN 39. Morse v. Frederick, 551 U.S. 393, 407 (2007) (stating that prior Supreme Court cases have recognized the dangers of illegal drug use and schools’ interest in protecting students from the dangers of drug abuse).

FN. 40. See Ng, supra note 6 at 70; see also Natasha Rose Manuel, Cyber-bullying: Its Recent Emergence and Needed Legislation to Protect Adolescent Victims, 13 Loy. J. Pub. Int. L. 219, 225-28 (2011), Hoder, supra note 18 at 1566.

FN. 41. Mass. Gen. Laws. ch. 71, § 37O(b) (2013); Vt. Stat. Ann. tit. 16, § 11(a)(32) (2013).

FN. 42. Tit. 16, § 11(a)(32)(C)(ii) (emphasis added); ch. 71, § 37O(b).

FN. 43. Ch. 71, § 37O(b).

FN. 44. Compare ch. 71, § 37O(b) and tit. 16, § 11(a)(32)(C))(ii) with Wisniewski v. Bd. of Educ. Weedsport Cent. Sch. Dist., 494 F.3d. 34, 38-39 (2d Cir. 2007) and J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915, 932-33 (3d Cir. 2009).

FN. 45. Compare H.B. 336,  H.R., Reg. Sess. (Ky. 2012) and H.B. 370, H.R., Reg. Sess. (Ky. 2012) with ch. 71, § 370 and tit. 16, § 11.

FN. 46. Ch. 71, § 37O(c)-(h); tit. 16, § 11.

FN. 47. KRS 158. 441 states “‘Harassment, intimidation, or bullying means: Any intentional written, verbal, electronic, physical act that a student has exhibited toward another student more than once that causes mental or physical harm to the other student.” H.B. 490, H.R., Reg. Sess. (Ky. 2012) (emphasis added).

FN. 48. This proposed statutory construction is based on the legislation in Kentucky, Massachusetts, and Vermont. See H.B. 370, H.R., Reg. Sess. (Ky. 2011); ch. 71 § 37O(a)-(b); tit. 16, § 11(a)(32).

FN. 49. May, supra note 18 at 1141, Li, supra note 20 at 87-91, Klupinski, supra note 20 at 643-50.

FN. 50. Compare H.B. 336, H.R., Reg. Sess. (Ky. 2012) and H.B. 490, H.R., Reg. Sess. (Ky. 2012) with ch. 71, § 37O(b) and tit. 16, § 11(a)(32)(C)(ii).

FN. 51 May, supra note 18 at 1141. (quoting Victoria Kim, Suit Blends Internet, Free Speech, School, L.A. Times, Aug. 3, 2008, at B1).