PREAMBLE

We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution.

NOTES TO DECISIONS

1.Purpose.

The Constitution is not a technical instrument and should not be so construed as to defeat substantial purpose of its adoption. Anderson v. Wayne County, 310 Ky. 597 , 221 S.W.2d 429, 1949 Ky. LEXIS 970 ( Ky. 1949 ).

In construing constitutional provisions, the courts will look to history of the times and the state of existing things to ascertain intention of framers of the Constitution and people adopting it, and a practical interpretation will be given to the end that the plainly manifested purpose of those who created the Constitution, or its amendments may be carried out. Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

2.Construction.

No part of Constitution should be construed so as to defeat its substantial purpose or the reasonable intent of the people in adopting it. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

Basic rule is to interpret constitutional provision according to what was said and not what might have been said, and according to what was included and not what might have been included. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

Courts ought not to attribute as intention when there was none, as, for example, concerning aeroplanes, automobiles, radios, and many other familiar things of today. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

When words used express a meaning clearly, distinctly, and completely, there is no occasion for recourse to implication or conjecture by which words are interpolated. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

While intentions expressed or fairly to be inferred are to be respected and preserved, court ought not to press too rigid an interpretation or application of a provision in which the intention is unclear or may only be surmised where it threatens public welfare under changed conditions unforeseen. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

All provisions bearing on particular subject are to be brought into view and so interpreted as to effectuate purposes of all provisions. Runyon v. Smith, 308 Ky. 73 , 212 S.W.2d 521, 1948 Ky. LEXIS 843 ( Ky. 1948 ).

No one provision of Constitution is to be separated from all others and considered alone. Runyon v. Smith, 308 Ky. 73 , 212 S.W.2d 521, 1948 Ky. LEXIS 843 ( Ky. 1948 ).

In the enactment of so enduring, dignified, and formal a document as that of a Constitution, the basic law of self-governing people, it is not to be assumed that any words written into the instrument were there written into the instrument were there written lightly, or without some definite and precise purpose. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

When the intent and meaning of the Constitution seems to be clear from the document itself, it is unnecessary to search extraneous authority for the intent. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

Where it is possible, the Constitution should be construed liberally, and doubtful questions ought to be resolved in favor of the freedom of the living generation to govern its own affairs in light of modern circumstances. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ).

3.Application.

The construction is concerned with substance and not with form and its framers did not intend to forbid a common sense application of its provisions. Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

4.Supreme Law.

The Kentucky Constitution is, in matters of state law, the supreme law of this Commonwealth to which all acts of the legislature, the judiciary and any government agent are subordinate. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

5.Amendments.

When an amendment is made to a provision in the Constitution to which a certain construction has been given, it will be presumed that its unchanged portions have the same meaning formerly given it by legislative or judicial construction. Hodgkin v. Kentucky Chamber of Commerce, 246 S.W.2d 1014, 1952 Ky. LEXIS 657 ( Ky. 1952 ).

Neither legislature, nor people, nor both, can short-circuit Constitution and when question is raised in proper manner and at proper time validity of proposed change is judicial question. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

6.Constitutional Limitations.

Liberal construction is to be given to constitutional limitations, with reasonable doubts being resolved in favor of validity. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

7.Constitutional Presumptions.

Wherever language admits a doubt, it is presumed that it was intended to be in accordance with generally recognized rules and principles of public policy. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

8.Constitutional Rights.

A denial of a constitutional right will not render a judgment void if court had jurisdiction of person and offense. Moss v. Jones, 342 S.W.2d 522, 1961 Ky. LEXIS 385 ( Ky. 1961 ).

Rights of states may be waived by action thereto of their officials. Jones v. Rayborn, 346 S.W.2d 743, 1961 Ky. LEXIS 329 ( Ky. 1961 ), limited, Baker v. Commonwealth, 378 S.W.2d 616, 1964 Ky. LEXIS 191 ( Ky. 1964 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Denial of constitutional rights does not invalidate judgment of conviction where court which tried case had jurisdiction. Decker v. Russell, 357 S.W.2d 886, 1962 Ky. LEXIS 161 ( Ky. 1962 ).

9.Constitutionally Conferred Powers.

Where power is conferred by Constitution it must be exercised as directed by law. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

10.Implied Provisions.

What is implied is as much a part of the instrument as what is expressed. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

11.Legislative Acts.

All doubt in respect to constitutionality of legislative enactments shall be resolved in favor of constitutionality. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

The general rule, where the constitutionality of legislation is to be ascertained by the courts, is that any reasonable doubt must be resolved in favor of the legislative action, and the act sustained. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

Where it is not clear that the Constitution had been invaded, the courts will rarely, if ever, interfere to arrest the operation of legislative enactments. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

12.Mandatory Provisions.

Constitutional provisions of Constitution are not mandatory unless by express language or necessary implication a different intention is manifest. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

13.Municipalities.

Generally in the absence of a constitutional provision safeguarding it to them, municipalities have no right to self-government beyond the legislative control of the Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

14.Public Policy.

It is only where the Constitution and statutes are silent on a subject that courts have an independent right to declare the public policy. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

The public policy of a state is to be found first in the Constitution, second in the acts of the legislature, and third in its judicial decisions. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

Where the Constitution is silent, the public policy of the state is to be determined by the legislature on subjects on which it has seen fit to speak. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

15.Relation to Old Constitution.

The 1891 Constitution was, in every sense of the word, a new Constitution; while many of the threads of the old Constitution were retained in the new, yet it was essentially a new instrument. Stone v. Pryor, 103 Ky. 645 , 45 S.W. 1053, 20 Ky. L. Rptr. 312 , 1898 Ky. LEXIS 112 ( Ky. 1898 ).

16.Restrictions in Making.

The only restriction upon the people in making the 1891 Constitution was that it should be republican in form and not in conflict with the Constitution of the United States. Stone v. Pryor, 103 Ky. 645 , 45 S.W. 1053, 20 Ky. L. Rptr. 312 , 1898 Ky. LEXIS 112 ( Ky. 1898 ).

Cited:

Hopkins County v. St. Bernard Coal Co., 114 Ky. 153 , 24 Ky. L. Rptr. 942 , 70 S.W. 289, 1902 Ky. LEXIS 142 ( Ky. 1902 ).

BILL OF RIGHTS

That the great and essential principles of liberty and free government may be recognized and established, we declare that:

§ 1. Rights of life, liberty, worship, pursuit of safety and happiness, free speech, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms.

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties.

Second: The right of worshipping Almighty God according to the dictates of their consciences.

Third: The right of seeking and pursuing their safety and happiness.

Fourth: The right of freely communicating their thoughts and opinions.

Fifth: The right of acquiring and protecting property.

Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

NOTES TO DECISIONS

Analysis

1.In General.

Law-making body may not transgress inhibitions contained in bill of rights and courts have power to declare laws in violation thereof to be illegal and void. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

Right of acquiring, possessing and protecting property and of pursuing one’s safety and happiness is guaranteed by this section. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

Kentucky did not recognize a common law cause of action for retaliatory failure to hire; the public-policy-based exceptions to the at-will employment doctrine were narrow, no support for such a claim was provided by the First Amendment to the United States Constitution, Ky. Const., § 1, or Ky. Const., § 14, and a teacher’s proposed cause of action for an alleged retaliatory failure to hire did not meet the criteria for a judicial exception to the employment-at-will doctrine. Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 2005 Ky. App. LEXIS 231 (Ky. Ct. App. 2005).

2.Applicability
3.—Civil Defendants.

In a termination of parental rights’ appeal, a counsel for a mother and a counsel for a father requested an appellate court to review the record for prejudicial error pursuant to Anders, in which the U.S. Supreme Court referred only to criminal cases to which the Sixth Amendment right to counsel applied and did not extend its decision to civil cases. Because the applicability of Anders to civil cases had not been properly brought to the attention of the appellate court and because the briefs filed were not accompanied by motions to withdraw, the appellate court declined to consider them as Anders briefs or to address whether Anders might be invoked in a termination of parental rights case. C.R.G. v. Cabinet for Health & Fam. Servs., 297 S.W.3d 914, 2009 Ky. App. LEXIS 215 (Ky. Ct. App. 2009).

4.Libel.

Newspaper articles constituting libel were not privileged under subsection (6) of this section. Coel v. Commonwealth, 222 Ky. 350 , 300 S.W. 907, 1927 Ky. LEXIS 937 ( Ky. 1927 ).

Common-law crime of criminal libel analyzed and held not so vague, indefinite or uncertain as to violate the due process or free speech provisions of the Constitution. Ashton v. Kentucky, 384 U.S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469, 1966 U.S. LEXIS 1644 (U.S. 1966).

5.Vaccinations.

Compulsory vaccination of school children for smallpox does not violate constitutional guarantees. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

Law requiring that parents, guardians, trustees and committees have children under their care vaccinated did not violate the constitutional guarantees of objecting parents as against their contention that their religious and conscientious beliefs prevented such a practice. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

6.Land Use Control.

So long as ordinances for the protection of property are reasonable, a citizen may not complain even though his unlimited and unrestricted use and enjoyment of his own property is to some extent abridged or denied by reason thereof, since the use and enjoyment of property guaranteed by the state and federal Constitutions mean such use and enjoyment as will not unnecessarily endanger or destroy the property of others. O'Bryan v. Highland Apartment Co., 128 Ky. 282 , 108 S.W. 257, 33 Ky. L. Rptr. 349 , 1908 Ky. LEXIS 54 ( Ky. 1908 ).

Mere ownership of property which could be utilized for the conduct of a lawful business does not constitute a right to so utilize it which cannot be terminated by a zoning ordinance. Darlington v. Board of Councilmen, 282 Ky. 778 , 140 S.W.2d 392, 1940 Ky. LEXIS 258 ( Ky. 1940 ).

Summary judgment for a city on its claim for relief against property owners relating to an access point to the owners’ property was error because the notice to the owners that the zoning administrator was revoking the temporary access did not set out the reasons for the decision or inform the owners of their right to appeal to the board of adjustment, did not comport with the minimum requirements of due process, did not give any basis for meaningful appellate review by the board, and left the owners to guess the appropriate course of action; since the notice was so defective, the owners’ right to administrative review was not extinguished. Godman v. City of Fort Wright, 234 S.W.3d 362, 2007 Ky. App. LEXIS 317 (Ky. Ct. App. 2007).

Where property owners operated a bed and breakfast, tearoom, and catering service as an accessory use and the board of adjustment imposed restrictions pursuant to an amended ordinance, since the board did not retain the authority to reasonably restrict the accessory uses of the property that existed prior to the adoption of the amended ordinance, the restrictions on the uses of the property as a tearoom and the catering of special events were illegally imposed. Greater Harrodsburg/Mercer County Planning & Zoning Comm'n v. Romero, 250 S.W.3d 355, 2008 Ky. App. LEXIS 92 (Ky. Ct. App. 2008).

7.Traffic Regulations.

Evidence that sound trucks were intended to attract attention of pedestrians and motorists, and that attention was attracted with the result that the safety of motorists and pedestrians was endangered, and a hazard created, justified ordinance provision prohibiting operation in congested traffic area. Brachey v. Maupin, 277 Ky. 467 , 126 S.W.2d 881, 1939 Ky. LEXIS 683 ( Ky. 1939 ).

Municipal ordinance prohibiting operation of sound trucks within a designated area, consisting of the congested traffic area, at any time, and within any place in the city between 6 p.m. and 9 a.m., was constitutional. Brachey v. Maupin, 277 Ky. 467 , 126 S.W.2d 881, 1939 Ky. LEXIS 683 ( Ky. 1939 ).

8.Criminal Defendants.

The right to be heard by himself and counsel is an inherent and inalienable right that no defendant should be denied. Chenault v. Commonwealth, 282 Ky. 453 , 138 S.W.2d 969, 1940 Ky. LEXIS 189 ( Ky. 1940 ).

A criminal, however shocking his crime, is not to answer for it with forfeiture of life or liberty till tried and convicted in conformity with law. Powell v. Commonwealth, 346 S.W.2d 731, 1961 Ky. LEXIS 327 ( Ky. 1961 ).

Defendant did not preserve his insufficiency-of-the-evidence allegation for appellate review as he never raised any arguments with respect to the firearm enhancement charge in either of his motions for a directed verdict of acquittal; however, the appellate court reviewed the claim since a conviction based on insufficient evidence would deprive defendant of substantial due process rights. Lunsford v. Commonwealth, 139 S.W.3d 926, 2004 Ky. App. LEXIS 204 (Ky. Ct. App. 2004).

Trial court did not clearly err in finding that defendant had made a knowing, intelligent, and voluntary waiver of the right to counsel, as the proceedings before the trial court met all the requirements of the Sixth Amendment and Ky. Const. § 1. Defendant made an unequivocal request to dismiss defendant’s trial counsel and proceed pro se and the trial court extensively questioned defendant about defendant’s desire for self-representation. Goods v. Commonwealth, 239 S.W.3d 580, 2007 Ky. App. LEXIS 418 (Ky. Ct. App. 2007).

In a case where an inmate sought a declaration that Kentucky’s self-defense statutes, as they existed at the time of his 1991 trial, were unconstitutional under Ky. Const. § 1, relief was not appropriate because no actual controversy was pled. The constitutionality of the self-defense statutes had no foreseeable application to the inmate, who was under six death sentences. Foley v. Commonwealth, 306 S.W.3d 28, 2010 Ky. LEXIS 53 ( Ky. 2010 ).

9.Probable Cause.

This section should afford some protection against unjustified or unreasonable stopping of person by police, and in such case any evidence obtained as result of such stopping is illegally obtained and inadmissible. Commonwealth v. Robey, 337 S.W.2d 34, 1960 Ky. LEXIS 361 ( Ky. 1960 ), overruled, Pennington v. Commonwealth, 429 S.W.2d 364, 1967 Ky. LEXIS 527 ( Ky. 1967 ).

In the search of an automobile and discovery of incriminating material upon arrest for a traffic violation, the crucial question to be determined by the trial court upon evidence out of the hearing of the jury is whether or not probable caused existed for the initial stopping, and this should be done without regard to the pendency or the disposition of the initial offense. Pennington v. Commonwealth, 429 S.W.2d 364, 1967 Ky. LEXIS 527 ( Ky. 1967 ).

10.Injunctions.

The right to carry on a business and to fulfill contracts made in the course thereof is a property right, falling within the constitutional guaranty of the right to acquire and protect property, which injunction may issue to protect. Underhill v. Murphy, 117 Ky. 640 , 78 S.W. 482, 25 Ky. L. Rptr. 1731 , 1904 Ky. LEXIS 227 ( Ky. 1904 ).

Speaker was entitled to injunction against contemplated city and police interference with his speech where it was not objectionable and his audience was not unlawfully assembled. Louisville v. Lougher, 209 Ky. 299 , 272 S.W. 748, 1925 Ky. LEXIS 486 ( Ky. 1925 ).

11.Sunday Closing Laws.

Sunday closing law (KRS 436.160 ) did not violate religious freedom or right to worship granted in this section, as no religion was affirmatively preferred under such law. Commonwealth v. Arlan's Dep't Store, 357 S.W.2d 708, 1962 Ky. LEXIS 140 ( Ky. 1962 ).

Since the regulation of poolrooms is an authorized exercise of police power, the prohibition of subsection (5) of KRS 436.160 against allowing poolroom operators to open for business on Sunday is not a violation of the equal protection of the laws. Walters v. Bindner, 435 S.W.2d 464, 1968 Ky. LEXIS 210 ( Ky. 1968 ) (decision prior to 1972 amendment to KRS 436.160 ).

12.Price Regulations.

It was constitutional for legislature to at least fix minimum prices for all commodities and services dealt in, rendered, produced, or furnished by particular business whether or not such business was one affected with a public interest. Moore v. Northern Kentucky Independent Food Dealers Ass'n, 286 Ky. 24 , 149 S.W.2d 755, 1941 Ky. LEXIS 211 ( Ky. 1941 ).

Law which prohibited the sale of commodities by retail to individual customers at prices below cost, in order to injure creditors and destroy competition, did not violate this section. Moore v. Northern Kentucky Independent Food Dealers Ass'n, 286 Ky. 24 , 149 S.W.2d 755, 1941 Ky. LEXIS 211 ( Ky. 1941 ).

KRS 244.080 , 244.380 (now repealed), 244.390 (now repealed), 244.400 (now repealed), 244.410 (now repealed) and 244.470 (now repealed), concerning sale of alcoholic beverages, provide for a system of resale pricing that conflicts with the Sherman Antitrust Act (15 USCS § 1 et seq.) as that act has come to be construed by the United States Supreme Court, but do not violate this section or Const., § 2. Alcoholic Beverage Control Bd. v. Taylor Drug Stores, Inc., 635 S.W.2d 319, 1982 Ky. LEXIS 269 ( Ky. 1982 ).

A statute involving the regulation of economic matters comports with both state and federal equal protection if the law is rationally related to a legitimate government objective; the constitutionality of a statute will be upheld if its classification is not arbitrary, or if it is founded upon any substantial distinction suggesting the necessity or propriety of such legislation. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

13.Eminent Domain.

Under this section and Const., §§ 13 and 242, highway commission’s contractor was liable for taking plaintiff’s property before plaintiff received payment therefor, notwithstanding compensation proceedings were pending. Terhune v. Gorham, 225 Ky. 249 , 8 S.W.2d 431, 1928 Ky. LEXIS 785 ( Ky. 1928 ).

When a city and a corporation entered into an agreed judgment following a condemnation suit, whereby the corporation deeded to the city, for construction of sewers, certain land including a stream which was being used by the corporation for sewerage purposes, and, in part consideration thereof, the city agreed to allow the corporation, its successors and assigns free use of sewers, a subsequently created metropolitan sewer district which took over city sewer system could not, by exercise of the police power of the city, abrogate the judgment and force successors of the corporation to pay for use of the sewers without just compensation, for to permit such abrogation and payment would be taking property without compensation and destroying vested rights. Bond Bros. v. Louisville & Jefferson County Metropolitan Sewer Dist., 307 Ky. 689 , 211 S.W.2d 867, 1948 Ky. LEXIS 805 ( Ky. 1948 ), cert. denied, 339 U.S. 943, 70 S. Ct. 796, 94 L. Ed. 1358, 1950 U.S. LEXIS 2086 (U.S. 1950).

14.— Dedication Requirements.

So long as the taking of a portion of land, whether on the exterior or from the interior, is based on the reasonably anticipated burdens to be caused by the development, making dedication requirements a condition precedent to plat approval is not an unconstitutional taking of land without just compensation. Lampton v. Pinaire, 610 S.W.2d 915, 1980 Ky. App. LEXIS 408 (Ky. Ct. App. 1980).

15.Racial Discrimination.

The right to teach white and Negro children in a private school at the same time and place is not a property right. Berea College v. Commonwealth, 123 Ky. 209 , 94 S.W. 623, 29 Ky. L. Rptr. 284 , 1906 Ky. LEXIS 139 ( Ky. 1906 ), aff'd, 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81, 1908 U.S. LEXIS 1526 (U.S. 1908).

Antidiscrimination ordinance prohibiting the refusal to serve food to Negroes by restaurant owner was not violative of constitutional provisions guaranteeing property or contract rights. Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ).

16.Unions.

Men engaged in lawful strike have lawful right to assemble and address their fellowmen in peaceful manner. Alsbrook v. Commonwealth, 243 Ky. 814 , 50 S.W.2d 22, 1932 Ky. LEXIS 204 ( Ky. 1932 ).

The right to earn a living is “property” within concept of constitutional rights, and a trade union in service of its own interests may not deprive a person of such constitutional right. Hill v. United Public Workers Union, 314 Ky. 791 , 236 S.W.2d 887, 1950 Ky. LEXIS 1101 ( Ky. 1950 ).

Injunction prohibiting union members from congregating in large numbers at or about premises of employer even if for lawful purpose was unconstitutional denial of rights under subsection (6) of this section. Boyd v. Deena Artware, Inc., 239 S.W.2d 86, 1951 Ky. LEXIS 852 ( Ky. 1951 ).

Section of union constitution prohibiting members from appearing before legislative or executive groups in opposition to declared programs or policies of union was not violative of rights under this section since such prohibition was expressly inapplicable to member acting in private capacity. Harrison v. Brotherhood of R. & S. S. Clerks, 271 S.W.2d 852, 1954 Ky. LEXIS 1049 ( Ky. 1954 ).

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. Because hiring school district employees is an act essential to the function of the school district, Kentucky’s governmental immunity protected the school district and the school superintendent, in his official capacity, from liability for the teacher’s state-law claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. For claims against the school superintendent in his individual capacity for hiring decisions in which he actually participated and or in which his role was unclear, the superintendent was not entitled to summary judgment; it had long been established that discharging or failing to hire or retain an employee because she engaged in protected speech was wrongful, so the superintendent was not entitled to qualified immunity from liability for those claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

2017 Ky. Acts 1 does not violate the equal protection provisions of the Kentucky Constitution; the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Employers might be attracted to locate in a state where wages are lower as opposed to a state where wages are higher, and to the extent this conclusion might be characterized as speculative, it is undoubtedly rational; the legislature can clearly make a policy decision that 2017 Ky. Acts 1 might result in more jobs, albeit at lower wages, and that this result, in turn, might benefit the overall economic climate of Kentucky. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Rational basis review is appropriate for evaluating 2017 Ky. Acts 1 since the Act is expressly permitted by the Taft-Hartley Act. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

17.Public Welfare.

The people of every state have the inherent right to pass laws for the public safety, health, morals and general welfare. Bosworth v. Lexington, 277 Ky. 90 , 125 S.W.2d 995, 1939 Ky. LEXIS 615 ( Ky. 1939 ).

The protection of citizens in their quietude, rest and sleep during the night justified ordinance provision prohibiting operation of sound trucks at night. Brachey v. Maupin, 277 Ky. 467 , 126 S.W.2d 881, 1939 Ky. LEXIS 683 ( Ky. 1939 ).

Authority is vested by police power in legislative bodies to enact laws relating to almost if not all professions and many other subjects affecting the public weal, and to enact complete prohibition of some activities or in certain areas if based on sufficient reasons. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

Whether legislation enacted under authority of police power be prohibitory or regulatory, it must not exceed limits of reasonableness, or be rested upon grounds without foundation in fact, or be more destructive of, than beneficial to, interest of public at large. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

The constitutional guarantees in the third and fourth subsections may — when occasions and conditions require it — be regulated by the legislature under its police power, if such regulation is based upon reasonable grounds for the promotion of the interest or welfare of the general public, but not to be exercised arbitrarily so as to destroy the rights guaranteed. Moore v. Northern Kentucky Independent Food Dealers Ass'n, 286 Ky. 24 , 149 S.W.2d 755, 1941 Ky. LEXIS 211 ( Ky. 1941 ).

The Constitution protects the right of a person to follow any occupation the pursuit of which does not injure the public weal. Southern Linen Supply Co. v. Hazard, 286 Ky. 626 , 151 S.W.2d 758, 1941 Ky. LEXIS 319 ( Ky. 1941 ).

Regulations imposed on restaurants due to the COVID-19 pandemic were not arbitrary under this section because the Cabinet for Health and Family Services’ broad police powers for dealing with contagious diseases, Ky. Rev. Stat. Ann. §§ 211.025 , 211.180(1)63 provided a rational basis for the face covering and the social distancing measure. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

Regulations imposed on child care facilities due to the COVID-19 pandemic were not arbitrary under this section because the record amply reflected a rational basis for both sets of restrictions; the Limited Duration Centers were literally emergency childcare for healthcare workers and first responders in the very early days of the pandemic with regulations based on successful emergency childcare centers in other states, and when regular Kentucky childcare facilities generally reopened in June 2020, the group sizes and the tour restrictions for these centers were based on articulated public health reasons, i.e., efforts to limit the spread of disease as society in general was reopening. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

18.Religious Freedom.

Statute which made it a misdemeanor to wilfully disturb a congregation or to sell liquor within a mile of divine services did not violate this section. Rich v. Bailey, 123 Ky. 827 , 97 S.W. 747, 30 Ky. L. Rptr. 155 , 1906 Ky. LEXIS 220 (Ky. Ct. App. 1906).

One distributing religious tracts for Jehovah’s Witnesses, either selling or donating them, is engaged in religious and not commercial activity and an ordinance forbidding commercial peddling, if applicable, would violate this section guaranteeing freedom of religion. Seevers v. Somerset, 295 Ky. 595 , 175 S.W.2d 18, 1943 Ky. LEXIS 304 ( Ky. 1943 ). See Hibsman v. Madisonville, 295 Ky. 601 , 175 S.W.2d 21, 1943 Ky. LEXIS 305 ( Ky. 1943 ).

One may have any religious belief desired, but one’s conduct remains subject to regulation for the protection of society. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

Religious freedom embraces two (2) conceptions: freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

The constitutional guarantee of religious freedom does not permit the practice of religious rites dangerous or detrimental to the lives, safety, or health of the participants or to the public. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

Wearing of religious dress and emblems by Catholic sisters while teaching in public schools was not violative of this section. Rawlings v. Butler, 290 S.W.2d 801, 1956 Ky. LEXIS 345 ( Ky. 1956 ).

Lease of hospital building to religious organization was not violative of this section. Abernathy v. Irvine, 355 S.W.2d 159, 1961 Ky. LEXIS 16 ( Ky. 1961 ), cert. denied, 371 U.S. 831, 83 S. Ct. 49, 9 L. Ed. 2d 67, 1962 U.S. LEXIS 649 (U.S. 1962).

The Commonwealth may only infringe upon the free exercise of religion when it does so in pursuit of an overriding, compelling interest of the highest order, and only if it does so in the least restrictive manner possible. Cabinet for Human Resources Kentucky Health Facilities v. Provincial Convent of Good Shepherd, Inc., 701 S.W.2d 137, 1985 Ky. App. LEXIS 616 (Ky. Ct. App. 1985).

Requiring students to take the Kentucky Instructional Results Information System (KIRIS) examination did not violate students’ constitutional rights of freedom of religion. Triplett v. Livingston County Bd. of Educ., 967 S.W.2d 25, 1997 Ky. App. LEXIS 74 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 1104, 119 S. Ct. 870, 142 L. Ed. 2d 771, 1999 U.S. LEXIS 599 (U.S. 1999).

KRS 189.820 does not infringe upon the right to exercise religion by restricting religious worship rituals or enforcing compulsory conduct to which a person is conscientiously opposed; driving an automobile is not a fundamental constitutional right, but a legitimately regulated privilege, like the use of public roads, and the use of a vehicle and the public roads are not acts of religious worship. KRS 189.820 is a neutral law of general applicability, and does not invoke strict scrutiny analysis; the Commonwealth’s objective of ensuring public safety through the most effective means possible by use of an emblem to alert to a slow-moving vehicle overshadowed any encumbrances on religious practices. KRS 189.820 would have passed constitutional muster if a strict scrutiny analysis was applied, an argument that a bicycle exemption created a showing of legislative belief that slow-moving vehicle emblems did not promote roadway safety was rejected, and an argument that reflective tape was a less restrictive alternative was also rejected. Gingerich v. Commonwealth, 2011 Ky. App. LEXIS 97 (Ky. Ct. App. June 3, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 963 (Ky. Ct. App. June 3, 2011).

Drivers who refused to display a slow-moving vehicle emblem on horse-and-buggy vehicles for religious reasons could be ticketed and fined under KRS 189.820 without violating their right to the free exercise of religion under Ky. Const. §§ 1, 5. Under the rational basis standard of review, which was appropriate because § 189.820 is a public safety statute that generally applies to all slow-moving vehicles and does not prohibit any religious practice, there was ample rational basis for a statute regulating slow-moving vehicles for safety reasons. Gingerich v. Commonwealth, 382 S.W.3d 835, 2012 Ky. LEXIS 175 ( Ky. 2012 ).

Free-exercise-of-religion protections in Ky. Const. §§ 1, 5 provide no more protection than the First Amendment, U.S. Const. amend. I; thus, generally applicable statutes that provide for the public health, safety, and welfare and only incidentally affect the practice of religion are subject to rational basis review under the Kentucky Constitution, as they are under the federal Constitution. Enactments that directly prohibit or restrain a religious practice are subject to a strict scrutiny standard of review under Kentucky law. Gingerich v. Commonwealth, 382 S.W.3d 835, 2012 Ky. LEXIS 175 ( Ky. 2012 ).

19.Freedom of Speech.

The proposed application of KRS 121.025 and § 150 of the Constitution to prohibit the Louisville Bar Association’s paid advertisement showing the results of a poll of its members as to the qualification of candidates for the judiciary would be incompatible with the freedoms secured by the first amendment of both the Kentucky and the United States Constitutions. Kentucky Registry of Election Finance v. Louisville Bar Asso., 579 S.W.2d 622, 1978 Ky. App. LEXIS 673 (Ky. Ct. App. 1978).

KRS 161.190 , which provides that no person shall upbraid, insult or abuse a public school teacher in the presence of the school or a pupil thereof, is an unconstitutional violation of the First Amendment and Section 1(4) and Section 8 of the Kentucky Constitution. Commonwealth v. Ashcraft, 691 S.W.2d 229, 1985 Ky. App. LEXIS 554 (Ky. Ct. App. 1985).

Employee who was transferred from his position as a university athletic director to the directorship of corporate and foundation giving could not recover for retaliation in violation of his free speech rights under Ky. Const. § 1 because he could not show that his transfer was caused by his political statements, although the transfer was an adverse employment action. Dennison v. Murray State Univ., 465 F. Supp. 2d 733, 2006 U.S. Dist. LEXIS 80800 (W.D. Ky. 2006 ).

County ordinance’s “no touch” provision was unconstitutionally overbroad under the First Amendment because prohibiting all touching between adult establishment customers and entertainers, including benign, nonsexual touching, was substantially broader than necessary to achieve the county’s interest in combating prostitution and sexually transmitted diseases. An ordinance could easily be more narrowly tailored to prohibit sexual touching, as in a ban on touching during a performance or while in a state of nudity. Blue Movies, Inc. v. Louisville/Jefferson County Metro Gov't, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ), cert. denied, 562 U.S. 1272, 131 S. Ct. 1617, 179 L. Ed. 2d 502, 2011 U.S. LEXIS 1991 (U.S. 2011).

20.Regulating Occupations.

Under this section one may engage in businesses or occupations which are not harmful to public good. Lawton v. Stewart Dry Goods Co., 197 Ky. 394 , 247 S.W. 14, 1923 Ky. LEXIS 636 ( Ky. 1923 ).

To sustain legislative interference with lawful business of a citizen, the court must be able to see that the act tends in some degree to promote public health, morals, safety or welfare, and means adopted must be reasonably necessary to accomplish purpose and not be unduly oppressive. Ware v. Ammon, 212 Ky. 152 , 278 S.W. 593, 1925 Ky. LEXIS 1094 ( Ky. 1925 ). See Rawles v. Jenkins, 212 Ky. 287 , 279 S.W. 350, 1925 Ky. LEXIS 1121 ( Ky. 1925 ).

The legislature may make regulations to prevent undue or unseemly rivalry or competition in the professions, and may prohibit practices whose general effect is to deceive the public, even though in particular instances there may be no actual deception or misstatement. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

The legislature may not put arbitrary and unnecessary restrictions upon lawful occupations under the mask of police power and the restriction or regulation must be reasonably necessary to effectuate the results desired. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

If business operating under regulations as to qualifications of participants therein is lawful and is necessary for comfort and convenience of public, its hours for conducting business may not be arbitrarily interfered with by legislative body. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

A city may not impose a license fee which is grossly disproportionate to the business actually being done or which reasonably can be done within the city. Southern Linen Supply Co. v. Hazard, 286 Ky. 626 , 151 S.W.2d 758, 1941 Ky. LEXIS 319 ( Ky. 1941 ).

An ordinance by a municipal corporation regulating the hours during which a business may be operated which does not directly or remotely tend to benefit the public health, morals, safety or the general welfare when applied to a restaurant cannot be justified on the theory that it was passed under the police power. Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1 , 178 S.W.2d 847, 1944 Ky. LEXIS 652 ( Ky. 1 944 ).

The provision of former law that required compulsory malpractice insurance constituted an unjustifiable interference with the right to pursue a legitimate business or profession and was therefore unconstitutional under this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

21.— Particular Occupations.

Law having made it unlawful for the owner of pooled products to violate his pooling contract by selling his part of such products without the consent of the agent of the pooling parties, a further provision, making it an offense for persons to buy from him knowing he was so violating his pooling contract, did not interfere with their right under the constitution to acquire property. Commonwealth v. Hodges, 137 Ky. 233 , 125 S.W. 689, 1910 Ky. LEXIS 562 ( Ky. 1910 ).

The regulation of the production and marketing of milk is a proper exercise of the police power, and the court will accept the legislature’s judgment as to classification and regulation, where there is room for reasonable difference of opinion. Pure Milk Producers & Distributors Ass'ns v. Morton, 276 Ky. 736 , 125 S.W.2d 216, 1939 Ky. LEXIS 575 ( Ky. 1939 ).

No one has an inherent right to practice the profession of medicine or dentistry, and the legislature may regulate those professions on a different basis than ordinary commercial businesses. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

The profession of dentistry and its practice is subject to the police power of the state, and the legislature may make reasonable regulations in the interest of public health, safety, morals or general welfare. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

The provisions of KRS 313.140 prohibiting the advertising of credit or terms of credit by dentists do not violate this section. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

Ordinance regulating barbering prohibiting shops from keeping open before 8:00 a.m. or after 6:00 p. m. except on Saturdays and days preceding holidays was invalid under police power, since restrictions were unreasonable, and without justification denied barbers right to render and public to receive services at hours most profitable for barbers and most convenient for public. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

So far as ordinance regulating barbering business related to sanitary condition of premises and qualifications of barbers, it was legally unobjectionable. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

Limitations regulating “outside work” by policemen imposed by ordinance are not unlawful if the ordinance neither forces them to serve nor prohibits them from doing whatever they wish to do if they choose not to serve. Hopwood v. Paducah, 424 S.W.2d 134, 1968 Ky. LEXIS 447 ( Ky. 1968 ).

Supreme Court Rule 3.130 governing disciplinary action against attorneys was not so vague as to be constitutionally infirm. Kentucky Bar Asso. v. Kramer, 555 S.W.2d 245, 1977 Ky. LEXIS 498 ( Ky. 1977 ) (decision prior to 1978 amendment of S.C.R. 3.130).

The fact that statutes of limitations do not apply to the initiation of disciplinary proceedings against attorneys does not deprive attorneys of due process. Kentucky Bar Asso. v. Signer, 558 S.W.2d 582, 1977 Ky. LEXIS 535 ( Ky. 1977 ).

22.Right to Earn Livelihood.

Where owners of existing cable television stations were not treated any differently than any other persons by a resolution dividing a county into cable television districts, the resolution did not deprive them of the right to earn a livelihood by restricting their operations. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

23.Taxation.

The mere right to own and hold property cannot be made the subject of excises. Craig v. E. H. Taylor, Jr. & Sons, 192 Ky. 36 , 232 S.W. 395, 1921 Ky. LEXIS 28 ( Ky. 1921 ).

Any prohibitory tax of legitimate business violated bill of rights as read in conjunction with Const., § 181. Field Packing Co. v. Glenn, 5 F. Supp. 4, 1933 U.S. Dist. LEXIS 1127 (D. Ky.), modified, 290 U.S. 177, 54 S. Ct. 138, 78 L. Ed. 252, 1933 U.S. LEXIS 453 (U.S. 1933).

Gross sales tax on retail merchants did not constitute exercise of arbitrary power over lives, liberty, or property of such merchants, nor deny them their constitutional rights to acquire and protect property. Stewart Dry Goods Co. v. Lewis, 7 F. Supp. 438, 1933 U.S. Dist. LEXIS 1007 (D. Ky. 1933 ), rev'd, 294 U.S. 550, 55 S. Ct. 525, 79 L. Ed. 1054, 1935 U.S. LEXIS 57 (U.S. 1935).

Law that imposed a license tax on retail merchants, graduated according to the number of stores operated in the state, amounted to confiscation of taxpayer’s property under this section as read in connection with Const., § 181. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

A 50-cent fee imposed on farmers, selling their own produce in city, by provision exempting them from license tax on wholesale dealers imposed by ordinance was not an excise tax or privilege tax, but an inspection fee validly levied under the police power to aid in enforcement of ordinance. Hartman v. Louisville, 282 Ky. 487 , 138 S.W.2d 948, 1940 Ky. LEXIS 183 ( Ky. 1940 ).

Unless an occupation may be absolutely prohibited, taxes levied against it must not be prohibitive or confiscatory. Hartman v. Louisville, 282 Ky. 487 , 138 S.W.2d 948, 1940 Ky. LEXIS 183 ( Ky. 1940 ).

A municipal occupational tax on legitimate businesses must not be confiscatory. Southern Linen Supply Co. v. Hazard, 286 Ky. 626 , 151 S.W.2d 758, 1941 Ky. LEXIS 319 ( Ky. 1941 ).

Though Const., §§ 1 and 2 guarantee to everyone the inalienable right to earn a livelihood, Const., § 181 expressly qualifies that right to the extent that it empowers cities, counties, towns, and other municipal corporations to impose an occupational license tax on “trades, occupations and professions.” The quoted language covers all fields of employment and all means of earning a livelihood. Louisville v. Sebree, 308 Ky. 420 , 214 S.W.2d 248, 1948 Ky. LEXIS 907 ( Ky. 1948 ).

Although classification by KRS 136.120 of municipal solid waste disposal facilities that dispose of waste by landfill singles out such facilities for disparate tax treatment and is not a perfect fit to the state’s objectives, such classification is reasonably related to the state’s goals for solid waste management and is therefore constitutional. Cooksey Bros. Disposal Co. v. Boyd County, 973 S.W.2d 64, 1997 Ky. App. LEXIS 132 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 930, 119 S. Ct. 338, 142 L. Ed. 2d 279, 1998 U.S. LEXIS 6495 (U.S. 1998).

24.Incompetent Persons.

Person could not be declared incompetent and have his property taken away or be confined without jury intervention and jury verdict declaring such person non sui juris. Hager v. Pacific Mut. Life Ins. Co., 43 F. Supp. 22, 1942 U.S. Dist. LEXIS 3145 (D. Ky. 1942 ).

Where the withdrawal of life-prolonging medical treatment becomes solely another person’s decision about the incompetent patient’s quality of life, the patient’s “inalienable right to life” outweighs any consideration of the quality or value of the life at stake. DeGrella v. Elston, 858 S.W.2d 698, 1993 Ky. LEXIS 103 ( Ky. 1993 ).

No liability attaches to a decision, and a court order is not required, to withdraw medical treatment from a patient in a persistent vegetative state, where the patient’s wishes were known, and the necessary facts are established and carefully documented by the parties involved. DeGrella v. Elston, 858 S.W.2d 698, 1993 Ky. LEXIS 103 ( Ky. 1993 ).

25.Fair Trade Acts.

Nonsigner provisions in McGuire act and Kentucky fair trade statute were unlawful exercise of police power under this section and United States Const., Amends. 5 and 14. Sunbeam Corp. v. Richardson, 144 F. Supp. 583, 1956 U.S. Dist. LEXIS 2806 (D. Ky. 1956 ), rev'd, 243 F.2d 501, 1957 U.S. App. LEXIS 5247 (6th Cir. Ky. 1957 ).

26.Franchise Laws.

Ordinance requiring franchise for city ambulance service was not violative of rights under subsection (5) of this section. Ray v. Owensboro, 415 S.W.2d 77, 1967 Ky. LEXIS 294 ( Ky. 1967 ).

Where a fiscal court resolution provided that a successful bidder for a cable television franchise must purchase the existing cable television system at a price to be determined by three appraisers, such resolution would be construed to mean that the franchise winner must buy the existing system only if the owner wanted to sell it and, as so construed, there was no taking of private property in violation of due process. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

27.Absentee Voting.

Law that established two (2) general classes of voters who are eligible to vote by absentee ballot was not unconstitutionally unreasonable and arbitrary. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

28.Delinquency.

Subsection (1) of KRS 199.320 (now repealed) making it criminal offense to contribute to delinquency of minor was not unconstitutionally vague and indefinite. McDonald v. Commonwealth, 331 S.W.2d 716, 1960 Ky. LEXIS 125 ( Ky. 1960 ).

The Kentucky Unified Juvenile Code has extinguished the common law presumption that a child is without criminal capacity (the “infancy defense”), since a delinquency adjudication in juvenile court is not a criminal conviction under KRS 635.040 , and allowing the presumption would frustrate the clinical and rehabilitative purposes of the Code. W.D.B. v. Commonwealth, 246 S.W.3d 448, 2007 Ky. LEXIS 241 ( Ky. 2007 ).

The trial court did not err in declining to hold a Daubert hearing to determine the reliability of the methods used by the commonwealth to evaluate the juvenile offender for treatment as a sexual offender where he had already been adjudicated guilty of first-degree sexual abuse under KRS 635.505(2)(a) and KRS 510.110 , and the assessment was used to decide appropriate treatment for defendant and not for adjudicatory purposes. W.D.B. v. Commonwealth, 246 S.W.3d 448, 2007 Ky. LEXIS 241 ( Ky. 2007 ).

Requiring juveniles adjudicated public offenders for various sex offenses to submit DNA samples in accordance with Kentucky’s DNA sampling statutes, KRS 17.170 through 17.175 (KRS 17.171 through KRS 17.174 are now repealed), did not violate the Fourth Amendment or Ky. Const. §§ 1, 2, and 11 because the juveniles’ privacy interests did not outweigh law enforcement’s interest in solving crimes. Petitioner F v. Brown, 306 S.W.3d 80, 2010 Ky. LEXIS 70 (Ky.), cert. denied, 562 U.S. 985, 131 S. Ct. 422, 178 L. Ed. 2d 329, 2010 U.S. LEXIS 8178 (U.S. 2010).

29.Residency Requirements.

KRS 280.180 (repealed), 280.200 (repealed) and 280.220 requiring residency in order to have ferry privilege, was not void as depriving nonresident of property without compensation. Muscovalley v. Horn, 246 Ky. 778 , 56 S.W.2d 354, 1932 Ky. LEXIS 826 ( Ky. 1932 ).

30.Workmen’s Compensation.

Legislative regulation of contracts under compensation law was not violation of right to enter into lawful contracts under this section or Const., § 2. Workmen's Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 ( Ky. 1925 ).

Employer’s due process rights were not violated when the administrator for the deceased employee’s estate mistakenly sent the initial notice of claim to the place of the work injury and not to the employer’s address, and when subsequent other notices and filings went to the wrong address, because the employer’s insurance carrier received timely notice and entered a timely answer on behalf of the employer and the employer otherwise was given an opportunity to be heard. Realty Improvement Co. v. Raley, 194 S.W.3d 818, 2006 Ky. LEXIS 158 ( Ky. 2006 ).

Consensus procedure under KRS 342.316 for coal workers’ pneumoconiosis claims did not violate equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 3 because the inherent differences in pneumoconiosis, which was slow to develop, and a traumatic injury provided a reasonable basis for the different statutory treatment for such workers’ compensation claims. KRS 342.316 (13) did not impose a greater burden of proof than on those workers who claimed benefits under KRS 342.730 as the presumption in the consensus procedure was a rebuttable one that could be overcome with clear and convincing evidence. Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

31.Burial Associations.

That part of act regulating burial associations, prohibiting association from restricting payment of burial benefits to undertaker named in policy agreement, was unconstitutional as interfering with the right of private contract in a field of competitive business. Kenton & Campbell Benevolent Burial Ass'n v. Goodpaster, 304 Ky. 233 , 200 S.W.2d 120, 1946 Ky. LEXIS 932 ( Ky. 1946 ).

32.Sunday Assemblies.

This section guarantees to citizens the right to assemble peaceably at motion picture or elsewhere on any day of the week including Sunday. Commonwealth v. Phoenix Amusement Co., 241 Ky. 678 , 44 S.W.2d 830, 1931 Ky. LEXIS 150 ( Ky. 1931 ).

33.Masks and Disguises.

Ordinance was not violative of this section which made it unlawful to appear on street wearing mask or other disguise. Pineville v. Marshall, 222 Ky. 4 , 299 S.W. 1072, 1927 Ky. LEXIS 852 ( Ky. 1927 ).

34.Penalty Provisions.

Penalty provisions of KRS, 132.290 were not arbitrary and thus were not in contravention of this section. Commonwealth v. St. Matthews Gas & Electric Shop, Inc., 252 S.W.2d 673, 1952 Ky. LEXIS 1011 ( Ky. 1952 ).

35.Rights of Minors.

Law was void to extent it attempted to authorize leasing of mineral rights of infant owner for period beyond minority of such infant. Lawrence E. Tierney Coal Co. v. Smith's Guardian, 180 Ky. 815 , 203 S.W. 731, 1918 Ky. LEXIS 151 (Ky.), modified, 181 Ky. 764 , 205 S.W. 951, 1918 Ky. LEXIS 623 ( Ky. 1918 ).

36.Rights to Privacy.

The legislature cannot invade the privacy of a citizen’s life and regulate his conduct in matters in which he alone is concerned, or prohibit him any liberty, the exercise of which will not directly injure society. Commonwealth v. Campbell, 133 Ky. 50 , 117 S.W. 383, 1909 Ky. LEXIS 169 ( Ky. 1909 ).

Statutes barring trafficking in or possessing marijuana did not violate the right to privacy because the statutes did not criminalize private possession and sale out of misplaced concerns about morality or public decency, as Kentucky citizens’ health, safety and well-being were implicated. Seum v. Bevin, 2019 Ky. App. LEXIS 29 (Ky. Ct. App. Mar. 8, 2019), sub. op., 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

37.Sexual Conduct.

KRS 510.100 , which criminalized deviate sexual intercourse between consenting adults of the same sex, even if the act was committed in the privacy of a home, violated the Kentucky Constitution as: (1) An invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment. Commonwealth v. Wasson, 842 S.W.2d 487, 1992 Ky. LEXIS 140 ( Ky. 1992 ).

Local municipality’s ordinance requiring the licensing of adult entertainment businesses, prohibiting nudity, restricting operation hours, requiring a buffer zone, prohibiting touching and other restrictions, was constitutional upon application of an intermediate scrutiny level of review. The ordinance was content neutral and within the municipality’s police power to regulate the secondary effects of such establishments. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 2007 Ky. App. LEXIS 370 (Ky. Ct. App. Oct. 5, 2007), aff'd in part and rev'd in part, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ).

38.Domestic Corporations.

Any law which seeks arbitrarily to deprive a domestic corporation, organized under the statute to establish and maintain an industrial school for colored people, of the right to use its property in any way it sees fit within its charactered powers not inimical to the public welfare is in violation of this section. Columbia Trust Co. v. Lincoln Institute of Kentucky, 138 Ky. 804 , 129 S.W. 113, 1910 Ky. LEXIS 138 ( Ky. 1910 ).

39.Right to Petition.

Any citizen or number of citizens may petition the legislature of the Commonwealth for any necessary and proper purpose, which includes the right to lawfully circulate the petition, and procure others to sign it, and will be in accord with this section. Yancey v. Commonwealth, 135 Ky. 207 , 122 S.W. 123, 1909 Ky. LEXIS 278 ( Ky. 1909 ).

The registration, reporting and disclosure provisions of KRS 6.801 and 11A.211 are not an impermissible burden on Associated Industries of Kentucky’s freedom of association and right to petition, and the “chilling effect” of these provisions, which prohibit anonymous lobbying, is minimal in view of the governmental interest of curtailing lobbying abuse, thus they are not unconstitutional. Associated Indus. v. Commonwealth, 912 S.W.2d 947, 1995 Ky. LEXIS 147 ( Ky. 1995 ).

40.Liquor Prohibition.

There is not and never has been any law in this state that prohibited the citizen from purchasing, where it is lawful to sell it, intoxicating liquor for his personal use or from having in his possession for such use liquor so purchased. Adams Express Co. v. Commonwealth, 154 Ky. 462 , 157 S.W. 908, 1913 Ky. LEXIS 96 ( Ky. 1913 ).

41.Automobiles.

Permission to operate an auto on the public highways is a temporary right granted by the state, and its use and enjoyment depends upon compliance with the conditions prescribed. Revocation of the operator’s license is merely forfeiture of a conditional temporary permit, and does not deprive the holder of any guaranteed civil right. Commonwealth v. Harris, 278 Ky. 218 , 128 S.W.2d 579, 1939 Ky. LEXIS 405 ( Ky. 1939 ).

42.Due Process.

Fundamental purpose of police power is to better conditions of living, and chief objectives are improvement of morals, health, education, cooperation, and all other things to make government run smoothly, but it is subject to limitations guaranteed by federal and state Constitutions that citizen’s property and personal rights shall not be taken without due process of law. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

The “good cause” standard for removal of judges is not so vague as to violate due process requirements, since, although the specific acts of misconduct encompassed within the phrase are numerous, ample guidelines for the determination of proper conduct may be found in the ethical standards applicable to lawyers and judges adopted by national and state bar associations and in the moral standards expected of judicial officers by the public. Nicholson v. Judicial Retirement & Removal Com., 562 S.W.2d 306, 1978 Ky. LEXIS 322 ( Ky. 1978 ).

Where the Judicial Retirement and Removal Commission investigated the allegations of misconduct, instituted formal proceedings and issued a public censure after conducting an evidentiary hearing, the mere combination of the investigative and adjudicative functions within the commission did not violate the judge’s due process right to an unbiased trier of fact. Nicholson v. Judicial Retirement & Removal Com., 562 S.W.2d 306, 1978 Ky. LEXIS 322 ( Ky. 1978 ).

Inmate transferred from a Virginia correctional facility to a Kentucky correctional facility was not entitled to have Virginia’s prison disciplinary rules and regulations applied while incarcerated in the Kentucky facility under the Interstate Corrections Compact (ICC), KRS 196.610 , because both the implementing transfer contract and art. IV(e) of the ICC indicated that the prison rules and regulations of the receiving state, Kentucky, applied and requiring receiving states to learn the policies and procedures of each sending state would have thwarted the ICC’s purpose of developing a cooperative prison program; thus, the inmate’s request for declaratory relief was properly decided adversely to the inmate because there was no violation of the right to due process. Vigue v. Underwood, 139 S.W.3d 168, 2004 Ky. App. LEXIS 24 (Ky. Ct. App. 2004).

District court properly dismissed a former public employee’s federal and state due process claims because, although the employee had a right to insist that her former employer follow the procedures set forth KRS 151B.085 , the statute contained no “cause” requirement where a continuing employee was laid off because her position was abolished. Thus, the employee had no protectible property interest in her continued employment. Gragg v. Somerset Tech. College, 373 F.3d 763, 2004 FED App. 0190P, 2004 U.S. App. LEXIS 12229 (6th Cir. Ky. 2004 ).

County’s occupational license fee ordinance and KRS 68.197 were constitutionally valid because when the fee was first imposed under a public question ballot, the county was not required to give taxpayers credit for city fees and retroactive restoration of that provision had legitimate purpose and did not violate due process under the Kentucky Constitution or KRS 446.080 . King v. Campbell County, 217 S.W.3d 862, 2006 Ky. App. LEXIS 331 (Ky. Ct. App. 2006).

County ordinance banning pit bull terriers and imposing penalties for their possession gave an owner the opportunity to appear in court and present evidence and defenses to the action; therefore, the ordinance afforded procedural due process. Bess v. Bracken County Fiscal Court, 210 S.W.3d 177, 2006 Ky. App. LEXIS 347 (Ky. Ct. App. 2006).

KRS 61.590(3), limiting the time allowed to change a payment option, was not vague or ambiguous; because KRS 61.590(3) was plainly written, an explanatory administrative regulation was unnecessary. A trial court’s judgment affirming a determination that a retiree was not permitted to change his retirement payment option was proper because there was no evidence that the retirement system was negligent or that information provided to retiree was erroneous. Lawson v. Ky. Ret. Sys., 2007 Ky. App. LEXIS 200 (Ky. Ct. App. July 6, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 507 (Ky. Ct. App. July 6, 2007).

Trial court erred in ordering the cabinet for health and family services to pay for opiate hair follicle drug screen testing performed on the parents of a neglected child because there was no specific statute authorizing assessment of such payment and there was no significant potential infringement of the parents’ due process rights which would serve to bring the issue within the purview of the court’s inherent powers to administer justice. Commonwealth v. G.W.F., 229 S.W.3d 596, 2007 Ky. App. LEXIS 364 (Ky. Ct. App. 2007).

Mother’s due process rights were not violated by the denial of her request that her children testify in a termination of parental rights proceeding as the ramifications of the children’s testimony was considered, and for purposes of KRS 625.080(2) it was not in their best interests to testify; the mother had the opportunity to question the children during an in camera interview. J.M.R. v. Commonwealth, 239 S.W.3d 116, 2007 Ky. App. LEXIS 407 (Ky. Ct. App. 2007), overruled, Colvard v. Commonwealth, 309 S.W.3d 239, 2010 Ky. LEXIS 62 ( Ky. 2010 ).

43.— During Trial.

Prosecutor’s comments were not error and were certainly not palpable error under RCr 10.26; he did not make unfounded and inflammatory attacks on the opposing advocate, and his comments on the mitigation evidence were not misleading and the prosecutor confined himself to the facts in evidence and the fair inferences that could be withdrawn therefrom. Young v. Commonwealth, 129 S.W.3d 343, 2004 Ky. LEXIS 78 ( Ky. 2004 ).

Punitive damages awarded to an injured party in a wrongful death action violated the Due Process Clause as the jury considered a manufacturer’s conduct on a nationwide scale in awarding the punitive damages and as the jury instructions did not provide a safeguard from extraterritorial punishment. Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 2004 Ky. LEXIS 226 ( Ky. 2004 ).

Trial court violated the contemnor’s due process rights when the trial court found the contemnor in contempt for the contemnor’s conduct while representing a defendant in a criminal proceeding, summarily jailed the contemnor for a few hours, and then scheduled a sentencing hearing a few weeks later on the matter without allowing the contemnor to be heard; although the trial court had the authority to find the contemnor in contempt and summarily jail the contemnor to address the disrespect the contemnor showed to the trial court, the trial court’s conduct in continuing the matter for a later sentencing hearing meant there was no longer a threat to the trial court and the contemnor should have been allowed to be heard on the matter. Schroering v. Hickman, 229 S.W.3d 591, 2007 Ky. App. LEXIS 59 (Ky. Ct. App. 2007).

In proceedings to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 , while defendant argued that his due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated as the Circuit Court refused to consider possible alternative punishments, no legal authority existed that required the Circuit Court to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support. Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

Defendant’s due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated by the Circuit Court’s failure to make findings of fact specifying the evidence relied upon to support its decision to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 . Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

Mother’s due process rights and rights under KRS 625.080(3) and KRS 620.100(1) were violated when a Family Court proceeded to take testimony from two witnesses in a termination of parental rights trial even though the mother’s counsel could not get to court due to a snow storm. A.P. v. Commonwealth, 270 S.W.3d 418, 2008 Ky. App. LEXIS 319 (Ky. Ct. App. 2008).

Trial court erred when it declined to allow an attorney a warning order fee in a divorce case and failed to direct the wife to pay the fee because the more specific provisions in KRS 453.060 took precedence over more general language of KRS 453.190(1), and KRS 453.060 (2) clearly mandated that a warning order attorney be granted a reasonable fee. The wife was not denied access to the court, nor had the adjudication of her divorce been impeded or impaired by a demand for payment of fees. Spees v. Ky. Legal Aid, 274 S.W.3d 447, 2009 Ky. LEXIS 16 ( Ky. 2009 ).

KRS 17.510(10)(a) was not unconstitutionally vague as applied to defendant because, even though defendant became homeless when he was expelled from a center where he was living, this fact was irrelevant to the statute’s application; the statute did not require that a registrant must have had an actual place he was moving to. Further, KRS 17.510(10)(a) as written did not cause arbitrary or discriminatory enforcement and did not criminalize being homeless because all sex offenders, regardless of socioeconomic status, had to register with the proper authorities and report any change in address. Tobar v. Commonwealth, 284 S.W.3d 133, 2009 Ky. LEXIS 81 ( Ky. 2009 ).

44.— As Applied to Inmates.

Where a chain of custody of a urinalysis was not flawed, an inmate’s loss of good-time credits for unauthorized drug use was not a violation of due process; the inmate received all due process to which the inmate was entitled and the trial court did not err in denying the inmate’s petition for a declaratory judgment. Rhodes v. Phillips, 2003 Ky. App. Unpub. LEXIS 955 (Ky. Ct. App. May 23, 2003).

In disciplinary proceedings in which two inmates were charged with possession of dangerous contraband, due process required prison officials to present evidence that the Duquenois-Levine and the Marquis Reagent field drug tests were reliable as a foundation; prison officials’ failure to do so meant that the field tests utilized could not serve to meet the “some evidence” standard required to support the punishment imposed upon the inmates, which included loss of good time credit and segregation. Webb v. Sharp, 223 S.W.3d 113, 2007 Ky. LEXIS 119 ( Ky. 2007 ).

Circuit Court properly dismissed an inmate’s declaration of rights petition, as his claims that his due process rights were violated by denying him extended discovery and that his rights under the federal HIPAA statute were breached lacked merit. McMillen v. Ky. Dep't of Corr., 233 S.W.3d 203, 2007 Ky. App. LEXIS 300 (Ky. Ct. App. 2007).

45.Class Legislation.

Equal protection requires that in defining a class subject to legislation, the distinctions that are drawn have some relevance to the purpose for which the classification is made. Walters v. Bindner, 435 S.W.2d 464, 1968 Ky. LEXIS 210 ( Ky. 1968 ).

Without a showing of compelling governmental interest, the policy of a school board in showing preference for the employment of natives of its county constituted an inherently suspect classification, unconstitutionally discriminatory and preferential in violation of this section and sections 2 and 3 of the Constitution. Johnson v. Dixon, 501 S.W.2d 256, 1973 Ky. LEXIS 128 ( Ky. 1973 ).

46.Parades.

Where in defiance of judicial officers, who had ruled a Klu Klux Klan pre-election masked parade was a breach of the peace, a police officer, unmasked, led the parade with a banner with defiant wording, evidence to this effect presented question of guilt, as the assemblage was not in accord with this section. West v. Commonwealth, 208 Ky. 735 , 271 S.W. 1079, 1925 Ky. LEXIS 379 ( Ky. 1925 ).

47.Right to Bear Arms.

KRS 435.230 (repealed), prohibiting the carrying of concealed weapons, as amended in 1946 (Acts 1946, chapter 40) was constitutional under this section and section 51 of the Constitution. Reed v. Commonwealth, 306 Ky. 295 , 206 S.W.2d 949, 1947 Ky. LEXIS 998 ( Ky. 1947 ).

The District Court did not err in counting 1970 convictions against defendant for purposes of sentencing him under the Armed Career Criminal Act even though in 1970 the laws of Kentucky did not criminalize possession of a firearm by a felon and the Kentucky Constitution guaranteed citizens the right to bear arms. Kentucky does not restore civil rights to convicted felons by statute but provides that a prisoner’s civil rights may be restored by “an act of the governor.” Even if defendant may have been able to possess a firearm for some period of time following his 1970 convictions, such would not act as a restoration of civil rights within the meaning of 18 USCS § 921(a)(20). United States v. Warren, 973 F.2d 1304, 1992 U.S. App. LEXIS 20541 (6th Cir. Ky. 1992 ).

A federal statute, which prohibits the possession of firearms while subject to a domestic violence order, does not violate the state constitutional right to bear arms since such provision is trumped by the Supremacy Clause of the United States Constitution. United States v. Napier, 233 F.3d 394, 2000 FED App. 0397P, 2000 U.S. App. LEXIS 29531 (6th Cir. Ky. 2000 ).

KRS 527.040 , which prohibits convicted felons from possessing firearms, is not arbitrary or irrational and does not unduly infringe upon the right to bear arms which was reserved to the people through Ky. Const., § 1(7). Posey v. Commonwealth, 185 S.W.3d 170, 2006 Ky. LEXIS 53 (Ky.), cert. denied, 549 U.S. 842, 127 S. Ct. 85, 166 L. Ed. 2d 73, 2006 U.S. LEXIS 6540 (U.S. 2006).

48.Religious Convalescent Retirement Home.

Subjecting a private religious convalescent retirement home operated exclusively for the benefit of a religious order to regulations of the Cabinet for Human Resources would potentially cause excessive church/state entanglement. The Commonwealth did not establish an overriding and compelling interest of the highest order to justify infringement upon the religious order’s free exercise of religion with the imposition of these regulations. Cabinet for Human Resources Kentucky Health Facilities v. Provincial Convent of Good Shepherd, Inc., 701 S.W.2d 137, 1985 Ky. App. LEXIS 616 (Ky. Ct. App. 1985).

49.Equal Protection.

Section 59 of the Constitution is more than simply another way of restating the generalized language of the equal protection clause of the Fourteenth Amendment to the United States Constitution; this section and Const., §§ 2 and 3, which provide that the General Assembly is denied arbitrary power and shall treat all persons equally, suffice to embrace the equal protection clause to the Fourteenth Amendment. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

Strip mining regulation which denies a due process hearing to an aggrieved party based solely on his financial inability to pay the penalties which he seeks to appeal is unconstitutional, in violation of the equal protection clauses of both the United States and Kentucky Constitutions. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

“Zero tolerance” provisions of KRS 189A.010 , pertaining to underage drinking and driving, are rationally related to a legitimate state purpose and are based on a valid distinction; therefore, such provisions are valid under the equal protection clauses of the United States and Kentucky Constitutions and do not constitute special legislation in violation of Ky. Const., § 59. Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ).

There was no rational basis for the geographically-based distinction created by KRS 159.051 between students subject to losing their operator’s licenses under the statute and students precluded from the statute; thus, KRS 159.051 was unconstitutional. D.F. v. Codell, 127 S.W.3d 571, 2003 Ky. LEXIS 262 ( Ky. 2003 ).

When the Deputy sheriff merit board ordered that a deputy sheriff be reinstated with back pay, and the sheriff refused to comply with the order, the deputy’s equal protection claim that he was entitled to attorney’s fees in his action to enforce the order, on the theory that KRS 453.260(1) and (3) allowed recovery of such fees by a party prevailing in an action brought by the Commonwealth, had no merit because the case did not begin as a civil action brought by the Commonwealth, so KRS 453.260(1) and (3) were not implicated. Cherry v. Augustus, 245 S.W.3d 766, 2006 Ky. App. LEXIS 205 (Ky. Ct. App. 2006).

Defendant was not denied equal protection when the Commonwealth used a peremptory challenge to strike one of two African-Americans who remained in the jury pool after a third was struck for cause, where the struck juror stated that she knew several people who had been convicted and “done time” although they had not committed their alleged crimes. Rodgers v. Commonwealth, 285 S.W.3d 740, 2009 Ky. LEXIS 163 ( Ky. 2009 ).

Consensus procedure required by KRS 342.316 for proving the existence of coal workers’ pneumoconiosis, and the clear and convincing standard required to rebut such a consensus, violated the equal protection guarantees of U.S. Const. amend. XIV and Ky. Const. § 1-3 because there was no rational basis or substantial and justifiable reason for the disparate treatment of coal workers. Pneumoconiosis caused by exposure to coal dust was the same disease as pneumoconiosis caused by exposure to dust particles in other industries, yet coal workers faced different, higher standard-of-proof requirements than those other workers. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Employee's claim that Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) violated equal protection was subject to rational basis review given that workers' compensation statutes concerned matters of social and economic policy. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) did not violate equal protection because paying employees between the ages of 57 and 65 a monetary benefit that was not tied to retraining may have encouraged them to leave the coal mining industry, thus removing employees susceptible to more severe impairment from the work place, and as a result, treating retraining incentive benefits eligible employees differently was rationally related to the purpose of those benefits. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

Court of Appeals of Kentucky holds Ky. Rev. Stat. Ann. § 342.7305(2) violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Ky. Const. §§ 1, 2, and 3. In particular, the Court of Appeals holds the Supreme Court of Kentucky’s decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 ( Ky. 2011 ), is dispositive. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Ky. Rev. Stat. Ann. § 342.7305(2) offends equal protection guarantees by creating two separate and unequal subclasses of similarly situated hearing loss claimants: all of whom suffered work-related injuries severe enough to qualify for an impairment rating under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and all of whom endured equivalent permanent sensory loss, limited treatment modalities, diminution of daily activities, and occupational restrictions and preclusions, but some of whom are denied equal access to income benefits due to imposition of an arbitrary impairment rating threshold. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

50.— City Ordinance.

Ordinance which restricted the use of free standing signs within city limits by reducing their maximum allowable size did not violate plaintiffs’ right to equal protection under Const., §§ 1 or 3 since the plaintiffs did not allege that they belonged to a suspect class and the ordinance did not burden either plaintiffs’ fundamental right of free speech or fundamental right to just compensation for a taking of property. Wilson v. City of Louisville, 957 F. Supp. 948, 1997 U.S. Dist. LEXIS 2897 (W.D. Ky. 1997 ).

Where in amending ordinance which further restricted the use of small freestanding signs within city limits by reducing their maximum allowable size, the planning commission based its decision on two (2) separate public hearings in which the opponents and proponents of the amendments testified and the commission adopted findings that held that the proscribed portable signs were detrimental to both the aesthetics and safety of the city, the ordinance was related to the commissions goals of aesthetic improvement and safety and did not violate Const., §§ 1 or 3. Wilson v. City of Louisville, 957 F. Supp. 948, 1997 U.S. Dist. LEXIS 2897 (W.D. Ky. 1997 ).

51.— Voir Dire.

Although the striking of one (1) black juror for a racial reason is an equal protection violation, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown, that does not mean the striking of one (1) black juror can constitute a prima facie case if the racial reason is not apparent from statistical inference or other reasons; the defendant must show he is a member of a racial group, that the prosecutor used peremptory challenges to exclude members of that group, and that these facts and other circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

A female defendant is not denied equal protection under the law when the Commonwealth peremptorily challenges female jurors, as the prohibitions concerning the utilization of peremptory challenges, as described in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (1986) do not extend beyond racial discrimination. Hannan v. Commonwealth, 774 S.W.2d 462, 1989 Ky. App. LEXIS 92 (Ky. Ct. App. 1989).

KRS 342.316(3)(b)(4)(e) denied a workers’ compensation benefits claimant equal protection because it discriminated between him and a similarly-situated worker whose employer also submitted evidence of category 1 disease but whose claim was not subject to the second phase of the consensus process; KRS 342.316(3)(b)(4)(e) creates two classes of workers based solely on the amount of discrepancy between the worker’s and employer’s evidence, and because there is no rational or reasonable basis for such discrimination where the employer’s evidence effectively concedes the worker’s entitlement to a retraining incentive benefit. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 2009 Ky. LEXIS 71 ( Ky. 2009 ).

49.5.—Workers’ Compensation.

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Time limitation in Ky. Rev. Stat. Ann. § 342.750(6) did not violate the guarantees of equal protection under the federal and state constitutions because the four-year limit applied equally to all injured workers; substantial and justifiable reasons supported that classification and it was rationally related to a legitimate government purpose; and the employer was entitled to rely on the repose provision in Ky. Rev. Stat. Ann. § 342.750(6). Calloway Cty. Sheriff's Dep't v. Woodall, 607 S.W.3d 557, 2020 Ky. LEXIS 300 ( Ky. 2020 ).

Statutory amendment, which terminated workers’ compensation income benefits when the recipient reached the age of 70 or four years from the date of injury or last injurious exposure, whichever event occurred last, did not violate the Equal Protection Clause because the age classification was rationally related to the legitimate state interests of preventing a duplication of wage-loss protection programs and of promoting the solvency of the Kentucky workers’ compensation system. Cates v. Kroger, 2021 Ky. LEXIS 311 (Ky. Aug. 26, 2021).

52.Physical Specimens.

An order requiring a defendant, under indictment for sex offenses, to submit to the involuntary taking of physical specimens from his person did not violate a state constitutional “right of personal security.” Holbrook v. Knopf, 847 S.W.2d 52, 1992 Ky. LEXIS 191 ( Ky. 1992 ).

53.Taking of Property.
54.— Eminent Domain.

The Eminent Domain statutes make no provisions for the jury to consider bad faith or fraud; any allegation of bad faith or fraud would necessarily have to come before the judge who would decide if it affects the state’s right to take. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

In eminent domain proceedings a court will deny the right to take only where there has been gross abuse or manifest fraud. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

55.Curfew.

Plaintiffs were entitled to summary judgment on their action challenging a city ordinance that imposed a curfew on all persons on streets or public places within the city limits during the early morning hours, because the objective of reducing vandalism and disturbing noise late at night did not justify an ordinance that prohibited the casual citizen from wandering the streets; because the city had not used narrowly tailored means to accomplish its legitimate goals of protecting property and public safety, the ordinance was unconstitutional and unenforceable. Embry v. City of Cloverport, 2004 U.S. Dist. LEXIS 1079 (W.D. Ky. Jan. 22, 2004).

56.DNA Database.

Collection of juveniles’ DNA samples pursuant to KRS 17.174 did not violate the juveniles’ constitutional rights to privacy under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 11. Petitioner F v. Brown, 2008 Ky. App. LEXIS 42 (Ky. Ct. App. Feb. 22, 2008, sub. op., 2008 Ky. App. Unpub. LEXIS 532 (Ky. Ct. App. Feb. 22, 2008).

Cited:

Adams Express Co. v. Kentucky, 238 U.S. 190, 35 S. Ct. 824, 59 L. Ed. 1267, 1915 U.S. LEXIS 1613 (U.S. 1915); Avent Beattyville Coal Co. v. Commonwealth, 96 Ky. 218 , 28 S.W. 502, 16 Ky. L. Rptr. 414 , 1894 Ky. LEXIS 1 17 ( Ky. 1 894); Bullock v. Commonwealth, 96 Ky. 537 , 29 S.W. 341, 16 Ky. L. Rptr. 621 , 1895 Ky. LEXIS 1 14 ( Ky. 1 895); Trustees of Kentucky Female Orphan School v. Louisville, 100 Ky. 470 , 36 S.W. 921, 19 Ky. L. Rptr. 1091 , 19 Ky. L. Rptr. 1916 , 1896 Ky. LEXIS 130 ( Ky. 1896 ); Stone v. Pryor, 103 Ky. 645 , 45 S.W. 1053, 20 Ky. L. Rptr. 312 , 1898 Ky. LEXIS 112 ( Ky. 1898 ); Nelson v. State Board of Health, 108 Ky. 769 , 57 S.W. 501, 22 Ky. L. Rptr. 438 , 1900 Ky. LEXIS 100 ( Ky. 1900 ); Early v. Rains, 121 Ky. 439 , 106 Mo. App. 684, 89 S.W. 289, 28 Ky. L. Rptr. 415 , 1905 Ky. LEXIS 224 ( Ky. 1905 ); Commonwealth use of Madisonville v. Price, 123 Ky. 163 , 94 S.W. 32, 29 Ky. L. Rptr. 593 , 1906 Ky. LEXIS 137 ( Ky. 1906 ); Orr v. Kevil, 124 Ky. 720 , 100 S.W. 314, 30 Ky. L. Rptr. 761 , 30 Ky. L. Rptr. 946 , 1907 Ky. LEXIS 249 ( Ky. 1907 ); Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 273 ( Ky. 1907 ); Hager v. Walker, 128 Ky. 1, 107 S.W. 254, 32 Ky. L. Rptr. 748 , 1908 Ky. LEXIS 29 ( Ky. 1908 ); Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 247 ( Ky. 1908 ); Fiscal Court of Owen County v. F. & A. Cox Co., 132 Ky. 738 , 117 S.W. 296, 1909 Ky. LEXIS 151 ( Ky. 1909 ); Commonwealth v. Morton, 140 Ky. 628 , 131 S.W. 506, 1910 Ky. LEXIS 340 ( Ky. 1910 ); Adams Express Co. v. Commonwealth, 154 Ky. 462 , 157 S.W. 908, 1913 Ky. LEXIS 96 ( Ky. 1913 ); Hager v. Robinson, 154 Ky. 489 , 157 S.W. 1138, 1913 Ky. LEXIS 129 ( Ky. 1913 ); Hahn v. Newport, 175 Ky. 185 , 194 S.W. 114, 1917 Ky. LEXIS 304 ( Ky. 1917 ); Morton v. Sanders, 178 Ky. 836 , 200 S.W. 24, 1918 Ky. LEXIS 467 ( Ky. 1918 ); Trustees of Graded Free Colored Common Schools v. Trustees of Graded Free White Common Schools, 180 Ky. 574 , 203 S.W. 520, 1918 Ky. LEXIS 114 ( Ky. 1918 ); McDaniel v. Commonwealth, 181 Ky. 766 , 205 S.W. 915, 1918 Ky. LEXIS 612 (Ky. 1918); Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 50 4 ( Ky. 1919 ); Purcell v. Lexington, 186 Ky. 381 , 216 S.W. 599, 1919 Ky. LEXIS 226 ( Ky. 1919 ); Jewell Tabacco Warehouse Co. v. Kemper, 206 Ky. 667 , 268 S.W. 324, 1925 Ky. LEXIS 1023 ( Ky. 1925 ); Votteler v. Fields, 232 Ky. 322 , 23 S.W.2d 588, 1926 Ky. LEXIS 1 ( Ky. 1926 ); People's Transit Co. v. Louisville R. Co., 220 Ky. 728 , 295 S.W. 1055, 1927 Ky. LEXIS 631 ( Ky. 1927 ); Campbell v. Commonwealth, 229 Ky. 264 , 17 S.W.2d 227, 1929 Ky. LEXIS 756 ( Ky. 1929 ); Mansbach Scrap Iron Co. v. Ashland, 235 Ky. 265 , 30 S.W.2d 968, 1930 Ky. LEXIS 338 ( Ky. 1930 ); Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ); McCown v. Gose, 244 Ky. 402 , 51 S.W.2d 251, 1932 Ky. LEXIS 441 ( Ky. 1932 ); Nourse v. Russellville, 257 Ky. 525 , 78 S.W.2d 761, 1935 Ky. LEXIS 53 ( Ky. 1935 ); Smith v. Board of Education, 264 Ky. 150 , 94 S.W.2d 321, 1936 Ky. LEXIS 285 ( Ky. 1936 ); Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ); Eagle v. Cox, 268 Ky. 58 , 103 S.W.2d 682, 1937 Ky. LEXIS 411 ( Ky. 1937 ); Martin v. Nocero Ice Cream Co., 269 Ky. 151 , 106 S.W.2d 64, 1937 Ky. LEXIS 543 (Ky. 1937); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 (Ky. 1937); Maryland Casualty Co. v. Newport Culvert Co., 277 Ky. 320 , 126 S.W.2d 468, 1939 Ky. LEXIS 657 ( Ky. 1939 ); Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 29 3 ( Ky. 1939 ); Dumesnil v. Reeves, 283 Ky. 563 , 142 S.W.2d 132, 1940 Ky. LEXIS 370 ( Ky. 1940 ); Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Crain v. Louisville, 298 Ky. 421 , 182 S.W.2d 787, 1944 Ky. LEXIS 890 ( Ky. 1944 ); Commonwealth ex rel. Howard v. Imperial Oil Co., 304 Ky. 705 , 202 S.W.2d 413, 1947 Ky. LEXIS 719 ( Ky. 1947 ); Reeves v. Wright & Taylor, 310 Ky. 470 , 220 S.W.2d 1007, 1949 Ky. LEXIS 950 ( Ky. 1949 ); Duke v. Smith, 253 S.W.2d 242, 1952 Ky. LEXIS 1070 ( Ky. 1952 ); Standiford Civic Club v. Commonwealth, 289 S.W.2d 498, 1956 Ky. LEXIS 285 ( Ky. 1956 ); Holland v. Commonwealth, 294 S.W.2d 83, 1956 Ky. LEXIS 113 ( Ky. 1956 ); General Electric Co. v. American Buyers Cooperative, Inc., 316 S.W.2d 354, 1958 Ky. LEXIS 42 ( Ky. 1958 ); Gray v. Wingo, 423 S.W.2d 517, 1968 Ky. LEXIS 483 ( Ky. 1968 ); Branzburg v. Meigs, 503 S.W.2d 748, 1971 Ky. LEXIS 50 ( Ky. 1971 ); Glasson v. Tucker, 477 S.W.2d 168, 1972 Ky. LEXIS 354 ( Ky. 1972 ); Lee v. Commonwealth, 565 S.W.2d 634, 1978 Ky. App. LEXIS 511 (Ky. Ct. App. 1978); Haynes v. McConnell, 642 S.W.2d 902, 1982 Ky. App. LEXIS 272 (Ky. Ct. App. 1982); Senay v. Commonwealth, 650 S.W.2d 259, 1983 Ky. LEXIS 247 ( Ky. 1983 ); Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ); Grzyb v. Evans, 700 S.W.2d 399, 1985 Ky. LEXIS 279 ( Ky. 1985 ); Singleton v. Commonwealth, 740 S.W.2d 159, 1986 Ky. App. LEXIS 1484 (Ky. Ct. App. 1986); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ); Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1990 U.S. App. LEXIS 4877 (6th Cir. Ky. 1990 ); Commonwealth v. Foley, 798 S.W.2d 947, 1990 Ky. LEXIS 121 ( Ky. 1990 ); State Bd. for Elementary & Secondary Educ. v. Howard, 834 S.W.2d 657, 1992 Ky. LEXIS 85 ( Ky. 1992 ); Capital Area Right to Life v. Downtown Frankfort, 862 S.W.2d 297, 1993 Ky. LEXIS 97 ( Ky. 1993 ).

Notes to Unpublished Decisions

1.Equal Protection.

Unpublished decision: KRS § 635.020(4) is constitutional and does not violate the equal protection clause because there is a rational basis for the statutory classification, and the statute does not violate the fair hearing requirement of case law and due process; thus, the court rejected defendant’s claim to the contrary, given that a preliminary hearing was held after which the trial court found probable cause to believe that defendant was 14 years of age when defendant committed a felony. Caldwell v. Commonwealth, 133 S.W.3d 445, 2004 Ky. LEXIS 77 ( Ky. 2004 ).

Opinions of Attorney General.

An ordinance imposing a curfew on minors would be valid if it was designed only to prevent minors from loitering or remaining or tarrying unnecessarily in public places during late hours. OAG 65-687 .

A city would have no authority to adopt an ordinance prohibiting the carrying of unconcealed weapons. OAG 74-73 .

In prohibiting an officer of the bureau of state police (now Department of State Police) from running for political office, KRS 16.170 is a reasonable exercise of the legislative power to promote the efficiency and integrity of the state police in discharging its public duties, and, as such, the prohibition against running for office does not violate the freedom of speech. OAG 75-713 .

A person has a right to bear arms in his own defense as long as he does not conceal them. OAG 78-25 .

Because KRS 186.230(9) does not provide any essential protection to the rights of creditors, but does severely restrict the individual’s use and disposition of his property, it is an unconstitutional infringement upon the right to acquire and protect property and to be free from any unreasonable restraint upon the use of property in violation of this section and Const., § 2. OAG 79-445 .

A real estate commission regulation which requires a realtor to advertise property in her broker’s name would, when applied to a realtor acting as an executrix, be an unconstitutional restraint on the alienation of property under this section, Const., § 2 and the Fourteenth Amendment to the United States Constitution, since it forces the heirs to list the testamentary real property with a particular broker contrary to their desire to sell it privately. OAG 82-36 .

A statute or regulation restricting the distribution on public property of leaflets and handbills promoting commercial or business activities is constitutional. OAG 82-165 .

While there are no reported Kentucky cases dealing specifically with whether local governments may enact gun control legislation in view of the seventh paragraph of this section, the experiences of many other states seems to indicate that the manner of bearing arms is subject to reasonable regulation by local governments under their police power. OAG 82-237 .

A statement by a school board candidate that he prefers a certain individual to serve as superintendent is protected by the first amendment of the United States Constitution and Ky. Const., § 1. OAG 92-156 .

An amendment to KRS 311.571 or any other provision in KRS Chapter 311 requiring a physician to treat any individual covered by a certain type of insurance is not rationally related to the legitimate state end of that chapter which is to protect the public from improperly trained or educated physicians. However, such a requirement contained in another portion of the KRS may withstand constitutional scrutiny if a court could be convinced that the requirement is rationally related to some legitimate state end. OAG 93-28 .

House Bill 359 (Acts 1994, ch. 30, § 1; codified as KRS 527.100 ) which restricts possession of handguns by minors is constitutional under both the Second Amendment to the Constitution of the United States and Ky. Const., § 7. OAG 94-14 .

Since the geographic areas occupied by university campuses are quite limited and given the fact that one has no absolute right to carry arms on the property of another, it is reasonable to conclude that a university ban on deadly weapons and destructive devices is not clearly contrary to that right to bear arms which is secured by the Seventh Clause of this section. OAG 96-40 .

The fact that the legislature in enacting subsection (1) of KRS 527.070 has elected not to criminalize the carrying of certain weapons on the property of institutions of postsecondary or higher education does not preclude the governing boards of public institutions of higher education from otherwise controlling the possession of deadly weapons on their properties. OAG 96-40 .

While KRS 237.115(1) recognizes the right of colleges and universities to control possession of deadly weapons, generally, on their properties, KRS 237.115(1) limits other units of state government, city governments, county governments, urban-county governments, and charter county governments to prohibiting only the carrying of concealed deadly weapons. The Kentucky General Assembly, therefore, has recognized that the governing board of a college or university of this Commonwealth has a right to control the possession of all deadly weapons on its properties, regardless of whether the weapons are concealed or carried openly. OAG 96-40 .

While the Seventh Clause of this section secures a right to bear arms, it does not define the scope of that right in absolute terms. OAG 96-40 .

University policy prohibiting possession or storage of deadly weapons or destructive devices on any university campus or in any facility owned, leased or operated by the University does not violate the Seventh Clause of this section. The policy therefore is not void pursuant to Const., § 26. OAG 96-40 .

The General Assembly may permit referenda on local school curriculum; however, in doing so, the General Assembly must not violate equal protection provisions and special and local legislation provisions of the Kentucky Constitution. OAG 00-3 .

Research References and Practice Aids

Cross-References.

Carrying concealed weapon, KRS 527.020 .

Concealed weapons, penalty for carrying, KRS 527.020 .

Free speech, right of, Const., § 8.

Religious freedom, right of Const., § 5.

Kentucky Bench & Bar.

Wiseman & Royse, More than Just a Sanctuary: The Impact of RLUIPA on Megachurches in the United States. Vol. 73, No. 1, January 2009, Ky. Bench & Bar 15.

Dady & Robinson, Citizens United: Death Knell for Campaign Reform? Vol. 76, No. 4, July 2012, Ky. Bench & Bar 20.

Kentucky Law Journal.

Comments, Pendleton v. Pendleton: An Equal Right of Inheritance for the Illegitimate?, 65 Ky. L.J. 712 (1976-77).

Kentucky Law Survey: Savage, Insurance, 66 Ky. L.J. 631 (1977-1978).

Gormley and Hartman, The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky. L.J. 1 (1990-91).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Roach, Rule of Men, 81 Ky. L.J. 483 (1992-93).

Fine, Beware That False First Step, 82 Ky. L.J. 731 (1993-94).

Article: A Dangerous Undertaking Indeed: Juvenile Humor, Raunchy Jokes, Obscene Materials and Bad Taste in Copyright, 98 Ky. L.J. 517 (2009/2010).

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

Kazee, The Sherman Act and the Arbitrary Power Section of the Kentucky Constitution As Applied to Kentucky Fair Trade Laws, 20 N. Ky. L. Rev. 297 (1993).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

General Law Issue: Note: Doninger v. Niehoff: “Tinker is Online and in Trouble”, see 36 N. Ky. L. Rev. 185 (2009).

§ 2. Absolute and arbitrary power denied.

Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.

NOTES TO DECISIONS

Analysis

1.In General.

Law that required immediate payment of assessments averaging less than 25 cents an acre, and provided that where the assessments exceed that sum a delay of 30 days after notice should be deemed a consent to issuance of bonds, was invalid as authorizing the deprivation of property without due process contrary to this section, Const., § 14, and United States Const., Amend. 14. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 19 15). See Henshaw v. Holt, 262 Ky. 19 , 89 S.W.2d 313, 1935 Ky. LEXIS 762 ( Ky. 1935 ).

Where legislature could properly prohibit certain acts entirely, it may provide that the acts cannot be done without the consent of named individuals or classes, and the fact that the acts may be done in one case and not in another, depending upon the whim of the individual or class having the consent power, does not render the law void as an unlawful delegation of legislative power. Whitaker v. Green River Coal Co., 276 Ky. 43 , 122 S.W.2d 1012, 1938 Ky. LEXIS 529 ( Ky. 1938 ).

The action of the government may not arbitrarily invade liberty or property rights under guise of police regulation. Bond Bros. v. Louisville & Jefferson County Metropolitan Sewer Dist., 307 Ky. 689 , 211 S.W.2d 867, 1948 Ky. LEXIS 805 ( Ky. 1948 ), cert. denied, 339 U.S. 943, 70 S. Ct. 796, 94 L. Ed. 1358, 1950 U.S. LEXIS 2086 (U.S. 1950).

This section is a curb on the legislative as well as on any other public body or public officer in the assertion or attempted exercise of political power. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ); Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ).

Whatever is contrary to democratic ideals, customs and maxims is arbitrary. Likewise, whatever is essentially unjust and unequal or exceeds the reasonable and legitimate interests of the people is arbitrary. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Policy choices made by government, even if in reality they are political actions, do not violate this section as being arbitrary if they are not otherwise in conflict with constitutional principles. White v. Danville, 465 S.W.2d 67, 1971 Ky. LEXIS 433 ( Ky. 1971 ).

If a law’s provisions were reasonable, the law was not arbitrary. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

Where the constitutionality of ordinance was not submitted to the trial court, the award of permanent injunction and writ of prohibition on the ground that the enforcement of the ordinance would be in violation of Const., §§ 2 and 19 was error. Bowling Green v. Gasoline Marketers, Inc., 514 S.W.2d 685, 1974 Ky. LEXIS 326 ( Ky. 1974 ).

In order to invoke the fundamental protections against the unfair administration of a law that is not itself unconstitutional the unequal treatment must amount to a conscious violation of the principle of uniformity. Standard Oil Co. v. Boone County Board of Supervisors, 562 S.W.2d 83, 1978 Ky. LEXIS 319 ( Ky. 1978 ).

Neither peculiar individual hardship (which might involve cost) nor difficulty in compliance is sufficient constitutional objection unless the public interest at stake is shown to have no reasonable relationship to the regulatory program. Boyle County Stockyard Co. v. Commonwealth, Dep't of Agriculture, 570 S.W.2d 650, 1978 Ky. App. LEXIS 578 (Ky. Ct. App. 1978).

Unequal enforcement of the law, if it rises to the level of conscious violation of the principle of uniformity, is prohibited by this section. Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ).

It is not a constitutional violation for ALJs or the Commissioner of the Workers’ Compensation Board not to have a set of guidelines or criteria by which to enforce KRS 342.0011(11). The 14th Amendment of the U.S. Constitution and the Prohibition Against Arbitrary Powers of Section Two of the Kentucky Constitution provide no right of action because all workers are treated the same; and, no due process rights are violated because workers are allowed a hearing at which they may testify, present evidence, and cross-examine physicians testifying for the defense and because they are afforded an exhaustive review process. Miller v. East Ky. Beverage/Pepsico, 951 S.W.2d 329, 1997 Ky. LEXIS 95 ( Ky. 1997 ).

A defendant convicted of rape and related charges was not deprived of due process under the Kentucky Constitution because of the Commonwealth’s negligent failure to collect as evidence a towel produced by the victim’s mother and allegedly containing the appellant’s semen. The Court applied the “bad faith” test of Arizona v. Youngblood, finding that the defendant failed to show “any ill motive or intention on the part of the Commonwealth in failing to collect the towel”; further, the fact that the jury had been instructed that they might infer that the towel evidence would be in favor of the defendant if such towel existed and the Commonwealth failed to collect it as evidence provided “more than the process due.” Collins v. Commonwealth, 951 S.W.2d 569, 1997 Ky. LEXIS 103 ( Ky. 1997 ).

2.Purpose.

This section has to do only with the exercise of arbitrary power over the lives, liberty, and property of individuals, and not with the handling of state property or funds. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

This section was intended to protect citizens against actions which are essentially unjust, unequal and in excess of the legitimate interest of the people. Louisville Shopping Center, Inc. v. St. Matthews, 635 S.W.2d 307, 1982 Ky. LEXIS 266 ( Ky. 1982 ).

3.Scope.

This section is broad enough to embrace the traditional concepts of both due process of law and equal protection of the law. Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ).

The “cost of production” includes the cost of raw materials as well as the cost of processing; thus, a vegetable oil refining and distribution company was required to include the cost of the crude oil itself in its cost of production for the purposes of the revenue statute. Also, the fact that the cost-of-energy computation must be made on the basis of plant facilities at one (1) location does not serve to limit taxpayer’s production costs. Further, the statute does not violate the equal protection provisions of the Kentucky Constitution because a processor of bought materials is not similarly situated to a processor of materials owned by others or a processor of its own materials. Louisville Edible Oil Prods. v. Revenue Cabinet Commonwealth, 957 S.W.2d 272, 1997 Ky. App. LEXIS 81 (Ky. Ct. App. 1997).

Where a state employee sued the Kentucky Transportation Department, its former deputy secretary, and the state republican party pursuant to 42 USCS § 1983, alleging that defendants conspired in an illegal patronage system that adversely affected his employment and violated his federal and state constitutional rights and state law, claims against the republican party had to be dismissed because his complaint failed to identify any legal basis for his wrongful discharge claim and Ky. Const. § 2 did not apply to private actors. Gritton v. Disponett, 2006 U.S. Dist. LEXIS 63611 (E.D. Ky. Sept. 6, 2006), aff'd, 332 Fed. Appx. 232, 2009 FED App. 0372N, 2009 U.S. App. LEXIS 11343 (6th Cir. Ky. 2009 ).

As the Deer Feeding Ordinance gave persons of ordinary intelligence a reasonable opportunity to know what was prohibited, so they could act accordingly, it was not unconstitutionally vague. Sheffield v. City of Fort Thomas, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

State supreme court did not need to apply the Fifth Amendment, U.S. Const. amend. V, which was made applicable to the states through the Fourteenth Amendment, Ky. Const. § 2 involving exercises of power, or Ky. Const. § 11 regarding the right against self-incrimination in answering the question about whether the trial court could hold a revocation of probation hearing on new, unresolved charges. Under its supervisory authority based on Ky. Const. § 110, Ky. Const. § 115, and Ky. Const. § 116, the state supreme court could craft a rule recognizing that it was not necessary that a conviction occur before a probation revocation hearing could be held, but the trial court had to make a probationer aware that while the testimony in such a hearing could not be used as substantive evidence in a criminal proceeding, such testimony could be used for other purposes, such as impeachment. Barker v. Commonwealth, 379 S.W.3d 116, 2012 Ky. LEXIS 132 ( Ky. 2012 ).

Circuit court properly granted an inmate summary judgment in his action for declaratory and injunctive relief and held that the statute at issue was unconstitutional because the statute failed to describe the conduct that would subject the inmate to a close or maximum classification subsequently subjecting him to post-incarceration supervision, he was denied counsel in a “critical stage” in the prosecution, a hearing was not held, the statute failed to provide reasonably clear guidelines for the Department of Corrections (DOC) to follow, and allowed the DOC, an executive agency, to encroach on powers expressly enumerated to the judicial branch by issuing a criminal sentence resulting in incarceration without judicial review. Ky. Dep't of Corr. v. Mitchem, 586 S.W.3d 256, 2019 Ky. App. LEXIS 168 (Ky. Ct. App. 2019).

4.Administrative Law.

Provision of personnel commission act providing that members may remove director for cause was not violative of this section as the director is a ministerial officer. Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ).

Veterans’ bonus law provision (KRS 40.120 ) that there would be no recourse to courts by claimant whose application was denied by administrator of such law was not invalid under this section, since claims were reviewable before review board, and since courts were always available for relief from arbitrary exercise of power. Watkins v. State Property & Bldgs. Com., 342 S.W.2d 511, 1960 Ky. LEXIS 94 ( Ky. 1960 ).

In interdepartmental dispute, personnel board could conduct hearing without scope thereof regulated by court, since any arbitrary decision by such board would be violative of this section and entitle administrative parties involved to judicial review, notwithstanding statutory mandate to contrary in KRS 18.270 (now see KRS 18A.095 ). Pritchett v. Marshall, 375 S.W.2d 253, 1963 Ky. LEXIS 187 ( Ky. 1963 ).

There was inherent right of appeal from orders of administrative agency where constitutional rights were involved, and within scope of such review was court’s determination whether such agency acted in excess of its statutory powers and thus in violation of this section. American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Com., 379 S.W.2d 450, 1964 Ky. LEXIS 240 ( Ky. 1964 ), limited, Osborne v. Bullitt County Bd. of Educ., 415 S.W.2d 607, 1967 Ky. LEXIS 325 ( Ky. 1967 ), limited, Brady v. Pettit, 586 S.W.2d 29, 1979 Ky. LEXIS 280 ( Ky. 1979 ).

Failure to grant administrative relief to one carrying the burden is arbitrary if the record compels a contrary decision in light of substantial evidence therein. Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 836, 1994 Ky. App. LEXIS 36 (Ky. Ct. App. 1994).

5.Administrative Hearings.

In a trial-type adjudicatory hearing before an administrative body, the right of cross-examination is required by due process of law. Kaelin v. Louisville, 643 S.W.2d 590, 1982 Ky. LEXIS 325 ( Ky. 1982 ).

This section was not compromised by prison adjustment committees disciplinary finding that defendant was guilty on basis of some evidence standard of review. Smith v. O'Dea, 939 S.W.2d 353, 1997 Ky. App. LEXIS 9 (Ky. Ct. App. 1997).

Bifurcated hearings regarding post-mining land use violations and the penalty assessed, did not satisfy fundamental due process by operating under a double standard of access to an administrative forum; thus, insofar as they exacted a monetary pre-requisite prior to the penalty phase hearing, both KRS 350.0301 and 405 KAR 7:092 were unconstitutional violations of due process, equal protection, and the ban against arbitrary state action contained in Ky. Const., § 2. Kentec Coal Co. v. Commonwealth, 2003 Ky. App. LEXIS 179 (Ky. Ct. App. July 25, 2003), aff'd, 177 S.W.3d 718, 2005 Ky. LEXIS 303 ( Ky. 2005 ).

Where the doctor’s application for reinstatement of the doctor’s license to practice medicine, which complied with KRS 311.607 , was denied by the Kentucky Board of Medical Licensure, the doctor was entitled to review under Ky. Const., § 2, regardless of whether there was a statutory procedure established for that purpose. Shamaeizadeh v. Ky. Bd. of Med. Licensure, 2006 Ky. App. LEXIS 20 (Ky. Ct. App. Jan. 27, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 1229 (Ky. Ct. App. Jan. 27, 2006).

Where a store was disqualified from participating in the WIC program, the Kentucky Cabinet for Health and Family Services irrationally limited the store’s due process rights under Ky. Const. § 2 by granting the store an opportunity for a hearing but not allowing review of the central issue in the case. The circuit court correctly held that the store was subject to a waiver from disqualification to avoid inadequate participant access. Commonwealth v. Gambrel's Food Mart, Inc., 2009 Ky. App. LEXIS 150 (Ky. Ct. App. Aug. 28, 2009).

In a case in which a company challenged a decision of the Kentucky Board of Housing, Buildings and Construction not to approve the company’s plumbing device, the company was not denied the minimum standards for procedural due process where the company had presented the device for approval in Kentucky on at least eleven occasions, and where the record indicated that the company was provided the opportunity to present evidence. An unfavorable outcome to the company did not equate to a denial of due process under the law. Studor, Inc. v. Commonwealth, 390 S.W.3d 145, 2012 Ky. App. LEXIS 70 (Ky. Ct. App. 2012).

Denial of unemployment benefits to the employee was inappropriate because he was not given the chance to meaningfully present his evidence and he was denied his meaningful opportunity to be heard since he was prohibited from collecting evidence to be used during his hearing. He was denied a subpoena and a continuance and that was an arbitrary denial of due process; the employee should have been granted his subpoena, or at least given a continuance in order to try to obtain another subpoena. Hicks v. Ky. Unemployment Ins. Comm'n, 390 S.W.3d 167, 2013 Ky. App. LEXIS 6 (Ky. Ct. App. 2013).

6.Administrative Agency.

An administrative agency is prohibited from acting in an arbitrary manner by this section. Bunch v. Personnel Bd., Commonwealth, 719 S.W.2d 8, 1986 Ky. App. LEXIS 1469 (Ky. Ct. App. 1986).

Where a Personnel Board’s findings of fact regarding criteria used for a hiring decision were supported by substantial evidence and the Board applied the correct rule of law to its factual findings, the final order of the Board was required to be upheld as this section prohibits the exercise of arbitrary power by an administrative agency and judicial review by the Court of Appeal of the administrative agency’s action did not find the Board’s decision to be arbitrary. Bowling v. Natural Resources & Envtl. Protection Cabinet, 891 S.W.2d 406, 1994 Ky. App. LEXIS 157 (Ky. Ct. App. 1994).

Unsuccessful state job applicant’s claim that the Personnel Board’s order to re-open the position because the statutory and regulatory procedure of KRS 18A.005 was not properly followed failed to provide her with the complete relief to which she was entitled which was promotion to the position, was without merit as there was substantial evidence to support the Board’s finding, therefore, it was not arbitrary under this section and must be affirmed. Bowling v. Natural Resources & Envtl. Protection Cabinet, 891 S.W.2d 406, 1994 Ky. App. LEXIS 157 (Ky. Ct. App. 1994).

Bid protestor has standing to challenge a contract award and an actual case or controversy exists in spite of the underlying contract’s expiration. Since the Kentucky Model Procurement Code (KMPC) and Kentucky law affords judicial review of administrative actions if an award is arbitrary, capricious, or made in violation of the KMPC, the matter is not moot despite the contract having expired. Lab. Corp. of Am. Holdings v. Rudolph, 184 S.W.3d 68, 2005 Ky. App. LEXIS 169 (Ky. Ct. App. 2005).

An administrative subpoena issued to a corporation pursuant to an investigation of securities fraud was not arbitrary administrative action when the inquiry was within the authority of the agency, the demand was not too indefinite, and the information sought was reasonably relevant. Target Oil & Gas Corp. v. Commonwealth, 2006 Ky. App. LEXIS 156 (Ky. Ct. App. May 26, 2006), review denied, ordered not published, 2007 Ky. LEXIS 47 (Ky. Feb. 14, 2007).

Circuit court erred in affirming a decision of the Kentucky Occupational Safety and Health Review Commission (Tribunal) because the Tribunal acted outside its role as a neutral administrative arbiter; the Tribunal relied on a regulation the Kentucky Occupational Safety and Health Standards Board never endorsed, and thus, it effectively expanded the kinds of complaints protected by the Kentucky Occupational Safety and Health Act which was a usurpation of the Board's policy-making authority. Estill County Fiscal Court v. Commonwealth, 2015 Ky. App. LEXIS 24 (Ky. Ct. App. Feb. 27, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 865 (Ky. Ct. App. Feb. 27, 2015).

7.Alcoholic Beverages.

The state cannot make the possession of intoxicating liquors for an innocent purpose unlawful, and an act prohibiting the keeping and possession of intoxicating liquors construed as applying to keeping and possession though not for purpose of sale is unconstitutional. Commonwealth v. Smith, 163 Ky. 227 , 173 S.W. 340, 1915 Ky. LEXIS 192 ( Ky. 1915 ) ( Ky. 1915 ).

The state under the police power may, through delegated agencies, vest wide discretion and regulatory authority in them concerning the traffic in alcoholic liquors, but such discretion may not be extended so as to infringe upon this section of the Constitution. Alcoholic Beverage Control Board v. Hall, 297 Ky. 432 , 180 S.W.2d 293, 1944 Ky. LEXIS 743 ( Ky. 1944 ).

KRS 244.080 , 244.380 (now repealed), 244.390 (now repealed), 244.400 (now repealed), 244.410 (now repealed) and 244.470 (now repealed), governing sale of alcoholic beverages, provide for a system of resale pricing that conflicts with the Sherman Antitrust Act (15 USCS § 1 et seq.) as that act has come to be construed by the United States Supreme Court, but do not violate Const., § 1 or this section. Alcoholic Beverage Control Bd. v. Taylor Drug Stores, Inc., 635 S.W.2d 319, 1982 Ky. LEXIS 269 ( Ky. 1982 ).

8.Annexation.

While recognizing right of city of first class to annex adjacent territory, law that required the city, on annexation of a sanitation district, to assume the revenue bond obligations of the district to be paid out of general funds of the city, which obligations would make city’s debt exceed limitation set out in Const., § 157, had effect of making annexation prohibitive, and therefore was unconstitutional as being arbitrary. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Where appellant in remonstrance alleged that inclusion of property within town boundaries was for the purpose of imposing taxation upon appellant for the benefit of the other residents of the town without any benefits to the appellant or the town except for additional revenue, inclusion of the property within the boundaries of the town under these conditions would deprive appellant of its property without just compensation in violation of Const., § 13 and would constitute an exercise of arbitrary power over the property of appellant in violation of Const., § 2. Chesapeake & O. R. Co. v. Silver Grove, 249 S.W.2d 520, 1952 Ky. LEXIS 817 ( Ky. 1952 ).

KRS 81.190 (now repealed), which provided for annexation by cities of third class, did not violate this section or Const., § 59. Yount v. Frankfort, 255 S.W.2d 632, 1953 Ky. LEXIS 676 ( Ky. 1953 ).

KRS 81A.510 does not violate this section of the Constitution. White v. Danville, 465 S.W.2d 67, 1971 Ky. LEXIS 433 ( Ky. 1971 ).

The annexation of property by a municipality is a political act within the exclusive control of the legislature and that body may enact any reasonable statutory procedures necessary in the premises. White v. Danville, 465 S.W.2d 67, 1971 Ky. LEXIS 433 ( Ky. 1971 ).

KRS 81A.420 , providing for annexation elections, enhances the rights of the people to overcome a decision which they view to be inimical to their interests, and clearly is not a violation of this section. Louisville Shopping Center, Inc. v. St. Matthews, 635 S.W.2d 307, 1982 Ky. LEXIS 266 ( Ky. 1982 ).

KRS 81A.420 , providing for annexation elections, does not grant power over the “liberty and property” of citizens, but simply enables a minimum of 75 percent of the voters in an affected area to nullify the actions of a city legislative body through the process of referendum. Louisville Shopping Center, Inc. v. St. Matthews, 635 S.W.2d 307, 1982 Ky. LEXIS 266 ( Ky. 1982 ).

9.Appointed Officers.

Law could constitutionally give governor power to remove his appointed officers for any sufficient cause at his discretion. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

10.Arbitration.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the provisions of Ky. Const. § 2 by failing to provide for meaningful judicial review of arbitration decisions because KRS 417.160 and KRS 417.170 provided for such review, and the level of judicial review provided was consistent with the underlying purposes of arbitration generally, one of which was to avoid the time and expense involved with courtroom litigation. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

11.Attorneys.
12.— Disbarment.

Power of court to determine issue of disbarment of attorney was not arbitrary in violation of this section. In re Sparks, 267 Ky. 93 , 101 S.W.2d 194, 1936 Ky. LEXIS 757 ( Ky. 1936 ).

13.— Fees.

That part of former law which provided for allowance of reasonable attorney’s fees by woman or minor worker in civil action to recover wages due under minimum fair-wage order was not so lacking in justification as to constitute arbitrariness in violation of this section. Owens v. Clemons, 408 S.W.2d 642, 1966 Ky. LEXIS 131 ( Ky. 1966 ).

Commutation of future payments to pay a claimant’s attorney’s fee is not an exercise of arbitrary power and the procedure does not violate this section, nor does it deprive the employers or the special fund of property without due process of law as guaranteed by the Fourteenth Amendment, because when the claimant petitions the board to approve the attorney’s fee and to commute his final payment to a lump sum to pay this obligation, the end point of the indefinite award is fixed by life expectancy on the date of injury and the requisite payment may be commuted. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

14.Bonds and Bail.

Where the defendant had been released on bond but after a change of venue the judge of the court to which venue was changed, on his own motion, held a hearing and revoked the bond although there was evidence that the offense might have been committed in self-defense, the defendant was entitled to bail in a reasonable amount not to exceed the amount originally fixed. Marcum v. Broughton, 442 S.W.2d 307, 1969 Ky. LEXIS 263 ( Ky. 1969 ).

15.City Councils.

City council could not be conferred with any arbitrary powers. Slaughter v. Post, 214 Ky. 175 , 282 S.W. 1091, 1926 Ky. LEXIS 298 ( Ky. 1926 ).

A statute empowering city council to require contractor to perfect public work or modify cost should not be construed to give right to reject entire estimate, as such would be violative of this section. Earlington v. Powell, 226 Ky. 353 , 10 S.W.2d 1060, 1928 Ky. LEXIS 77 ( Ky. 1928 ).

16.Condemnation.

Court would not invoke its power against administrative agency’s discretion in determining what was in public interest, including what particular property was needed for valid public project, absent such clear and gross abuse of such discretion as would violate this section. Commonwealth Dep't of Highways v. Vandertoll, 388 S.W.2d 358, 1964 Ky. LEXIS 538 (Ky. Ct. App. 1964). See Commonwealth, Dep't of Highways v. Burchett, 367 S.W.2d 262, 1963 Ky. LEXIS 19 ( Ky. 1963 ).

The constitutional restrictions against the taking of property without compensation have no application to the situation where the highway department refuses to allow an abutting property owner to build a structure over the highway. Commonwealth, Dep't of Highways v. Trimble, 451 S.W.2d 641, 1969 Ky. LEXIS 18 ( Ky. 1969 ).

Where more land was condemned than was actually needed or used by the highway department but where the department claimed it might be needed at some future time, absent a showing that there was such a clear and gross abuse of discretion as to offend the guaranty of this section against the exercise of arbitrary power, the judicial power of government should not be invoked. Maze v. Commonwealth, Department of Highways, 461 S.W.2d 72, 1970 Ky. LEXIS 603 ( Ky. 1970 ).

City housing code provision was an unconstitutional violation of this section, where housing code mandated that if cost of repairs to building exceeded total value of building, building had to be demolished. Washington v. City of Winchester, 861 S.W.2d 125, 1993 Ky. App. LEXIS 122 (Ky. Ct. App. 1993).

A committee of judges designated to represent a sanitation district under KRS 220.035 did not act arbitrarily in violation of Ky. Const. § 2 when it approved the acquisition of land and raised a taxpayer’s rates because the committee heard extensive arguments from several interested parties prior to approving the acquisition of the property; thus, the evidence was overwhelming that the committee’s decision was based on a professional, impartial, and comprehensive analysis. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

The judicial power of government should not be invoked against the discretion of an agency of the executive branch in determining what is in the public interest, including what particular property is needed in connection with a valid public project, unless there is such a clear and gross abuse of that discretion as to offend the guaranty of Ky. Const. § 2 against the exercise of arbitrary power; thus, a court was unable to conclude that a gross abuse or manifest fraud took place in respect to a sanitation district’s decision to condemn a certain amount of the property owners’ land. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

In a condemnation proceeding, there was no showing of bad faith or arbitrariness under Ky. Const. § 2 because the record reflected that a utilities company properly studied alternate locations and that the Kentucky Public Service Commission rejected the proposed alternate locations submitted by several owners. Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

17.Criminal Convictions.

Application of habitual criminal statute to defendant, who was second person convicted under it in his county, was not violative of this section. Lloyd v. Jones, 344 S.W.2d 618, 1961 Ky. LEXIS 242 ( Ky. 1961 ).

In a criminal prosecution, results from a DNA test establishing a likelihood of 99.74 percent that defendant was the father of the victim’s child was admissible, and it did not lessen the prosecution’s burden of proof in violation of Ky. Const. §§ 2, 11, although the test used a .5 prior probability statistic. Butcher v. Commonwealth, 96 S.W.3d 3, 2002 Ky. LEXIS 224 ( Ky. 2002 ), cert. denied, 540 U.S. 864, 124 S. Ct. 174, 157 L. Ed. 2d 116, 2003 U.S. LEXIS 6842 (U.S. 2003).

Verdict convicting defendant of drug trafficking was not unanimous in violation of Ky. Const. §§ 2, 7, 11 and RCr 9.82(1), because the trial court erroneously instructed the jury regarding intent to manufacture or dispense drugs, where there was insufficient evidence to establish this. Commonwealth v. Whitmore, 92 S.W.3d 76, 2002 Ky. LEXIS 231 ( Ky. 2002 ).

Defendant’s conviction for criminal mischief and disorderly conduct was affirmed as: (1) the police officers had a legal right to be on the premises as they were there in response to a 911 call of domestic violence, (2) there was ample evidence to indicate that the potential for domestic violence existed, (3) after locating defendant, the police acted reasonably in asking him to step out of an abandoned vehicle so that they could determine whether he was a threat, (4) defendant’s repeated refusals to cooperate, his reaching under the seat, and his desire to let loose his dog caused the officers to remove him forcibly from the vehicle, and (5) defendant was handcuffed and placed in the police cruiser because he was prohibiting the officers from carrying out their duty under KRS 403.785 , not because the officers were attempting to place him under arrest. Poe v. Commonwealth, 201 S.W.3d 37, 2006 Ky. App. LEXIS 258 (Ky. Ct. App. 2006).

In a murder case, discovery failures by the Commonwealth did not amount to arbitrary state action in violation of the Kentucky Constitution, and did not entitle defendant to dismissal of his indictment with prejudice; at any rate, defendant already received appropriate judicial remedies in the form of a mistrial and exclusion of evidence. Pettway v. Commonwealth, 470 S.W.3d 706, 2015 Ky. LEXIS 1862 ( Ky. 2015 ).

18.Double Jeopardy.

Second and separate prosecution for same offense of which defendant had been previously convicted or acquitted would amount to harassment and arbitrary treatment in violation of this section. Huff v. Commonwealth, 406 S.W.2d 831, 1966 Ky. LEXIS 219 ( Ky. 1966 ).

Trial court did not have the power to increase defendant’s sentence from 10 years in prison to 20 years in prison as a condition of granting defendant’s request for shock probation, and the state supreme court reversed the trial court’s judgment revoking defendant’s probation and sentencing defendant to 20 years in prison, and directed the trial court to enter a new order which reinstated the sentence of 10 years in prison which the trial court originally imposed. Stallworth v. Commonwealth, 102 S.W.3d 918, 2003 Ky. LEXIS 83 ( Ky. 2003 ).

19.Elections.

Legislatively created election commissioners could not be conferred with power of contest of elections under this section. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901 ).

KRS 118.176 permits a Circuit Court to consider and adjudicate challenges to a candidate’s bona fides that are commenced prior to the general election, and had jurisdiction to determine that due to that candidate’s failure to meet the residency requirements of Ky. Const., § 32, she was disqualified. Stephenson v. Woodward, 182 S.W.3d 162, 2005 Ky. LEXIS 391 ( Ky. 2005 ).

20.Regulation of Property Use.

It was unconstitutionally arbitrary to provide by law that owners of two-thirds (2/3) of residential block property had to consent before one could establish filling station therein. McCown v. Gose, 244 Ky. 402 , 51 S.W.2d 251, 1932 Ky. LEXIS 441 ( Ky. 1932 ).

Where the administrative and legislative bodies of the city acted arbitrarily in rezoning a parcel of property, the ordinance effectuating the zoning was void. Fallon v. Baker, 455 S.W.2d 572, 1970 Ky. LEXIS 265 ( Ky. 1970 ).

A legislative body’s action on a zoning case will not be found “arbitrary” where the decision was made on the basis of appropriate findings of either the zoning commission or the legislative body which are supported by substantial evidence adduced at a trial-type hearing. Louisville v. McDonald, 470 S.W.2d 173, 1971 Ky. LEXIS 268 ( Ky. 1971 ).

This section’s guarantee against “arbitrary” action requires a legislative body, when acting on the recommendations of the zoning commission while considering an application for a zoning change, to fulfill due process requirements by acting on the basis of a record and on the basis of substantial evidence. Louisville v. McDonald, 470 S.W.2d 173, 1971 Ky. LEXIS 268 ( Ky. 1971 ).

Where a board of aldermen did not hold a trial-type hearing in an application for a zoning classification change, and where the adjudicative facts found by the zoning commission do not support the aldermen’s action, the board of aldermen acted arbitrarily in violation of this section. Louisville v. McDonald, 470 S.W.2d 173, 1971 Ky. LEXIS 268 ( Ky. 1971 ).

Naked and unconditional governmental power to compel a citizen to surrender his productive and attractive property to another citizen who would use it predominantly for his own private profit just because such alternative private use has been thought to be preferable in the subjective notion of governmental authorities would be repugnant to the constitutional protections whether they be cast in the fundamental fairness component of due process or in the prohibition against the exercise of arbitrary power. Owensboro v. McCormick, 581 S.W.2d 3, 1979 Ky. LEXIS 252 ( Ky. 1979 ).

Because a phrase in a county zoning ordinance was “may not” rather than “may,” no discretion was permitted, and the constitutionality of the ordinance was not implicated. Stringer v. Realty Unlimited, Inc., 97 S.W.3d 446, 2002 Ky. LEXIS 181 ( Ky. 2002 ).

21.Taking of Property.

Regulation requiring brucellosis tests for livestock at stockyards was not an unreasonable taking of property and did not violate this section. Boyle County Stockyard Co. v. Commonwealth, Dep't of Agriculture, 570 S.W.2d 650, 1978 Ky. App. LEXIS 578 (Ky. Ct. App. 1978).

22.Zoning Procedures.

Procedural due process is required in proceedings before a zoning board. The requisite procedural elements are a hearing, the taking and weighing of evidence, a finding of fact based upon an evaluation of the evidence and conclusions supported by substantial evidence. Kaelin v. Louisville, 643 S.W.2d 590, 1982 Ky. LEXIS 325 ( Ky. 1982 ).

Ordinances that prohibited subdivision of tracts of land into nonagricultural lots, for resale, and/or with the inclusion of one or more new streets, were not unconstitutionally vague; the ordinances provided fair notice and a mechanism for review by the Planning Commission, and the standards for its enforcement were sufficiently clear to avoid arbitrary and discriminatory application. Campbell County Fiscal Court v. Nash, 2008 Ky. App. LEXIS 373 (Ky. Ct. App. Dec. 12, 2008), review granted, transferred, 2010 Ky. LEXIS 40 (Ky. Jan. 13, 2010), aff'd in part and rev'd in part, 345 S.W.3d 811, 2011 Ky. LEXIS 57 ( Ky. 2011 ).

Since the ordinances adopted by the Planning Commission stated that any subdivider claiming to be aggrieved by any actions of the Planning Commission’s duly authorized representative may appeal such actions to the Planning Commission, and since KRS 100.347 provided for an appeal from the final action of the Planning Commission to the Circuit Court, a review mechanism was set in place; thus, on its face, the subdivision review process did not appear arbitrary or violative of due process as contemplated by Ky. Const. § 2. Campbell County Fiscal Court v. Nash, 2008 Ky. App. LEXIS 373 (Ky. Ct. App. Dec. 12, 2008), review granted, transferred, 2010 Ky. LEXIS 40 (Ky. Jan. 13, 2010), aff'd in part and rev'd in part, 345 S.W.3d 811, 2011 Ky. LEXIS 57 ( Ky. 2011 ).

23.Habeas Corpus.

In action for discharge under habeas corpus writ, conviction and imprisonment of defendant could not be held violative of this section where there was no appeal in which sufficiency of proof of guilt could have been reviewed, and no basis for argument that conviction was void. Hines v. Commonwealth, 357 S.W.2d 843, 1962 Ky. LEXIS 143 ( Ky. 1962 ).

24.Incompetency.

Under this section, person cannot be declared incompetent and have his property taken out of his hand or be placed in confinement without intervention of jury and jury verdict declaring such person to be non sui juris. Hager v. Pacific Mut. Life Ins. Co., 43 F. Supp. 22, 1942 U.S. Dist. LEXIS 3145 (D. Ky. 1942 ).

25.Liens.

KRS 376.280 providing for sale of automobile by lienor with newspaper notice of sale only was not violative of this section. Willis v. La Fayette-Phoenix Garage Co., 202 Ky. 554 , 260 S.W. 364, 1924 Ky. LEXIS 759 ( Ky. 1924 ).

26.Appropriations.

This section has no connection with the appropriation of public funds, and provision of appropriation bill giving governor power to determine use to which certain appropriations shall be put does not violate this section. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

27.Mines.

KRS 352.490 , relating to mining within twenty-five (25) feet of a property line, does not violate this section. Whitaker v. Green River Coal Co., 276 Ky. 43 , 122 S.W.2d 1012, 1938 Ky. LEXIS 529 ( Ky. 1938 ).

28.Licensing.

Where city ordinance of fourth-class city providing for licensing of places of entertainment where sandwiches and soft drinks were dispensed did not prescribe any standards or qualifications for applicants for licenses, city clerk had no authority, on instructions of mayor, to deny a license to an applicant, regardless of mayor’s commendable motives and regardless of bad reputation of applicant’s place of business. Pineville v. Helton, 300 Ky. 170 , 188 S.W.2d 101, 1945 Ky. LEXIS 509 ( Ky. 1945 ).

Minister’s license to perform marriages could be revoked by county court without violation of this section. Ladd v. Commonwealth, 313 Ky. 754 , 233 S.W.2d 517, 1950 Ky. LEXIS 975 ( Ky. 1950 ).

City ordinance requiring licensing of junkyards was unconstitutional under this section to extent it required mayor’s approval of location of junkyard without prescribing standards to guide him. Turner v. Peters, 327 S.W.2d 958, 1959 Ky. LEXIS 88 ( Ky. 1959 ).

Mere direction in automobile trailer park licensing ordinance that board of commissioners should take into consideration factors of topography and density of population and of location supplied no standard at all, and thus constituted effort to vest absolute and arbitrary power in such board in violation of this section. Schneider v. Wink, 350 S.W.2d 504, 1961 Ky. LEXIS 114 ( Ky. 1961 ).

Where city ordinance gave to the city council the uncontrolled discretion to grant or deny licenses for public dance halls, it was a grant of arbitrary power and consequently was invalid under Const., § 2. Bruner v. Danville, 394 S.W.2d 939, 1965 Ky. LEXIS 236 ( Ky. 1965 ).

A truck driver whose vehicle was impounded in accord with KRS 138.990(15), which required mandatory impoundment of vehicle when driver was found operating the vehicle without a Kentucky motor fuel user’s license (KYU), was not deprived of his due process rights, in that he had had statutory opportunities for a hearing and appeal when his license was originally revoked for failure to maintain a fuel tax bond. Transportation Cabinet v. Cassity, 912 S.W.2d 48, 1995 Ky. LEXIS 149 ( Ky. 1995 ), cert. denied, 517 U.S. 1209, 116 S. Ct. 1825, 134 L. Ed. 2d 931, 1996 U.S. LEXIS 3285 (U.S. 1996).

29.Motor Vehicles.

Law that required that taxi operator obtain bus operator certificate to operate his taxi as a bus was not arbitrary under this section. Crigger & Stepp v. Allen, 219 Ky. 254 , 292 S.W. 811, 1927 Ky. LEXIS 322 ( Ky. 1927 ).

Law could constitutionally give tax commission discretion in establishment of bond or insurance amounts to be furnished by taxi operators. Gross v. Commonwealth, 256 Ky. 19 , 75 S.W.2d 558, 1934 Ky. LEXIS 349 ( Ky. 19 34).

Law prohibiting operation of sound trucks at certain times and places was not unconstitutionally arbitrary. Brachey v. Maupin, 277 Ky. 467 , 126 S.W.2d 881, 1939 Ky. LEXIS 683 ( Ky. 1939 ).

The citizen’s right to use the highways for travel and for transporting his own property is a usual and ordinary right, but the right of a motor carrier to use the highways as a place of business is an unusual and extraordinary right, over which the state or the city has broad regulatory power. Bell Bros. Trucking Co. v. Kelley, 277 Ky. 781 , 127 S.W.2d 831, 1939 Ky. LEXIS 730 ( Ky. 1939 ).

It is not competent for the general assembly to make the mere failure to secure an operator’s license prima facie evidence of negligent driving, since such a violation of law has no evidentiary relation to or logical tendency to prove the fact of negligence. Tipton v. Estill Ice Co., 279 Ky. 793 , 132 S.W.2d 347, 1939 Ky. LEXIS 365 ( Ky. 1939 ).

The practice of setting up a roadblock for motor vehicles for the purpose of requiring the driver to display an operator’s license cannot be regarded as exercising arbitrary power over the lives, liberty and property of free men; therefore, evidence obtained entirely and solely by such procedure that driver did not have or display a driver’s license is admissible in prosecution for driving without a license. Commonwealth v. Mitchell, 355 S.W.2d 686, 1962 Ky. LEXIS 83 ( Ky. 1962 ).

A regulation by the Motor Vehicle Commission which restricted off-site sales of motor vehicles was properly ruled to be invalid for lack of any legitimate purpose and was further held to contain several key provisions which were individually unconstitutional. Motor Vehicle Com. v. Hertz Corp., 767 S.W.2d 1, 1989 Ky. App. LEXIS 39 (Ky. Ct. App. 1989).

A statute of the type of KRS 189A.010 is not just a road regulation, but a prohibition against an intoxicated person’s driving an automobile, which may be an act dangerous to the public and the driver wherever it may occur, consequently the individual’s right to privacy must yield to the demands of public and personal safety. Lynch v. Commonwealth, 902 S.W.2d 813, 1995 Ky. LEXIS 55 ( Ky. 1995 ).

The prohibition of KRS 189A.010 of operating or being in physical control of a vehicle anywhere in the state while under the influence of alcohol or other substance does not constitute an unreasonable restriction upon the conduct of an individual wherein it violates his constitutional right with regard to privacy and the right to do as he pleases on his own property, for it is not unbridled government decision making, as it it not a law restricting individual freedom without any relation to a valid public interest. Lynch v. Commonwealth, 902 S.W.2d 813, 1995 Ky. LEXIS 55 ( Ky. 1995 ).

“Zero tolerance” provisions of KRS 189A.010 , pertaining to underage drinking and driving, are rationally related to a legitimate state purpose and are based on a valid distinction; therefore, such provisions are valid under the equal protection clauses of the United States and Kentucky Constitutions and do not constitute special legislation in violation of Ky. Const., § 59. Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ).

30.Municipal Utilities.

KRS 96.171 to 96.188 , giving public utilities board all power to operate, maintain, improve and extend electric and water service and to fix rates thereof on behalf of third-class city, did not place arbitrary power in such board in violation of this section, since city had power of supervision and control over its appointed board. Settle v. Jones, 306 Ky. 9 , 206 S.W.2d 59, 1947 Ky. LEXIS 946 ( Ky. 1947 ).

It was not arbitrary or unreasonable for metropolitan sewer district to fix higher rates for county users than for city users, where sewer system had been paid for by the city taxpayers and city sewer bonds were still outstanding and would be paid from sinking fund raised from taxation of city property. Louisville & Jefferson County Metropolitan Sewer Dist. v. Joseph E. Seagram & Sons, Inc., 307 Ky. 413 , 211 S.W.2d 122, 1948 Ky. LEXIS 738 ( Ky. 1948 ).

Where, under statutory authority, sanitation district passed regulation requiring all abutting property to connect with public sewer system, even though they had private sewage facilities, regulation and statute were not unconstitutionally arbitrary or the taking of property without due process. Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ).

City ordinance regulating rates and charges for city water supplied to individuals was not violative of this section in treating owner of premises supplied as consumer and requiring such owner to pay water bill. Puckett v. Muldraugh, 403 S.W.2d 252, 1966 Ky. LEXIS 326 ( Ky. 1966 ).

The fluoridation of public water supplies does not violate Const., § 2 or KRS 315.020 . Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

When an existing facility begins to wear out or become obsolete or otherwise inadequate a metropolitan sewer district has the right to determine whether that facility is to be phased out of existence or be permitted to perpetuate its viability through necessary improvement or rehabilitation; such a decision in a given instance cannot be arbitrary, but neither must it be dictated by what is best for the financial interests of individual investors or speculators. Louisville & Jefferson County Metropolitan Sewer Dist. v. Douglass Hills Sanitation Facility, 592 S.W.2d 142, 1979 Ky. LEXIS 317 ( Ky. 1979 ).

Decision of a utility commission to select a higher bid for the construction of a new glass-lined water tank and to reject the lowest bid for the construction of a welded-steel, paint-lined water tank did not violate Ky. Const. § 2 because the decision was not arbitrary and was based upon multiple considerations, including the lower maintenance costs of glass-lined tanks. Laurel Constr. Co. v. Paintsville Util. Comm'n, 336 S.W.3d 903, 2010 Ky. App. LEXIS 40 (Ky. Ct. App. 2010).

31.Parole.

This section was not violated when welfare department which had custody of prisoner on parole took him into custody again for parole violation after his rearrest and acquittal on different charge. Mahan v. Buchanan, 310 Ky. 832 , 221 S.W.2d 945, 1949 Ky. LEXIS 1015 ( Ky. 1949 ).

Where the transfer of a prisoner from Kentucky to Louisiana was not in compliance with either the Interstate Agreement on Detainers or the Uniform Criminal Extradition Act, Kentucky forfeited its right to require prisoner to serve out the remainder of his twelve (12) year sentence. Yost v. Smith, 862 S.W.2d 852, 1993 Ky. LEXIS 83 ( Ky. 1993 ), overruled in part, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Parole hearing procedure, during which two parole board members were present by video link rather than in person, did not violate an inmate’s rights to procedural due process as secured by U.S. Const. amend. XIV, and Ky. Const. §§ 2, 11; the inmate was entitled to an opportunity to be heard, and a decision which stated the reason for denial, and these requirements were met. Pappas v. Ky. Parole Bd., 156 S.W.3d 303, 2004 Ky. App. LEXIS 199 (Ky. Ct. App. 2004).

Kentucky Parole Board’s decision to rescind its recommendation to parole an inmate did not violate Ky. Const., § 2, as the granting of parole is not a right but a matter of grace or gift to persons deemed eligible. Stewart v. Commonwealth, 153 S.W.3d 789, 2005 Ky. LEXIS 12 ( Ky. 2005 ).

32.Pension Funds.

KRS 95.540 , relating to rules for the government of the pension fund for police and firemen in cities of the second and third classes, did not violate this section. Miller v. Price, 282 Ky. 611 , 139 S.W.2d 450, 1940 Ky. LEXIS 224 ( Ky. 1940 ).

Where a city ordinance established a police pension fund which did not permit police who left the force to withdraw any part of their contribution unless they had served at least five (5) years and did not grant a vested right in such contribution, the ordinance did not run afoul of this section. Louisville Policemen's Retirement Fund v. Bryant, 556 S.W.2d 6, 1977 Ky. LEXIS 515 ( Ky. 1977 ).

Ky. Rev. Stat. Ann. § 61.598 is not arbitrary on its face because it affects employers similarly and only under specified circumstances, and it is reasonably designed to rehabilitate and preserve the pension system; the statute is meant to be a bloat-limiting balancing measure and is written to serve that purpose, and it authorizes the Kentucky Retirement Systems to pass regulations and take prescribed actions to assess increased actuarial costs attributable to employee compensation increases. City of Villa Hills v. Ky. Ret. Sys., 2021 Ky. LEXIS 301 (Ky. Aug. 26, 2021).

33.Public Safety and Welfare.

City ordinance prohibiting privy vault’s abutting public sewers and providing for removal of such vaults in existence after 60 days’ notice was not arbitrary power over property of others under this section. Treasy v. Louisville, 137 Ky. 289 , 125 S.W. 706, 1910 Ky. LEXIS 568 ( Ky. 1910 ).

Law which authorized Kentucky public service commission to fix telephone service schedules, services, rates, charges, practices, rules and regulations was not violative of this section. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

Attempt of director of division of insurance to close a building unconditionally without opportunity for owners to remedy defects and hazards is, in the absence of emergency or imminent peril, in violation of Const., § 2, particularly when previous safety record was good. Foster v. Goodpaster, 290 Ky. 410 , 161 S.W.2d 626, 1942 Ky. LEXIS 418 ( Ky. 1942 ).

Minimum housing standards requiring inside bathroom with toilet, lavatory basin, and bathtub or shower, with connections to public sewer, hot and cold water lines and water heating facilities, were reasonable, within scope of police powers of city, and not violative of this section. Louisville v. Thompson, 339 S.W.2d 869, 1960 Ky. LEXIS 487 ( Ky. 1960 ).

The enjoyment of many personal rights and freedoms is subject to many kinds of restraints under state police power, which includes reasonable conditions as may be determined by governmental authorities to be essential to the safety, good order and public welfare of the people. Commonwealth v. Mitchell, 355 S.W.2d 686, 1962 Ky. LEXIS 83 ( Ky. 1962 ).

Possible financial loss claimed by fishermen as result of regulation prohibiting fishing and boating in dangerous 100-foot area was not such loss as contemplated by this section. Lovern v. Brown, 390 S.W.2d 448, 1965 Ky. LEXIS 350 ( Ky. 1965 ).

Regulations adopted by the county board of health providing for minimum standards for habitable housing were valid and reasonably necessary to protect the health and welfare of the inhabitants, where they provided for “due process of law” and they were within the framework of the enabling legislation. Louisville & Jefferson County Board of Health v. Haunz, 451 S.W.2d 407, 1969 Ky. LEXIS 16 ( Ky. 1969 ).

The provisions of city housing code and KRS 80.660 (now repealed) and 80.670 (now repealed) requiring compelled destruction when the cost of repair exceeds 50% of value were unconstitutional as contravening this section. Johnson v. Paducah, 512 S.W.2d 514, 1974 Ky. LEXIS 402 ( Ky. 1974 ).

Where a legislative body attempts to prohibit a certain business, the test to be applied to determine the constitutionality of the prohibition is whether it is necessary to prevent the infliction of a public injury. U. S. Mining & Exploration Natural Resources Co. v. Beattyville, 548 S.W.2d 833, 1977 Ky. LEXIS 402 ( Ky. 1977 ).

Members of the public need protection from arbitrary and capricious pricing decisions made by insurance companies, where such decisions constitute a business practice which is unfair or not in the public interest. Morgan v. Blue Cross & Blue Shield, Inc., 794 S.W.2d 629, 1989 Ky. LEXIS 116 ( Ky. 1989 ).

Regulations imposed on child care facilities due to the COVID-19 pandemic were not arbitrary under this section because the record amply reflected a rational basis for both sets of restrictions; the Limited Duration Centers were literally emergency childcare for healthcare workers and first responders in the very early days of the pandemic with regulations based on successful emergency childcare centers in other states, and when regular Kentucky childcare facilities generally reopened in June 2020, the group sizes and the tour restrictions for these centers were based on articulated public health reasons, i.e., efforts to limit the spread of disease as society in general was reopening. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

Regulations imposed on restaurants due to the COVID-19 pandemic were not arbitrary under this section because the Cabinet for Health and Family Services’ broad police powers for dealing with contagious diseases, Ky. Rev. Stat. Ann. §§ 211.025 , 211.180(1)63 provided a rational basis for the face covering and the social distancing measure. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

34.— Charitable Gaming.

KRS 238.530(3) is not unconstitutionally overbroad, since it does not prohibit any constitutionally protected conduct; nor is it void as an arbitrary exercise of power, since it is rationally related to valid state purposes. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

Statement of intent in KRS 238.500 “to prevent the commercialization of charitable gaming” is not void for vagueness or overbreadth, since it does not prohibit any conduct; nor is it arbitrarily imposed, since the stated intention is a valid state purpose. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

KRS 238.535 does not create arbitrary distinctions among charitable organizations, but is designed to further a state interest in insuring that only established charities operate charitable gaming facilities. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

Provisions of KRS 238.540 requiring that charitable gaming be conducted at one location, that games be conducted by officers, members and employees of the charity without compensation, and that organizations not contract with others to manage or conduct gaming activities, further legitimate state interests and are not arbitrary; nor do they favor one charity over another or constitute impermissible “special legislation.” Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

Provisions of KRS 238.545 limiting charitable gaming to one session per week and limiting the amounts of individual prizes are rationally related to the state’s interest in preventing commercialization of charitable gaming and are therefore constitutional. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

Provisions of KRS 238.550 requiring gross receipts from charitable gambling to be handled only by bona fide officers and employees of the charitable organization and limiting rent and other expenses are rationally related to the state’s interest in insuring that receipts charitable gaming are actually applied to charitable works and are therefore constitutional. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

35.Railroads.

Law that provided for railroad commission hearing complaints against railroads and procedure therefor did not vest in railroad commission any absolute or arbitrary power over property of carriers. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775 , 187 S.W. 296, 1916 Ky. LEXIS 144 ( Ky. 1916 ).

36.Regulated Occupations.

A board refusing a teacher’s certificate without reasonable grounds therefor could be compelled by mandamus to grant it as a ministerial duty, this section forbidding arbitrary power in any state officer. Flynn v. Barnes, 156 Ky. 498 , 161 S.W. 523, 1913 Ky. LEXIS 468 ( Ky. 1913 ).

Tobacco warehouse act of 1924 (KRS 248.430 , 248.990 ) regulating sale of leaf tobacco at public auction did not violate this section. Jewell Tabacco Warehouse Co. v. Kemper, 206 Ky. 667 , 268 S.W. 324, 1925 Ky. LEXIS 1023 ( Ky. 1925 ).

Ordinance requiring consent by operators of junk shops, wrecking shops and pawnshops to inspection and search by police in order to obtain permit to operate such businesses was not unconstitutionally arbitrary. Mansbach Scrap Iron Co. v. Ashland, 235 Ky. 265 , 30 S.W.2d 968, 1930 Ky. LEXIS 338 ( Ky. 1930 ).

Restrictions or regulations with respect to lawful occupations must be of reasonable necessity and not arbitrary. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

An ordinance by a municipal corporation which regulates the hours during which businesses may be operated which does not directly or remotely tend to benefit the public health, morals, safety or the general welfare, when applied to restaurant, cannot be justified on the theory that it was passed under the police power. Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1 , 178 S.W.2d 847, 1944 Ky. LEXIS 652 ( Ky. 1 944 ).

Though Const., §§ 1 and 2 guarantee to everyone the inalienable right to earn a livelihood, Const., § 181 expressly qualifies that right to the extent that it empowers cities, counties, towns and other municipal corporations to impose an occupational license tax on “trades, occupations and professions.” The quoted language covers all fields of employment and all means of earning a livelihood. Louisville v. Sebree, 308 Ky. 420 , 214 S.W.2d 248, 1948 Ky. LEXIS 907 ( Ky. 1948 ).

Occupational license fees could be imposed by board of education under KRS 160.531 to 160.534 (now repealed) without violation of this section. Sims v. Board of Education, 290 S.W.2d 491, 1956 Ky. LEXIS 329 ( Ky. 1956 ).

Junkyard act (KRS 177.905 to 177.951 , 177.990 ), requiring that junkyard be licensed only if effectively hidden from view of motorists by natural or artificial screening, and prohibiting junkyards within certain distance from roads unless permitted by highway department, served to effectuate authentic public purpose and thus did not violate this section. Jasper v. Commonwealth, 375 S.W.2d 709, 1964 Ky. LEXIS 431 ( Ky. 1964 ).

37.— Educational Personnel.

In suit by principal who was demoted to teacher, alleging that denial of his right to the pre-demotion hearing provided for administrators in KRS 161.765 deprived him of equal protection of the laws guaranteed by the Fourteenth Amendment of the U.S. Constitution and was an exercise of arbitrary power prohibited by this section, since “administrators” as defined by subsection (8) of KRS 161.720 as it existed prior to its 1992 amendment did not include “principals” as “administrators”, the court employing the “rational basis scrutiny” held that since there were several distinctions between “principals” and “administrators”, there was a rational basis for the exclusion of “principals” from the definition of “administrators” and thus such exclusion did violate the Fourteenth Amendment of the U.S. Constitution or this section. 902 S.W.2d 842, 1995 Ky. App. LEXIS 77 .

Since claim of principal who was demoted to teacher that he was denied the right to a pre-demotion hearing provided for in KRS 161.765 did not contain claim that his situation involved a suspect classification or a violation of a fundamental right, the rational basis scrutiny was the proper scrutiny to use in determining if principal was denied his right to equal protection of laws of if the denial was an exercise of arbitrary power. 902 S.W.2d 842, 1995 Ky. App. LEXIS 77 .

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. Because hiring school district employees is an act essential to the function of the school district, Kentucky’s governmental immunity protected the school district and the school superintendent, in his official capacity, from liability for the teacher’s state-law claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

In a civil rights suit brought under 42 USCS. § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. For claims against the school superintendent in his individual capacity for hiring decisions in which he actually participated and or in which his role was unclear, the superintendent was not entitled to summary judgment; it had long been established that discharging or failing to hire or retain an employee because she engaged in protected speech was wrongful, so the superintendent was not entitled to qualified immunity from liability for those claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

38.— Medical Malpractice Insurance.

The burden of collecting and handling the surcharge mentioned in KRS 304.40-330 (now repealed) does not violate the rights of medical malpractice insurers under this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The requirements of KRS 304.40-330 (2) and (5) (now repealed) that all physicians and hospitals be members of and contribute to the patient compensation fund was not an arbitrary classification. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provision of KRS 304.40-330 (now repealed) requiring compulsory malpractice insurance constitutes an unjustifiable interference with the right to pursue a legitimate business or profession and is therefore unconstitutional under this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provisions of KRS 304.40-330 (6) (now repealed) limiting the number of members insured in the patient compensation fund were arbitrary and therefore violated this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provisions of former law establishing patients’ compensation fund, authorizing the commissioner to exempt certain physicians from the patient compensation fund and to fix the rate of surcharges, were not unconstitutional on their faces and, if properly implemented, would not have violated this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

39.Ordinances.

Where a city ordinance made the person in possession of premises responsible for an act not committed by him and which he had no intention to commit, and to a prosecution for which he could make no defense, it was in violation of this section. City of Campbellsburg v. Odewalt, 72 S.W. 314, 24 Ky. L. Rptr. 1717 , 24 Ky. L. Rptr. 1739 , 1903 Ky. LEXIS 469 (Ky. Ct. App. 1903).

Regulation imposing on business entities subject to the licensing ordinance the duty to register and give information as to items subject to the federal income tax but exempt from the occupational tax did not represent an unconstitutional exercise of absolute and arbitrary power. Commissioners of Sinking Fund v. Estate of Doyle, 573 S.W.2d 932, 1978 Ky. App. LEXIS 615 (Ky. Ct. App. 1978).

County’s ordinance banning smoking in public buildings was not an improper infringement upon property rights where the county considered lengthy public hearings at which evidence of the problems connected with the use of tobacco products and second-hand smoke were extensively discussed by all sides to the controversy and where evidence was presented that used objective sales data to the effect that “no adverse economic effect” or “improved business” was found. Lexington Fayette County Food & Bev. Ass'n v. Lexington-Fayette Urban County Gov't, 131 S.W.3d 745, 2004 Ky. LEXIS 94 ( Ky. 2004 ).

Where city residents argued that local ordinances aimed at controlling deer populations which included permitting the discharge of arrows within city limits violated their fundamental right to personal security, even if the ordinances may have increased the risk that a resident would have been exposed to private acts of violence, the residents could not prevail under a state-created-danger theory because there was no evidence that the ordinances subjected them to any special danger. Kelly v. City of Fort Thomas, 610 F. Supp. 2d 759, 2009 U.S. Dist. LEXIS 1146 (E.D. Ky. 2009 ), aff'd in part and rev'd in part, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

City ordinances were rationally related to the city’s public safety interest in reducing its urban deer population. The ordinances sought to reduce the deer population by decreasing their available food sources within the city limits, by permitting a person who complied with the accompanying restrictions to use a bow or crossbow to assist in culling the deer population, and by imposing field dressing requirements that were rationally related to the city’s public health concerns arising from a likely increase in deer kills within city limits. Kelly v. City of Fort Thomas, 610 F. Supp. 2d 759, 2009 U.S. Dist. LEXIS 1146 (E.D. Ky. 2009 ), aff'd in part and rev'd in part, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

40.— Adult Entertainment.

Local municipality’s ordinance requiring the licensing of adult entertainment businesses, prohibiting nudity, restricting operation hours, requiring a buffer zone, prohibiting touching and other restrictions, was constitutional upon application of an intermediate scrutiny level of review. The ordinance was content neutral and within the municipality’s police power to regulate the secondary effects of such establishments. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 2007 Ky. App. LEXIS 370 (Ky. Ct. App. Oct. 5, 2007), aff'd in part and rev'd in part, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ).

County ordinance’s “no touch” provision was unconstitutionally overbroad under the First Amendment because prohibiting all touching between adult establishment customers and entertainers, including benign, nonsexual touching, was substantially broader than necessary to achieve the county’s interest in combating prostitution and sexually transmitted diseases. An ordinance could easily be more narrowly tailored to prohibit sexual touching, as in a ban on touching during a performance or while in a state of nudity. Blue Movies, Inc. v. Louisville/Jefferson County Metro Gov't, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ), cert. denied, 562 U.S. 1272, 131 S. Ct. 1617, 179 L. Ed. 2d 502, 2011 U.S. LEXIS 1991 (U.S. 2011).

41.— Building Regulations.

Ordinance which lays down no requirements to be followed and no general and uniform rule is invalid because it leaves the granting of such a thing as a building permit to the sometimes arbitrary discretion of municipal authorities. Colyer v. Somerset, 306 Ky. 797 , 208 S.W.2d 976, 1947 Ky. LEXIS 1025 ( Ky. 1947 ).

Where ordinance authorizing city council to grant building permits gave them the right to designate the distance from inside the sidewalk to the front of any building without laying down any general requirements to be followed, it was invalid under this section as it gave council an arbitrary power which they could exercise in a capricious manner. Colyer v. Somerset, 306 Ky. 797 , 208 S.W.2d 976, 1947 Ky. LEXIS 1025 ( Ky. 1947 ).

42.— Employees.

An ordinance restricting or prohibiting the outside employment of policemen or firemen is not arbitrary or unreasonable. Hopwood v. Paducah, 424 S.W.2d 134, 1968 Ky. LEXIS 447 ( Ky. 1968 ).

43.— Regulation of Streets.

City ordinance authorizing mayor and council to designate streets on which motor carriers may operate and places where freight depots may be established does not confer arbitrary power, since discretion must be exercised properly and fairly, and can be controlled by courts. Bell Bros. Trucking Co. v. Kelley, 277 Ky. 781 , 127 S.W.2d 831, 1939 Ky. LEXIS 730 ( Ky. 1939 ).

Plaintiffs were entitled to summary judgment on their action challenging a city ordinance that imposed a curfew on all persons on streets or public places within the city limits during the early morning hours, because the objective of reducing vandalism and disturbing noise late at night did not justify an ordinance that prohibited the casual citizen from wandering the streets; because the city had not used narrowly tailored means to accomplish its legitimate goals of protecting property and public safety, the ordinance was unconstitutional and unenforceable. Embry v. City of Cloverport, 2004 U.S. Dist. LEXIS 1079 (W.D. Ky. Jan. 22, 2004).

44.— Nuisance Abatement.

Board of commissioners could not by ordinance declare building to be a public nuisance, summarily eject occupants, take charge of building and contents, and lock same so as to deprive owner or his lessee of possession and use thereof. Corbin v. Hays, 244 Ky. 33 , 50 S.W.2d 31, 1932 Ky. LEXIS 379 ( Ky. 1932 ).

45.— Racial Discrimination.

Enactment of penal ordinance prohibiting discrimination in places of public accommodation did not violate rights guaranteed by this section or Const., §§ 1, 13, 25, and 242. Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ).

46.— Regulation of Occupations.

City ordinance which regulated business hours and conduct of barber shops was void as being arbitrary in violation of this section. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

47.— Wages and Salaries.

A reduction in salary by ordinance after election of the officer was arbitrary and unreasonable and the ordinance was subject to judicial attack as an abuse of discretion. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

48.Police Power.

The regulation of the production and marketing of milk is a proper exercise of the police power, and the court will accept the legislature’s judgment as to classification and regulation, where there is room for reasonable difference of opinion. Pure Milk Producers & Distributors Ass'ns v. Morton, 276 Ky. 736 , 125 S.W.2d 216, 1939 Ky. LEXIS 575 ( Ky. 1939 ).

Billboard act (KRS 177.830 to 177.990 ) did not constitute arbitrary exercise of police power in violation of this section since it was within scope of public purpose and regulations imposed thereunder were not unreasonable. Moore v. Ward, 377 S.W.2d 881, 1964 Ky. LEXIS 505 ( Ky. 1964 ).

A municipal corporation may exercise its police power to restrict lawful businesses only if the regulation bears a reasonable relation to the promotion of health, safety, morality or other phase of the general welfare. U. S. Mining & Exploration Natural Resources Co. v. Beattyville, 548 S.W.2d 833, 1977 Ky. LEXIS 402 ( Ky. 1977 ).

The question of reasonableness of an exercise of the police power is one of degree and must be based on the facts of a particular case. Boyle County Stockyard Co. v. Commonwealth, Dep't of Agriculture, 570 S.W.2d 650, 1978 Ky. App. LEXIS 578 (Ky. Ct. App. 1978).

The enjoyment of many personal rights and freedoms is subject to many kinds of restraints under the police power of the state, which includes reasonable conditions as may be determined by governmental authority to be essential to public welfare, safety, and good order of the people. Lynch v. Commonwealth, 902 S.W.2d 813, 1995 Ky. LEXIS 55 ( Ky. 1995 ).

49.— Civil Penalties.

KRS 382.365 is not unconstitutional under the Due Process Clause and Ky. Const. § 2 in providing a severe penalty as a mortgagor has a duty to act reasonably and in good faith and the mortgagor’s rights flow from a contract, in which there is an implied covenant of good faith and fair dealing. Union Planters Bank, N.A. v. Hutson, 210 S.W.3d 163, 2006 Ky. App. LEXIS 170 (Ky. Ct. App. 2006).

50.— Nuisance Abatement.

State could not provide under its police power for forfeiture of all one’s property, though in no way connected with nuisance to be abated thereby. Rickman v. Commonwealth, 204 Ky. 848 , 265 S.W. 452, 1924 Ky. LEXIS 587 ( Ky. 1924 ).

The exercise of power delegated to an administrative board to abate nuisances is justified only upon a finding of conditions equivalent to a nuisance, that is, a condition injurious to life, health or morals. Kentucky Alcoholic Beverage Control Board v. Jacobs, 269 S.W.2d 189, 1954 Ky. LEXIS 951 ( Ky. 1954 ).

Blanket prohibition of the construction and operation of coal tipples is arbitrary and unconstitutional unless municipality can show that operation of a coal tipple is a nuisance per se. U. S. Mining & Exploration Natural Resources Co. v. Beattyville, 548 S.W.2d 833, 1977 Ky. LEXIS 402 ( Ky. 1977 ).

51.Sovereign Immunity.

Neither this section nor Const., §§ 14 and 26 were intended in any way to impinge on right of commonwealth by its general assembly under Const., § 231 to direct in what manner and in what courts suits might be brought against it. Wood v. Board of Education, 412 S.W.2d 877, 1967 Ky. LEXIS 445 ( Ky. 1967 ).

52.Right to Appeal.

An appeal is a matter of grace with the legislature, and act providing for establishment of roads is not unconstitutional in denying right of appeal and does not contravene this section. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ).

An arbitrary dismissal of an appeal is equally offensive to the rights guaranteed by the United States Const., Amend. 14, and by Const., § 2, whether it results from an erroneous conclusion as to jurisdiction or from some other improper reason. Dryden v. Commonwealth, 435 S.W.2d 457, 1968 Ky. LEXIS 208 ( Ky. 1968 ).

If the affidavit of merits presents a purely legal as distinguished from a factual issue, the circuit court may deny the appeal upon resolving the legal question adversely to the appellant, in which event there would be no occasion for a de novo trial. Dryden v. Commonwealth, 435 S.W.2d 457, 1968 Ky. LEXIS 208 ( Ky. 1968 ).

If the circuit court denies an appeal from the juvenile court that presents a substantial factual issue or a question of constitutional law, its action in so doing is reviewable by the Court of Appeals. Dryden v. Commonwealth, 435 S.W.2d 457, 1968 Ky. LEXIS 208 ( Ky. 1968 ).

Although a trial court’s decision was not a final order, KRS 22A.020(4) allowed the Commonwealth to take an interlocutory appeal. Section 22A.020(4) did not violate Ky. Const. § 2 even though it was solely for the benefit of the Commonwealth as it furthered the Commonwealth’s legitimate interest in the administration of justice. Ballard v. Commonwealth, 320 S.W.3d 69, 2010 Ky. LEXIS 206 ( Ky. 2010 ).

53.Right to Vote.

Law that established two (2) general classes of voters who were eligible to vote by absentee ballot — federal employees and full-time students — did not violate this section. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

54.Street Improvements.

An act conferring on a city the right to require construction of a new sidewalk did not violate this section. Lambert v. Thornberry, 153 Ky. 523 , 155 S.W. 1163, 1913 Ky. LEXIS 871 ( Ky. 1913 ).

Under statutes authorizing assessment for street improvement, arbitrary rejection of street improvement by commissioners was not authorized, but only power to require the contractor to correct the defects, or modify the estimate of costs as to the parts affected. Covington v. McKenna, 242 Ky. 452 , 46 S.W.2d 760, 1932 Ky. LEXIS 289 ( Ky. 1932 ).

55.Sunday Closing Laws.

Sunday closing law could not be enforced against department store where it was not enforced against other businesses such as grocery stores, pharmacies, and car washes. Ashland v. Heck's, Inc., 407 S.W.2d 421, 1966 Ky. LEXIS 164 ( Ky. 1966 ).

56.School Boards.

KRS 160.045 did not unconstitutionally deprive boards of education of their responsibility for school system and vest absolute and arbitrary power in property owners, since school boards exercised complete control as to whether territory should become part of city school district. Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ).

Public school students could be prohibited by law from frequenting certain food establishment during school hours without violating this section. Casey County Board of Education v. Luster, 282 S.W.2d 333, 1955 Ky. LEXIS 238 ( Ky. 1955 ).

The function of the courts is to decide a test of regularity and legality of a board’s action by the statutory law and by the constitutional protection against the exercise of arbitrary official power. Wells v. Board of Education, 289 S.W.2d 492, 1956 Ky. LEXIS 283 ( Ky. 1956 ).

In hearing by school board of dismissal charges against employee, such board was entitled to benefit of discovery and amendment to extent of frank answers to their questions to employee, on assumption that orderly procedure was both essential to and qualification of fairness guaranteed by this section. Board of Education v. Chattin, 376 S.W.2d 693, 1964 Ky. LEXIS 471 ( Ky. 1964 ), overruled, Osborne v. Bullitt County Bd. of Educ., 415 S.W.2d 607, 1967 Ky. LEXIS 325 ( Ky. 1967 ).

Without a showing of compelling governmental interest, the policy of a school board in showing preference for the employment of natives of its county constituted an inherently suspect classification, unconstitutionally discriminatory and preferential in violation of this section and sections 1 and 3 of the Constitution. Johnson v. Dixon, 501 S.W.2d 256, 1973 Ky. LEXIS 128 ( Ky. 1973 ).

It is clear from the language of this section that the prohibition against arbitrary action applies to all public bodies and all public officials, e.g., school boards and school superintendents, in their assertion or attempted exercise of political power. Board of Educ. v. Jayne, 812 S.W.2d 129, 1991 Ky. LEXIS 51 ( Ky. 1991 ).

Two (2) teachers who were transferred to other schools after failing to improve their pass/failure rate suffered no injury as they suffered no loss of pay, and no loss of fringe benefits, nor was there evidence indicating that the decision of the superintendent and the school board was based on racial discrimination, gender discrimination, religious discrimination, or political activity discrimination and therefore this section was not invoked. Board of Educ. v. Jayne, 812 S.W.2d 129, 1991 Ky. LEXIS 51 ( Ky. 1991 ).

Decision by school board to close school was a matter involving legislative facts; as a result, the standards involving adjudicative facts and quasi-judicial opinions, with regard to due process, did not apply. Coppage v. Ohio County Bd. of Educ., 860 S.W.2d 779, 1992 Ky. App. LEXIS 182 (Ky. Ct. App. 1992).

Claims for violations of KRS 433.150 and Ky. Const., § 2 and for various tort actions brought by plaintiff special needs student against defendant school board, superintendent, and principal were dismissed because the board and superintendent were entitled to governmental immunity and the principal was entitled to good faith immunity. M.W. v. Madison County Bd. of Educ., 262 F. Supp. 2d 737, 2003 U.S. Dist. LEXIS 8117 (E.D. Ky. 2003 ).

57.— Principals.

School principal’s decision to suspend student for possessing alcohol at a school-sponsored basketball game was not arbitrary because principal acted within his statutory powers, student was afforded procedural due process, and it was undisputed that there was evidence that student possessed alcohol. Pirschel v. Sorrell, 2 F. Supp. 2d 930, 1998 U.S. Dist. LEXIS 5503 (E.D. Ky. 1998 ).

58.Taxation.

Section 181 of the Constitution, when read in connection with this section and other sections in bill of rights, confers no power to prohibit or substantially prohibit legitimate business by taxation. Field Packing Co. v. Glenn, 5 F. Supp. 4, 1933 U.S. Dist. LEXIS 1127 (D. Ky.), modified, 290 U.S. 177, 54 S. Ct. 138, 78 L. Ed. 252, 1933 U.S. LEXIS 453 (U.S. 1933).

Retail merchants’ gross sales tax act was not violative of this section. Stewart Dry Goods Co. v. Lewis, 7 F. Supp. 438, 1933 U.S. Dist. LEXIS 1007 (D. Ky. 1933 ), rev'd, 294 U.S. 550, 55 S. Ct. 525, 79 L. Ed. 1054, 1935 U.S. LEXIS 57 (U.S. 1935).

Collection of additional tax for support of schools was not violative of this section. Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ).

As law that imposed transfer tax on the exercise of a power of appointment derived from any disposition of property provided that even where appointment was not made by donee the tax applied, such law was not arbitrary and did not violate Const., § 2, for legislature had the right to tax beneficiaries coming into the possession and enjoyment of an estate at the death of the donee. Commonwealth v. Fidelity & Columbia Trust Co., 285 Ky. 1 , 146 S.W.2d 3, 1940 Ky. LEXIS 589 ( Ky. 1 940 ).

A municipal occupational tax on legitimate businesses must not be confiscatory. Southern Linen Supply Co. v. Hazard, 286 Ky. 626 , 151 S.W.2d 758, 1941 Ky. LEXIS 319 ( Ky. 1941 ).

Where tax is so high as to result in taxed occupation earning no profit, it is void. Lone Star Shows, Inc. v. Commissioner of Sinking Fund, 294 Ky. 114 , 171 S.W.2d 28, 1943 Ky. LEXIS 399 ( Ky. 1943 ).

Statute permitting utilities to pass a school tax, on their gross receipts, on to users was not unconstitutional as making an arbitrary classification because users paid by the quantity of utilities used rather than by their use of the schools. Lamar v. Board Education, 467 S.W.2d 143, 1971 Ky. LEXIS 359 ( Ky. 1971 ).

The exercise of the licensing power is subject to the requirements, established by this section and Ky. Const., § 171, that classifications for purposes of taxation of occupations and businesses must be based on reasonable distinctions, must be uniform as to the class and must not be excessive, arbitrary or prohibitive and these requirements apply whether the case involves an increase of a license fee or the initial imposition thereof. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

Where nothing in the record indicated that a 100 percent increase in the licensing fee for physicians and other professionals was so excessive as to be confiscatory or prohibitory, the court would not invalidate the ordinance imposing the tax. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

Where some leaseholders of land owned by an airport were being taxed, but those holding leasehold interest under industrial revenue bond issues were not, the sensible solution was to right the wrong by filing the omission rather than by extending the exemption to other leaseholders. Standard Oil Co. v. Boone County Board of Supervisors, 562 S.W.2d 83, 1978 Ky. LEXIS 319 ( Ky. 1978 ).

Imposition of a use tax upon purchase of materials used in the publication of a newspaper delivered free of charge was not in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution, Const., § 171, and this section. Box Photo & Engraving Co. v. Revenue Cabinet, 743 S.W.2d 849, 1987 Ky. App. LEXIS 557 (Ky. Ct. App. 1987).

The Revenue Cabinet’s failure to appeal a prior decision, against the constitutionality of inheritance taxes on survivorship property, did not create estoppel against appeal nor arbitrary and unconstitutionally unequal treatment of other parties in later litigation. Revenue Cabinet, Commonwealth v. Samani, 757 S.W.2d 199, 1988 Ky. App. LEXIS 64 (Ky. Ct. App. 1988).

Property Valuation Administrator’s (PVA) quadrennial plan, which divided the county into four (4) sections and undertook to physically examine the properties in one (1) section each year, complied with all relevant statutory requirements, and did not violate this section or Const., §§ 171 or 172. Revenue Cabinet v. Leary, 880 S.W.2d 878, 1994 Ky. App. LEXIS 8 (Ky. Ct. App. 1994).

It was a forbidden arbitrary and naked exercise of power for the Revenue Cabinet to apply a statute in a particular manner for 18 years and then, with no public hearing or any other logical reason, to announce an opposite interpretation of the statute. Revenue Cabinet v. Humana, Inc., 998 S.W.2d 494, 1998 Ky. App. LEXIS 89 (Ky. Ct. App. 1998).

59.— Assessments.

Law which empowered tax commission to equalize assessments did not authorize arbitrary assessments and was not violative of this section. Johnson v. Fordson Coal Co., 213 Ky. 445 , 281 S.W. 472, 1926 Ky. LEXIS 535 ( Ky. 1926 ), writ of error dismissed, 275 U.S. 494, 48 S. Ct. 82, 72 L. Ed. 391, 1927 U.S. LEXIS 310 (U.S. 1927).

Law providing that assessment of property for taxation to develop and support watershed conservancy district should be assessment made by county tax commissioners as equalized by state department of revenue was not violative of this section. Forrester v. Terry, 357 S.W.2d 308, 1962 Ky. LEXIS 114 ( Ky. 1962 ).

A county ordinance, which levied an occupational license fee on the gross compensation of all persons employed or self-employed within the county, did not constitute an arbitrary exercise of power and, therefore, did not violate this section, notwithstanding that a city within the county already imposed a similar occupational license fee and that the city license fee could not be offset against the county license fee. Preston v. Johnson County Fiscal Court, 27 S.W.3d 790, 2000 Ky. LEXIS 119 ( Ky. 2000 ).

60.— Reassessment.

KRS 132.660 , relating to reassessment of property for taxation by the department of revenue, does not confer arbitrary power on the department, since the provision that a reassessment may be made only when it appears that the original assessment was not in substantial compliance with law, or that the interest of the public necessitates a reassessment, furnishes a sufficient standard. Burke v. Department of Revenue, 293 Ky. 281 , 168 S.W.2d 997, 1943 Ky. LEXIS 607 ( Ky. 1943 ).

Where the property value administrator had begun her reevaluation by reassessing residential property, but intended to also reassess commercial and agricultural property as soon as possible, there was no unconstitutional, unequal treatment. Layson v. Brady, 576 S.W.2d 223, 1978 Ky. App. LEXIS 651 (Ky. Ct. App. 1978).

61.— Unreasonable Classification.

Law imposing license tax on retail merchants, graduated according to number of stores operated in state, was violative of this section as containing unreasonable and arbitrary classification of those engaged in trade or occupation of merchant for taxation purposes. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

An ordinance taxing only motels and hotels and no other businesses is arbitrary in violation of this section and violates the uniformity principle of Const., § 171. Lexington v. Motel Developers, Inc., 465 S.W.2d 253, 1971 Ky. LEXIS 443 ( Ky. 1971 ).

Imposition of an additional business license tax on mobile home park owners, levying a flat fee for each space in addition to an annual business license tax, was an unconstitutional selection of one business to bear a heavier tax burden than others, because it was not founded on a rational distinction. Jahr v. Radcliff, 503 S.W.2d 743, 1973 Ky. LEXIS 48 ( Ky. 1973 ).

Because the distinction drawn by a city between professions and non-professions for purposes of imposing an occupational license fee was based upon the city’s need for funds, Flemingsburg, Ky., Ordinance 12-85-1 is arbitrary in violation of Ky. Const., § 2 and violates the uniformity principle of Ky. Const., § 171. Womack v. City of Flemingsburg, 102 S.W.3d 513, 2002 Ky. App. LEXIS 2352 (Ky. Ct. App. 2002).

62.— Reasonable Classification.

The reasonableness of distinctions made in taxing occupations and businesses is a matter within the discretion of the taxing body and where there was no evidence in the record to indicate the reason for a 100 percent increase in the licensing fee of physicians and other professions, the matter would be left within the discretion of the city taxing body since the ordinance in question did not create a special class for the purpose of imposing an additional tax burden. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

Where a city ordinance increased the licensing fees for physicians and other professions by 100 percent, but increased that for other occupations only from 20 percent to 40 percent, the requirement of uniformity was met since the tax was applied uniformly to all members of the class and was not required to be uniform as to all classes. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

Subdivision (4)(c) of KRS 140.300 did not violate this section or Const., §§ 171 and 172A because each class is taxed equally. Revenue Cabinet Commonwealth v. Estate of Marshall, 746 S.W.2d 408, 1988 Ky. App. LEXIS 39 (Ky. Ct. App. 1988).

Although classification by KRS 136.120 of municipal solid waste disposal facilities that dispose of waste by landfill singles out such facilities for disparate tax treatment and is not a perfect fit to the state’s objectives, such classification is reasonably related to the state’s goals for solid waste management and is therefore constitutional. Cooksey Bros. Disposal Co. v. Boyd County, 973 S.W.2d 64, 1997 Ky. App. LEXIS 132 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 930, 119 S. Ct. 338, 142 L. Ed. 2d 279, 1998 U.S. LEXIS 6495 (U.S. 1998).

Since KRS 138.450(12)(a) and (f) further a legitimate governmental interest (stimulating the used car market in Kentucky) the distinction between a new car and a used car for the purpose of taxation was not an exercise of arbitrary power over property by the legislature. Accordingly, KRS 138.450(12)(a) and (f) do not violate Ky. Const. § 2. Fin. & Admin. Cabinet v. Beyer, 193 S.W.3d 755, 2006 Ky. App. LEXIS 152 (Ky. Ct. App. 2006).

63.— Penalties.

Statutory penalties of 100 percent were imposed against taxpayer failing to list intangible property for assessment, plus 20 percent if commonwealth brought action to collect tax and penalty and were not unconstitutionally arbitrary. Commonwealth v. St. Matthews Gas & Electric Shop, Inc., 252 S.W.2d 673, 1952 Ky. LEXIS 1011 ( Ky. 1952 ).

64.— Taxing Districts.

Former law which allowed relatively few petitioners in a county to establish a taxing district without exercise of discretion by local authorities, unconstitutionally violated this section and were invalid. Reid v. Allinder, 504 S.W.2d 706, 1974 Ky. LEXIS 828 ( Ky. 1974 ).

65.— Exemptions.

Discretionary power of commissioner of revenue to establish standards for passing qualifying examinations was not violative of this section. Department of Revenue ex rel. Allphin v. Turner, 260 S.W.2d 658, 1953 Ky. LEXIS 983 ( Ky. 1953 ).

The exemption of the University of Kentucky bookstore from the sales tax by the department of revenue is not arbitrary or resulting in a proscribed discrimination. Kennedy Book Store, Inc. v. Dep't of Revenue, 450 S.W.2d 524, 1970 Ky. LEXIS 453 (Ky.), cert. denied, 400 U.S. 824, 91 S. Ct. 46, 27 L. Ed. 2d 52, 1970 U.S. LEXIS 921 (U.S. 1970).

66.Urban Renewal.

Area city chose to place in urban renewal project was primarily, if not exclusively, matter of legislative discretion in which courts had no legitimate power to interfere unless such action was so unreasonable that it could be called arbitrary and in violation of this section. Watkins v. Fugazzi, 394 S.W.2d 594, 1965 Ky. LEXIS 194 ( Ky. 1965 ).

67.Wages and Salaries.

Law forbidding employers to deduct from wages of employees for their absence during four (4) hour period allowed for voting under Const., § 148 was unconstitutional as exercise of arbitrary power in violation of this section, and as depriving person of property without due process of law in violation of federal Constitution. Illinois C. R. Co. v. Commonwealth, 305 Ky. 632 , 204 S.W.2d 973, 1947 Ky. LEXIS 869 ( Ky. 1947 ), cert. denied, 334 U.S. 843, 68 S. Ct. 1511, 92 L. Ed. 1767, 1948 U.S. LEXIS 2004 (U.S. 1948).

The fact that commonwealth attorneys of first and second-class cities have a higher maximum salary than attorneys of other cities does not violate this section as there is a reasonable basis for the classification. Commonwealth ex rel. Hancock v. Davis, 521 S.W.2d 823, 1975 Ky. LEXIS 162 ( Ky. 1975 ).

Statutes requiring that municipalities pay their firefighters a minimum wage (KRS 337.275 ) and overtime pay (KRS 337.285 ) did not per se constitute the exercise by the legislature of absolute or arbitrary power over the municipalities. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

School board was immune from damages sought under KRS 446.070 for failure to deduct union dues from employees’ wages. Clevinger v. Board of Educ., 789 S.W.2d 5, 1990 Ky. LEXIS 40 ( Ky. 1990 ).

KRS 337.550 and 336.986(3) required the Kentucky Labor Cabinet (Cabinet) to bring a civil action to collect back wages and civil penalties, respectively, and thus, so long as the Cabinet followed the procedures set forth in the statutes, it could not deprive a contractor of property without court intervention; the Cabinet’s actions did not deprive the contractor of a protected property interest. TECO Mech. Contr., Inc. v. Commonwealth, 366 S.W.3d 386, 2012 Ky. LEXIS 23 ( Ky. 2012 ).

Contractor failed to establish that the Kentucky Labor Cabinet’s actions under the prevailing wage law deprived it of a property or liberty interest that was protected by the Due Process Clause; the impairment of the contractor’s future business opportunities was insufficient harm. TECO Mech. Contr., Inc. v. Commonwealth, 366 S.W.3d 386, 2012 Ky. LEXIS 23 ( Ky. 2012 ).

68.Workers’ Compensation.

Right of the legislature to declare what is public policy so as to regulate exercise of police power is limited only by consideration that its action may not be arbitrary, but must be rested upon tangible and reasonably clear public purpose to be served and to further interest of public welfare. Workers’ compensation acts are authorized under police power as furnishing sound public policy. Workmen's Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 ( Ky. 1925 ).

Subsection (2) of KRS 342.320 requiring employer to pay all or part of employee’s attorney fee violated due process clause of United States Constitution and this section. Burns v. Shepherd, 264 S.W.2d 685, 1953 Ky. App. LEXIS 141 ( Ky. 1953 ) (decision prior to 1966 amendment of KRS 342.320 ).

The interpretation of KRS 342.740 and 342.730 , prior to the 1976 amendment of the latter, to allow minimum weekly benefits for permanent, partial disability was not unconstitutional. Yocum v. Gantley, 566 S.W.2d 176, 1978 Ky. App. LEXIS 517 (Ky. Ct. App. 1978).

Commuting future payments to make a lump sum payment to the claimant himself does not violate this section or the Fourteenth Amendment; the fact that a person may not live out his life expectancy calculated as of the date of injury does not subject the fund and employer to an undue risk of overpayment. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

Future benefits payable pursuant to a workers’ compensation award to continue during disability may be commuted to a lump sum for the purpose of the payment of the fee of the attorney for the claimant or other benefit of the claimant without violating either the United States or Kentucky Constitutions. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

No arbitrary power is exercised over the rights of freemen in the requirement that a workers’ compensation claimant must adduce compelling evidence to overcome an adverse finding of the Workers’ Compensation Board; therefore, this section does not require the abolishment of the compelling evidence rule of KRS 342.285 . Tucker v. Tri-State Lawn & Garden, Inc., 708 S.W.2d 116, 1986 Ky. App. LEXIS 1056 (Ky. Ct. App. 1986).

KRS 342.732 furthers the goals of lessening economic drain on the Special Fund caused by claims due to coal mine employment, reducing workers’ compensation payments and providing an alternative to total disability with a specific purpose of retraining workers for other jobs so as to diminish the likelihood of their becoming totally disabled by coal miners’ pneumoconiosis later on; as such, it does not violate the employer’s right to due process under this section. Leeco, Inc. v. Asher, 919 S.W.2d 227, 1996 Ky. App. LEXIS 36 (Ky. Ct. App. 1996); Leeco, Inc. v. Brock, 919 S.W.2d 229, 1996 Ky. App. LEXIS 32 (Ky. Ct. App. 1996); Leeco, Inc. v. Asher, 919 S.W.2d 232, 1996 Ky. App. LEXIS 31 (Ky. Ct. App. 1996); Leeco, Inc. v. Caldwell, 919 S.W.2d 234, 1996 Ky. App. LEXIS 41 (Ky. Ct. App. 1996); Leeco, Inc. v. Sizemore, 919 S.W.2d 237, 1996 Ky. App. LEXIS 54 (Ky. Ct. App. 1996); Lost Mountain Mining v. Fields, 918 S.W.2d 232, 1996 Ky. App. LEXIS 28 (Ky. Ct. App. 1996); Kem Coal Co. v. Baker, 918 S.W.2d 236, 1996 Ky. App. LEXIS 37 (Ky. Ct. App. 1996).

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, is not arbitrary and capricious and, therefore, does not violate Sections 2, 14, 19, 28, 29, 109, and 116 of the Kentucky Constitution or Article 1, § 10 of the United States Constitution.Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

The 1996 amendment to KRS 342.320(2)(c), requiring an employer or its carrier to pay up to $5,000.00 of an injured worker’s attorney fees if the employer appeals an award by an arbitrator or administrative law judge and does not prevail, is unconstitutional as it violates procedural due process and is a pure act of arbitrary power that violates section 2 of the Kentucky Constitution. City of Louisville v. Slack, 39 S.W.3d 809, 2001 Ky. LEXIS 54 ( Ky. 2001 ).

To the extent that KRS 342.316 and the regulations promulgated thereunder preclude the use of additional x-ray evidence in rebuttal in a coal-worker’s pneumoconiosis claim, they violate the parties’ due-process rights under U.S. Const. amend. XIV and Ky. Const., § 2. Bartrum v. Hunter Excavating, 2004 Ky. App. LEXIS 156 (Ky. Ct. App. May 28, 2004), aff'd in part and rev'd in part, 168 S.W.3d 381, 2005 Ky. LEXIS 151 ( Ky. 2005 ).

When a carrier was denied a subrogation recovery under KRS 342.700(1) because the claimant’s legal fees exceeded the benefits paid by the carrier, this did not violate due process or Ky. Const. § 2. The plain language of the statute required such a result, since it was only fair to require employer/insurers benefiting from the fruits of a tort claim to share in its costs, even when a portion of the legal fees might be attributed to the recovery of damages such as pain and suffering that did not duplicate workers’ compensation benefits. AIK Selective Self-Insurance Fund v. Minton, 192 S.W.3d 415, 2006 Ky. LEXIS 130 ( Ky. 2006 ).

Consensus procedure under KRS 342.316 for coal workers’ pneumoconiosis claims did not violate equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 3 because the inherent differences in pneumoconiosis, which was slow to develop, and a traumatic injury provided a reasonable basis for the different statutory treatment for such workers’ compensation claims. KRS 342.316 (13) did not impose a greater burden of proof than on those workers who claimed benefits under KRS 342.730 as the presumption in the consensus procedure was a rebuttable one that could be overcome with clear and convincing evidence. Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Court of Appeals of Kentucky holds Ky. Rev. Stat. Ann. § 342.7305(2) violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Ky. Const. §§ 1, 2, and 3. In particular, the Court of Appeals holds the Supreme Court of Kentucky’s decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 ( Ky. 2011 ), is dispositive. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Ky. Rev. Stat. Ann. § 342.7305(2) offends equal protection guarantees by creating two separate and unequal subclasses of similarly situated hearing loss claimants: all of whom suffered work-related injuries severe enough to qualify for an impairment rating under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and all of whom endured equivalent permanent sensory loss, limited treatment modalities, diminution of daily activities, and occupational restrictions and preclusions, but some of whom are denied equal access to income benefits due to imposition of an arbitrary impairment rating threshold. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Time limitation in Ky. Rev. Stat. Ann. § 342.750(6) did not violate the guarantees of equal protection under the federal and state constitutions because the four-year limit applied equally to all injured workers; substantial and justifiable reasons supported that classification and it was rationally related to a legitimate government purpose; and the employer was entitled to rely on the repose provision in Ky. Rev. Stat. Ann. § 342.750(6). Calloway Cty. Sheriff's Dep't v. Woodall, 607 S.W.3d 557, 2020 Ky. LEXIS 300 ( Ky. 2020 ).

Statutory amendment, which terminated workers’ compensation income benefits when the recipient reached the age of 70 or four years from the date of injury or last injurious exposure, whichever event occurred last, did not violate the Equal Protection Clause because the age classification was rationally related to the legitimate state interests of preventing a duplication of wage-loss protection programs and of promoting the solvency of the Kentucky workers’ compensation system. Cates v. Kroger, 2021 Ky. LEXIS 311 (Ky. Aug. 26, 2021).

69.— Coal Workers.

Dismissal of a motion to reopen a workers’ compensation claim arising from pneumoconiosis was proper because the worker had received no additional exposure to coal dust, and KRS 342.125(5)(a) required a worker seeking to reopen an award rendered under KRS 342.732 to make a preliminary showing that included a progression of pneumoconiosis, the development of respiratory impairment due the disease, and two additional years of continuous exposure to the hazards of the disease in Kentucky; the additional-exposure requirement was not arbitrary or capricious, and did not violate the Kentucky Constitution. Bolin v. T & T Mining, 231 S.W.3d 130, 2007 Ky. LEXIS 171 ( Ky. 2007 ).

70.State Departments.

KRS 132.380 , relating to the examination of candidates for the office of county tax commissioner, does not confer arbitrary power on the department of revenue, although the department has discretion as to the character of questions and the standards of grading. Burke v. Department of Revenue, 293 Ky. 281 , 168 S.W.2d 997, 1943 Ky. LEXIS 607 ( Ky. 1943 ).

71.— Revocation of Licenses.

Motor transportation department under authority of motor carrier act could suspend or revoke certificate of carrier who violated law, where such carrier had opportunity of hearing, trial, and appeal. Parrish v. Claxon Truck Lines, Inc., 286 S.W.2d 508, 1955 Ky. LEXIS 98 ( Ky. 1955 ).

72.— Employment of Personnel.

An act which authorized state departments to employ attorneys when the departments “deem it necessary” was not an unconstitutional delegation of legislative power, nor did it confer absolute and arbitrary power, nor was it an act whose taking effect depended upon the approval of any other authority than the general assembly. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

73.— Dismissal of School Superintendent.

It was not arbitrary and capricious for Commissioner of Education to require acting county school superintendent to dismiss former school superintendent who had been reassigned as an at-will employee and against whom serious charges of financial misconduct had been brought while formerly employed as superintendent. Shepherd v. Boysen, 849 F. Supp. 1168, 1994 U.S. Dist. LEXIS 5330 (E.D. Ky. 1994 ).

74.Road Funds.

Although the allocation of the rural secondary road fund among all counties on the basis of rural population and rural road use, regardless of the amount of tax collected in each county, did not consider the over-all population of each county or the number of vehicles per mile of rural roads in accordance with the formulae for distribution of road funds prescribed by KRS 177.360 and 179.410 , the allocation was not unconstitutionally arbitrary under this section, nor did it constitute special or local legislation as prohibited by Const., §§ 59 and 60, since those formulae were not so directly related to the public purpose of improving and maintaining rural roads as to require their inclusion in the basis used for allocation; the basis used was reasonably related to the public purpose, and the resulting classification was reasonable. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

75.— Classification of prisoners.

Department of Corrections policies and procedures regarding reclassification of inmates to less secure facilities did not create a liberty interest in such reassignment, where override system was also mandated by Department procedure; therefore defendant had no right to a minimum security classification. Mahoney v. Carter, 938 S.W.2d 575, 1997 Ky. LEXIS 6 ( Ky. 1997 ).

76.Franchises.

Where a section of a fiscal court resolution forbade owners of cable television stations to bid on any cable television district franchises other than those in the districts in which they were presently operating, there was no rational reason for such provision and it was unconstitutional under this section. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

While a fiscal court has the right to make reasonable classifications relating to cable television service, there must be a reasonable relationship between the resolution and the purpose to be accomplished and the resolution must tend toward the accomplishment or promotion of public safety, health, peace, good order or morals. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

77.Inheritance.

Former law providing that a bastard should inherit only from his mother was unconstitutional under this section since the state has no legitimate interest in unjustly prohibiting an illegitimate child from inheriting from its father simply because it was born out of wedlock. Rudolph v. Rudolph, 556 S.W.2d 152, 1977 Ky. App. LEXIS 806 (Ky. Ct. App. 1977).

78.Public Employees.

So long as it is not based upon a constitutionally impermissible reason, a decision to terminate the employment of a public officer or employee does not raise an issue under this section. Bowlin v. Thomas, 548 S.W.2d 515, 1977 Ky. App. LEXIS 654 (Ky. Ct. App. 1977).

The denial of the employee’s rights to seek review of his discharge before the personnel board was arbitrary, where the employee was required to resign from the part-time “status” position to be reappointed the next day to the full-time position, there was no competition for the position when the employee’s classification was changed, and the employee was working full-time hours and the reclassification was simply a change “on the books” to reflect that. Bunch v. Personnel Bd., Commonwealth, 719 S.W.2d 8, 1986 Ky. App. LEXIS 1469 (Ky. Ct. App. 1986).

Defendants were entitled to summary judgment on civil rights claims asserted by deputy sheriff who was discharged after he was convicted of hindering prosecution and official misconduct; the deputy’s claim under Ky. Const., § 2 failed as a matter of law because the deputy failed to demonstrate that defendants’ actions were in any way arbitrary or capricious. Humphrey v. Scott County Fiscal Court, 2005 U.S. Dist. LEXIS 32362 (E.D. Ky. Dec. 9, 2005), aff'd, 211 Fed. Appx. 390, 2006 FED App. 0861N, 2006 U.S. App. LEXIS 29193 (6th Cir. Ky. 2006 ).

Defendants were entitled to summary judgment on civil rights claims asserted by deputy sheriff who was discharged after he was convicted of hindering prosecution and official misconduct; the deputy’s claim under Ky. Const. § 2 failed as a matter of law because the deputy failed to demonstrate that defendants’ actions were in any way arbitrary or capricious. Humphrey v. Scott County Fiscal Court, 2005 U.S. Dist. LEXIS 32362 (E.D. Ky. Dec. 9, 2005), aff'd, 211 Fed. Appx. 390, 2006 FED App. 0861N, 2006 U.S. App. LEXIS 29193 (6th Cir. Ky. 2006 ).

In a case arising out of the death of a female inmate while she was incarcerated in a county jail, the appellate court was unable to discern non-arbitrary reason for applying a jail policy requiring an inmate to be moved to the general population within four hours of arrival only to male inmates; based on its determinations, the circuit court would be able to determine whether the defense that the decision when to move female inmates from holding cells to the general population was a discretionary act. Coleman v. Smith, 405 S.W.3d 487, 2012 Ky. App. LEXIS 186 (Ky. Ct. App. 2012).

State law enforcement officer was no longer entitled to a pretermination hearing when he was reclassified as a state police employee rather than an executive branch employee; thus, the denial of such a hearing was not arbitrary action. Dep't of Ky. State Police v. Garland, 2013 Ky. App. LEXIS 118 (Ky. Ct. App. Aug. 2, 2013), review denied, ordered not published, 2014 Ky. LEXIS 269 (Ky. June 11, 2014).

Circuit court properly denied a university's motions to dismiss actions filed by two employees after they were denied long-term disability (LTD) benefits because the employees had a property interest as beneficiaries of the LTD trust which could not be arbitrarily denied by the university, the court had the power and duty to grant injunctive relief that would enjoin the university to direct the trustee to grant such benefits under its LTD program, whatever immunity the university had as a state agency did not preclude a declaratory judgment action based on allegations that it violated the state constitution when it denied the employees benefits, and the university's immunity did not, as a matter of law, preclude injunctive relief. Univ. of Ky. v. Davis, 551 S.W.3d 443, 2017 Ky. App. LEXIS 516 (Ky. Ct. App. 2017).

79.Venue.

Divorce venue statute requirement under KRS 452.470 that venue is in home county of the wife if she has an actual residence in the state, and in the county of the husband if she does not, is unconstitutional under the equal protection clause of the Fourteenth Amendment of the United States Constitution since a gender-based venue does not serve important governmental objectives and is not substantially related to the achievement of those objectives, and under this section since the treatment of litigants under KRS 452.470 is patently unequal, arbitrary and unjust. Hummeldorf v. Hummeldorf, 616 S.W.2d 794, 1981 Ky. App. LEXIS 242 (Ky. Ct. App. 1981).

80.Milk Marketing Law.

The Kentucky Milk Marketing Law, on its face, is violative of this section. The statutory purpose of the Law is to prevent monopolies and unfair practices in the sale of milk and milk products. The Law is in reality and in practice not an anti-monopoly statute, but is rather a minimum mark-up law. An enactment of such a nature is an arbitrary exercise of power by the General Assembly over the lives and property of free men. Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ).

81.Equal Protection.

Strip mining regulation which denies a due process hearing to an aggrieved party based solely on his financial inability to pay the penalties which he seeks to appeal is unconstitutional, in violation of the equal protection clauses of both the United States and Kentucky Constitutions. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

Appellate court’s failure to publish all opinions, along with the prohibition found in CR 76.28 against citing unpublished opinions, did not violate defendant’s due process or equal protection rights where a favorable unpublished Court of Appeals opinion, even if it had been published, could have had no legal effect on a prior Supreme Court decision which affirmed defendant’s sentence. Goodlet v. Commonwealth, 825 S.W.2d 290, 1992 Ky. App. LEXIS 33 (Ky. Ct. App. 1992).

KRS 510.100 , which criminalized deviate sexual intercourse between consenting adults of the same sex, even if the act was committed in the privacy of a home, violated the Kentucky Constitution as: (1) An invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment. Commonwealth v. Wasson, 842 S.W.2d 487, 1992 Ky. LEXIS 140 ( Ky. 1992 ).

A statute involving the regulation of economic matters comports with both state and federal equal protection if the law is rationally related to a legitimate government objective; the constitutionality of a statute will be upheld if its classification is not arbitrary, or if it is founded upon any substantial distinction suggesting the necessity or propriety of such legislation. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Legislative distinctions between persons, under traditional equal protection analysis, must bear a rational relationship to a legitimate state end, and those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. 902 S.W.2d 842, 1995 Ky. App. LEXIS 77 .

There was no rational basis for the geographically-based distinction created by KRS 159.051 between students subject to losing their operator’s licenses under the statute and students precluded from the statute; thus, KRS 159.051 was unconstitutional. D.F. v. Codell, 127 S.W.3d 571, 2003 Ky. LEXIS 262 ( Ky. 2003 ).

Where defendant’s newborn child testified positive for cocaine, trying her for first degree wanton endangerment of her unborn child under KRS 508.060(1) did not violate her due process and equal protection rights under Ky. Const. §§ 2, 3, and 11; abortion laws did not grant a woman the unfettered guarantee to an abortion at any time and certainly not to one on the day a woman gave birth. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

A State Health Plan issued by the Cabinet for Health and Family Services which established criteria for a pilot project to study the risks and benefits of allowing angioplasty at hospitals without immediate access to an open-heart surgery facility, was limited to one hospital in eastern Kentucky and one hospital in western Kentucky, and required the hospitals to be located thirty (30) minutes from an on-site open-heart surgery center, was not unconstitutional, as: (1) such did not constitute special or local legislation, in violation of Ky. Const. §§ 59 and 60; (2) the classification was reasonable, natural, and consistent with the legitimate purpose of the government; and (3) it passed the rational basis test. St. Luke Hosps., Inc. v. Commonwealth, 254 S.W.3d 830, 2008 Ky. App. LEXIS 146 (Ky. Ct. App. 2008).

KRS 342.316(3)(b)(4)(e) denied a workers’ compensation benefits claimant equal protection because it discriminated between him and a similarly-situated worker whose employer also submitted evidence of category 1 disease but whose claim was not subject to the second phase of the consensus process; KRS 342.316(3)(b)(4)(e) creates two classes of workers based solely on the amount of discrepancy between the worker’s and employer’s evidence, and because there is no rational or reasonable basis for such discrimination where the employer’s evidence effectively concedes the worker’s entitlement to a retraining incentive benefit. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 2009 Ky. LEXIS 71 ( Ky. 2009 ).

Consensus procedure required by KRS 342.316 for proving the existence of coal workers’ pneumoconiosis, and the clear and convincing standard required to rebut such a consensus, violated the equal protection guarantees of U.S. Const. amend. XIV and Ky. Const. § 1-3 because there was no rational basis or substantial and justifiable reason for the disparate treatment of coal workers. Pneumoconiosis caused by exposure to coal dust was the same disease as pneumoconiosis caused by exposure to dust particles in other industries, yet coal workers faced different, higher standard-of-proof requirements than those other workers. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Employee's claim that Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) violated equal protection was subject to rational basis review given that workers' compensation statutes concerned matters of social and economic policy. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) did not violate equal protection because paying employees between the ages of 57 and 65 a monetary benefit that was not tied to retraining may have encouraged them to leave the coal mining industry, thus removing employees susceptible to more severe impairment from the work place, and as a result, treating retraining incentive benefits eligible employees differently was rationally related to the purpose of those benefits. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

2017 Ky. Acts 1 does not violate the equal protection provisions of the Kentucky Constitution; the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Employers might be attracted to locate in a state where wages are lower as opposed to a state where wages are higher, and to the extent this conclusion might be characterized as speculative, it is undoubtedly rational; the legislature can clearly make a policy decision that 2017 Ky. Acts 1 might result in more jobs, albeit at lower wages, and that this result, in turn, might benefit the overall economic climate of Kentucky. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Rational basis review is appropriate for evaluating 2017 Ky. Acts 1 since the Act is expressly permitted by the Taft-Hartley Act. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

82.— Voir Dire.

Section 59 of the Constitution is more than simply another way of restating the generalized language of the equal protection clause of the Fourteenth Amendment to the United States Constitution; this section and Const., §§ 1 and 3, which provide that the General Assembly is denied arbitrary power and shall treat all persons equally, suffice to embrace the equal protection clause to the Fourteenth Amendment. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

Although the striking of one (1) black juror for a racial reason is an equal protection violation, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown, that does not mean the striking of one (1) black juror can constitute a prima facie case if the racial reason is not apparent from statistical inference or other reasons; the defendant must show he is a member of a racial group, that the prosecutor used peremptory challenges to exclude members of that group, and that these facts and other circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

A female defendant is not denied equal protection under the law when the Commonwealth peremptorily challenges female jurors, as the prohibitions concerning the utilization of peremptory challenges, as described in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (1986), do not extend beyond racial discrimination. Hannan v. Commonwealth, 774 S.W.2d 462, 1989 Ky. App. LEXIS 92 (Ky. Ct. App. 1989).

Striking for cause of three (3) jurors because of their inability to set aside their views about the death penalty did not deprive murder defendant of his right to a fair trial. Mabe v. Commonwealth, 884 S.W.2d 668, 1994 Ky. LEXIS 98 ( Ky. 1994 ).

83.Civil Rules.

It takes more than a showing that a civil rule cannot be applied with mathematical certitude to demonstrate that it is unconstitutionally arbitrary. Tohtz v. United States, 743 S.W.2d 45, 1988 Ky. App. LEXIS 5 (Ky. Ct. App. 1988).

CR 11 is not violative of this section for being arbitrary. Tohtz v. United States, 743 S.W.2d 45, 1988 Ky. App. LEXIS 5 (Ky. Ct. App. 1988).

84.Sales.

KRS 365.030 is a minimum mark-up law, and it is facially unconstitutional as being violative of this section. Remote Services, Inc. v. FDR Corp., 764 S.W.2d 80, 1989 Ky. LEXIS 2 ( Ky. 1989 ).

85.Prison Visitation Regulations.

Regulations governing general prison visitation did not contain language requiring that a particular result be reached upon a finding that substantive predicates within the regulations are met, and since the overall effect of the regulations is not such that an inmate can reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the conditions listed therein, said regulations did not establish a liberty interest entitled to constitutional protections. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 109 S. Ct. 1904, 104 L. Ed. 2d 506, 1989 U.S. LEXIS 2466 (U.S. 1989).

The denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, and is not independently protected by this section. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 109 S. Ct. 1904, 104 L. Ed. 2d 506, 1989 U.S. LEXIS 2466 (U.S. 1989).

86.Right to a Fair Trial.

A prosecutor’s trial conduct, which included the impermissible glorification of the victim, combined with the sensationalization of that victim’s suffering, tended to pressure the jury to decide the issue of guilt or innocence on considerations apart from the evidence of the defendant’s culpability, and thus was improper. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

Admission of witness testimony describing the contents of a destroyed surveillance videotape would not violate defendant's right to a fair trial because the testimony was admissible under Ky. R. Evid. 402 and 1004, and the standards that informed those rules provided adequate safeguards against their being applied arbitrarily in violation of this section. Commonwealth v. Newkirk, 2014 Ky. App. LEXIS 180 (Ky. Ct. App. Nov. 21, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1048 (Ky. Ct. App. Nov. 21, 2014).

87.Abuse of Discretion.

There was no substantial evidence in the record to support the declaration of blight made by the Board of Aldermen, and merely establishing a large administrative and legislative record does not entitle a legislature or administrative agency to declare an apple to be an orange; the record may be replete with expert testimony on similarities between the fruits, however, a legislature or administrative agency, regardless of the size of the record it establishes, cannot lawfully make such a declaration; to, by legislative fiat, declare an object to be something it is not is such an abuse of discretion as to be arbitrary. Prestonia Area Neighborhood Ass'n v. Abramson, 797 S.W.2d 708, 1990 Ky. LEXIS 100 ( Ky. 1990 ).

88.Appointing Authority.

No appointing authority may exercise absolute and arbitrary power without being subject to review either by another administrative agency or authority of the courts. Louisville by Kuster v. Milligan, 798 S.W.2d 454, 1990 Ky. LEXIS 114 ( Ky. 1990 ).

89.Destruction of Evidence.

Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law; therefore, where prosecutor had no objection to defendant making independent tests of defendant’s blood sample, and only after the request was made did either party discover the sample had been destroyed pursuant to established lab policy, it was immaterial that the evidence might have assisted defendant. Allen v. Commonwealth, 817 S.W.2d 458, 1991 Ky. App. LEXIS 125 (Ky. Ct. App. 1991).

90.Police Officers’ Outside Employment.

Any contention that a police officer has a constitutional right to work for a person with a reputation for involvement in criminal activity borders on the absurd, while prohibition against employment in places where the sale of liquor is a primary business and a requirement of indemnification and insurance by the police officers on behalf of the county government were also not violative of this section of the Constitution. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

Regulation which requires prior approval by the Chief of Police for police officers to accept outside employment leads directly to the conclusion that arbitrary power has been granted and the regulation was invalidated. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

The prior authorization by the Chief of Police requirement for officers to accept outside employment was held invalid but was separate from the general restrictions upon off-duty employment, as the restrictions were not essentially and inseparably connected with and dependent upon the prior authorization requirement and were complete and capable of standing alone; severance of the prior authorization provision did not affect the intent of the legislative body in enacting the remainder of the county police force regulations. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

91.Sentencing.

Where evidence in a capital murder case showed that appellant was a 19-year old man of limited mental capabilities involved in a five (5) week marriage with victim that suffered from numerous separations and regular infidelities on the victim’s part, appellant and victim fought constantly, and appellant was aware that victim had been with another man on the night of her death, trial court’s failure to provide the jury with an instruction to consider extreme mental or emotional disturbance as a mitigating factor violated appellant’s constitutional right to individualized sentencing and due process. Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ).

KRS 189A.010(4)(c) is not arbitrary and does not offend this section; the defendant failed to establish that those with a blood alcohol level of 0.18 are not seriously impaired or that they do not impose a greater threat to themselves and others than less intoxicated drivers of motor vehicles. Cornelison v. Commonwealth, 2000 Ky. App. LEXIS 73 (Ky. Ct. App. July 7, 2000), aff'd, 52 S.W.3d 570, 2001 Ky. LEXIS 133 ( Ky. 2001 ).

Defendant’s probation ineligibility did not violate this section because the General Assembly had a rational reason for denying probation under Ky. Rev. Stat. Ann. § 532.045(2) to defendants, youthful offenders and adults alike, who were convicted of committing incest: protecting the safety of the public, and defendant’s juvenile sexual offender risk re-assessment report opined that he continued to remain a high risk for sexual reoffending and had chronic homicidal ideations about killing his adoptive parents and siblings. Bloyer v. Commonwealth, 2020 Ky. App. LEXIS 99 (Ky. Ct. App. Aug. 28, 2020, sub. op., 2020 Ky. App. Unpub. LEXIS 828 (Ky. Ct. App. Aug. 28, 2020).

92.— Enhanced.

Nothing in KRS 439.265 , the shock probation statute, leads one to the rational belief that a prisoner is privileged to negotiate his release by agreeing to an enhanced sentence. A longer sentence may not supply the quid pro quo for probationary release. A rule which would allow a prisoner to obtain probation in exchange for a longer sentence in the event of revocation would not only result in chaos, but invite intrusion of arbitrary power which is foreign to Kentucky’s system of government. Moreover, such practice would offend the due process clauses and double jeopardy clauses of both the state and federal Constitutions. Galusha v. Commonwealth, 834 S.W.2d 696, 1992 Ky. App. LEXIS 168 (Ky. Ct. App. 1992).

Defendant’s twenty-year sentence for the Class D felony of assaulting a police officer invoked no sense of fundamental unfairness and did not constitute an exercise of absolute and arbitrary power as proscribed by the Kentucky Constitution because he offered nothing that indicated that he had been arbitrarily singled out for severe punishment, and because nothing in the record suggested that he had been subjected to unequal, disparate, or arbitrary treatment; defendant himself conceded that the sentencing evidence showed that he was almost always in trouble with the law. Thornton v. Commonwealth, 421 S.W.3d 372, 2013 Ky. LEXIS 401 ( Ky. 2013 ).

93.Justification.

Justification under Const., § 59 equates to reasonable justification under Ky. Const., §§ 2 and 3. Revenue Cabinet v. Smith, 875 S.W.2d 873, 1994 Ky. LEXIS 34 (Ky.), cert. denied, 513 U.S. 1000, 115 S. Ct. 509, 130 L. Ed. 2d 417, 1994 U.S. LEXIS 8026 (U.S. 1994).

94.Economic and Business Rights.

Acts 1988, Chapter 225 amendments to KRS 304.35-010 , et seq., that required the Insurance Commissioner, if he determined that a reasonable degree of competition failed to exist for any line of casualty or property insurance, to make provisions for expanded funding and to thereafter order the Fair Access to Insurance Requirements (FAIR) Plan’s governing committee to provide a residual market mechanism was already functioning were challenged as violative of this section by automobile insurance company, but were upheld over an equal protection argument because when a party is caused to bear a different economic burden or enjoy a different economic benefit, where economic and business rights are involved, rather than fundamental rights, substantive due process requires that a statute be rationally related to a legitimate state objective and that the question of reasonableness is one of degree and must be based on the facts of the particular case. Stephens v. State Farm Mut. Auto. Ins. Co., 894 S.W.2d 624, 1995 Ky. LEXIS 7 ( Ky. 1995 ).

Health care provider was required to make a free copy of a patient’s medical record available to the patient’s attorneys as authorized agents for the patient; however, KRS 422.317(1) allowed the provider to charge for additional expenses such as mailing or faxing. Imposing this requirement did not violate Ky. Const. § 2, nor was there any merit to the provider’s takings and equal protection arguments under U.S. Const. amends. V, XIV. William C. Eriksen, P.S.C. v. Gruner & Simms, 400 S.W.3d 290, 2013 Ky. App. LEXIS 77 (Ky. Ct. App. 2013).

95.Insurance.

Acts 1988, Chapter 225 amendments to KRS 304.35-010 , et seq., that required the Insurance Commissioner, if he determined that a reasonable degree of competition failed to exist for any line of casualty or property insurance, to make provisions for expanded funding and to thereafter order the Fair Access to Insurance Requirements (FAIR) Plan’s governing committee to provide a residual market mechanism was already functioning were challenged as violative of this section by automobile insurance company which argued that the amendments required it to support a residual market mechanism, the FAIR Plan, in which none of its lines of insurance could participate. The Supreme Court held that the amendments were constitutional and absolutely did not impose such a classification as to include persons within the class who were not rationally related to the goal of the legislation. Stephens v. State Farm Mut. Auto. Ins. Co., 894 S.W.2d 624, 1995 Ky. LEXIS 7 ( Ky. 1995 ).

96.— Rehabilitation/Liquidation Proceedings.

The state did not violate this section and was justified in interposing its authority on behalf of the public in conducting the liquidation proceedings for an insolvent insurer under KRS Subtitle 33 of Chapter 304 because the interest of the public required it, and the means were reasonably necessary for accomplishing the purpose and not unduly oppressive upon individuals. Kentucky Cent. Life Ins. Co. v. Stephens, 897 S.W.2d 583, 1995 Ky. LEXIS 60 ( Ky. 1995 ).

97.Regulations of Cabinet.

Regulations of Transportation Cabinet governing lighted message boards which prohibited commercial speech but allowed time, date, temperature or weather information to be displayed were substantially broader than necessary to protect the governmental interests of highway safety and aesthetics. The Cabinet failed to demonstrate a reasonable connection between the requirements of highway safety and aesthetics and had not narrowly tailored the regulation to achieve any desired objectives and therefore developed an unconstitutional regulation on commercial free speech as well as upon noncommercial free speech because the state had chosen to allow some noncommercial messages to be displayed. Flying J Travel Plaza v. Transportation Cabinet, Dep't of Highways, 928 S.W.2d 344, 1996 Ky. LEXIS 41 ( Ky. 1996 ).

98.Private Use of Public Property.

Abutting property owner did not have right of private railway access over property reacquired by city under operation of law; reasonable right of access did not encompass grant of private right of railway access as to do so would be in contravention of the right enjoyed by all other members of the public or other abutting property owners and would constitute use of public property for a private purpose prohibited by Ky. Const., §§ 2, 13, 179, and 242. City of Louisville v. Louisville Scrap Material Co., 932 S.W.2d 352, 1996 Ky. LEXIS 62 ( Ky. 1996 ).

99.County Board of Education.

County board of education is a political body with a corporate structure and is entitled to the protection of Const., § 2. Reis v. Campbell County Bd. of Educ., 938 S.W.2d 880, 1996 Ky. LEXIS 130 ( Ky. 1996 ).

100.Drugs and Narcotics.

The statutory system which criminalizes the possession of marijuana and includes hemp does not violate Section 2 of the Kentucky Constitution. Commonwealth v. Harrelson, 14 S.W.3d 541, 2000 Ky. LEXIS 25 ( Ky. 2000 ).

County board of education had an inherent right to appeal decision of tribunal’s that teacher should not have been terminated on grounds that tribunal decision was arbitrary even though the board did not have a liberty interest at stake. Reis v. Campbell County Bd. of Educ., 938 S.W.2d 880, 1996 Ky. LEXIS 130 ( Ky. 1996 ).

Statutes barring trafficking in or possessing marijuana did not violate the right to privacy because the statutes did not criminalize private possession and sale out of misplaced concerns about morality or public decency, as Kentucky citizens’ health, safety and well-being were implicated. Seum v. Bevin, 2019 Ky. App. LEXIS 29 (Ky. Ct. App. Mar. 8, 2019), sub. op., 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Petition alleging statutes barring trafficking in and possessing marijuana were unconstitutional was properly dismissed because (1) finding marijuana was safe for medical purposes was for the legislature, and (2) the Kentucky Constitution did not authorize Kentucky’s courts to implement statutory changes reflecting public policy. Seum v. Bevin, 2019 Ky. App. LEXIS 29 (Ky. Ct. App. Mar. 8, 2019), sub. op., 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Ky. Rev. Stat. Ann. §§ 218A.1421 and 218A.1422 did not violate Ky. Const. § 2 or the right to privacy insofar as the statutes criminalized the possession and sale of marijuana for medical purposes because the statutes did not criminalize the private possession and sale of marijuana out of misplaced concerns about morality or public decency, as the definition of marijuana implicated the health, safety, and well-being of the citizens of Kentucky. Seum v. Bevin, 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

101.Juvenile Offenders.

The statutory scheme established for the discretionary transfer of juvenile offenders to Circuit Court, KRS 640.010 , is not constitutionally infirm or violative of a juvenile’s due process rights because it neglects to provide a standard of proof, much less the standard of clear and convincing proof. Stout v. Commonwealth, 44 S.W.3d 781, 2000 Ky. App. LEXIS 86 (Ky. Ct. App. 2000).

Requiring juveniles adjudicated public offenders for various sex offenses to submit DNA samples in accordance with Kentucky’s DNA sampling statutes, KRS 17.170 through 17.175 (KRS 17.171 through KRS 17.174 are now repealed), did not violate the Fourth Amendment or Ky. Const. §§ 1, 2, and 11 because the juveniles’ privacy interests did not outweigh law enforcement’s interest in solving crimes. Petitioner F v. Brown, 306 S.W.3d 80, 2010 Ky. LEXIS 70 (Ky.), cert. denied, 562 U.S. 985, 131 S. Ct. 422, 178 L. Ed. 2d 329, 2010 U.S. LEXIS 8178 (U.S. 2010).

102.Legislative Redistricting.

Where KRS 67C.135(3) contained sufficient criteria for drawing new legislative districts and the fiscal court had no power or discretion as to the creation of the initial districts, the statute did not violate the prohibition against arbitrary power or the doctrine of separation of powers in Ky. Const., §§ 2, 27, 28, 29 when it required fiscal court approval of the plan without permitting it to make further refinements after-the-fact. Owens v. Jefferson County Fiscal Court, 128 S.W.3d 834, 2004 Ky. App. LEXIS 37 (Ky. Ct. App. 2004).

103.Child Support Obligations.

Award of $5,000 in punitive damages in neighbors’ action concerning the use of a dirt road which bordered the parties’ properties was affirmed, as the neighbors provided adequate proof that defendants acted with malice or oppression in denying the neighbors access to the road as required by KRS 411.184 , and the amount of the award did not violate due process rights under Ky. Const. § 2, as the award was reasonable in light of and proportionate to the conduct of the defendants, which included harassment of the neighbors. Roberie v. VonBokern,2006 Ky. LEXIS 186 ( Ky. 2006 ).

Trial court’s order that allowed the mother to impute a child support obligation for a prior-born child, pursuant to KRS 403.212(2)(g)(4), was upheld, in part, because the father had not provided sufficient evidence to establish that his due process rights were violated when the mother was not collecting a child support obligation from the father for the prior-born child. Kimbrough v. Child Support Div. ex rel. Belmar, 215 S.W.3d 69, 2006 Ky. App. LEXIS 226 (Ky. Ct. App. 2006).

104.Punitive Damages.

Since the property owners’ act of vandalizing their neighbors’ gate involved deliberate malice and deceit, the jury’s punitive damage award of 3.57 times the compensatory damages did not violate due process. McConnell v. Stivers, 2007 Ky. App. LEXIS 5 (Ky. Ct. App. Jan. 12, 2007).

105.Change In Penal Law.

Because Commonwealth v. Morris, 142 S.W.3d 654, 2004 Ky. LEXIS 153 ( Ky. 2004 ), which held that all viable fetuses were “persons” protected under the penal statutes, was decided a year and half before defendant ingested the cocaine that served as the basis for a wanton endangerment charge under KRS 508.060(1), she had fair notice that her conduct could result in criminal charges. Therefore, the rights afforded her by Ky. Const. §§ 2 and 11 were not violated. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

Collection of juveniles’ DNA samples pursuant to KRS 17.174 did not violate the juveniles constitutional rights to privacy under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 11; and to due process of law under U.S. Const. amend. VI and Ky. Const. §§ 2 and 11. Petitioner F v. Brown, 2008 Ky. App. LEXIS 42 (Ky. Ct. App. Feb. 22, 2008, sub. op., 2008 Ky. App. Unpub. LEXIS 532 (Ky. Ct. App. Feb. 22, 2008).

106.Probation Revocation.

In proceedings to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 , while defendant argued that his due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated as the Circuit Court refused to consider possible alternative punishments, no legal authority existed that required the Circuit Court to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support. Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

Defendant’s due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated by the Circuit Court’s failure to make findings of fact specifying the evidence relied upon to support its decision to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 . Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

107.Due Process.

City’s Bow-and-Arrow Ordinance allowing discharge of arrows within the city limits passed rational-basis scrutiny because reining in the deer population was clearly a legitimate government purpose, and concluding that allowing arrows to be discharged within city limits would further that purpose was not wholly irrational. Sheffield v. City of Fort Thomas, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

Kentucky’s registry scheme used to substantiate allegations of child abuse did not violate the alleged abuser’s constitutional right to due process under the Fourteenth Amendment, U.S. Const. amend. XIV, and Ky. Const. § 2. That scheme provided the alleged abuser with fair notice of the allegation and a rigorous trial-type proceeding for addressing the allegation. W.B. v. Commonwealth, 2011 Ky. App. LEXIS 47 (Ky. Ct. App. Mar. 11, 2011).

Appellant property owners’ action alleging due process violations under Ky. Const. § 2 regarding nomination of their property to the National Register of Historic Places was improperly dismissed because the procedure was arbitrary in that no fixed time was set at which the number and names of landowners were determined for the purposes of the required objections. Norton v. Perry, 2012 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 12, 2012), op. withdrawn, sub. op., 2013 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 11, 2013).

108.Search and Seizure.

No violation of Ky. Const. §§ 2, 10 or the Fourth Amendment occurred when, for no articulable reason, an officer ran a vehicle’s tags in the computer system in his patrol car, after observing the vehicle parked or traveling on a public street, thereby exposing its license plate to public view. That check provided a reasonable suspicion for a traffic stop, even though the driver was not the car’s owner, because the officer testified that the driver met the description of the owner who had a suspended license. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (Ky. Ct. App. Oct. 12, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1040 (Ky. Ct. App. Oct. 12, 2012).

Running of a vehicle’s license plate information without guiding police department policies and/or supervisor involvement, is not arbitrary in violation of Ky. Const. § 2. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (Ky. Ct. App. Oct. 12, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1040 (Ky. Ct. App. Oct. 12, 2012).

Cited:

Covington & Lexington Turnpike Road Co. v. Sanford, 164 U.S. 578, 17 S. Ct. 198, 41 L. Ed. 560, 1896 U.S. LEXIS 1891 (U.S. 1896); Adams Express Co. v. Kentucky, 238 U.S. 190, 35 S. Ct. 824, 59 L. Ed. 1267, 1915 U.S. LEXIS 1613 (U.S. 1915); Lenox Land Co. v. Oakdale, 137 Ky. 484 , 125 S.W. 1089, 1910 Ky. LEXIS 591 ( Ky. 1910 ); Columbia Trust Co. v. Lincoln Institute of Kentucky, 138 Ky. 804 , 129 S.W. 113, 1910 Ky. LEXIS 138 ( Ky. 1910 ); City of Newport v. Silva, 144 Ky. 450 , 137 S.W. 546, 1911 Ky. LEXIS 533 (Ky. Ct. App. 1911); Adams Express Co. v. Commonwealth, 154 Ky. 462 , 157 S.W. 908, 1913 Ky. LEXIS 9 6 ( Ky. 1913 ); Board of Levee Comm'rs v. Johnson, 178 Ky. 287 , 199 S.W. 8, 1917 Ky. LEXIS 748 ( Ky. 1917 ) ( Ky. 1917 ); Lawrence E. Tierney Coal Co. v. Smith's Guardian, 180 Ky. 815 , 203 S.W. 731, 1918 Ky. LEXIS 151 ( Ky. 1918 ); Yewell v. Board of Drainage Comm'rs, 187 Ky. 434 , 219 S.W. 1049, 1920 Ky. LEXIS 141 ( Ky. 1920 ); Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); McCracken Fiscal Court v. McFadden, 275 Ky. 819 , 122 S.W.2d 761, 1938 Ky. LEXIS 499 ( Ky. 1938 ); Bosworth v. Lexington, 277 Ky. 90 , 125 S.W.2d 995, 1939 Ky. LEXIS 615 ( Ky. 1939 ); Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ); Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Moore v. Northern Kentucky Independent Food Dealers Ass'n, 286 Ky. 24 , 149 S.W.2d 755, 1941 Ky. LEXIS 211 ( Ky. 1941 ); Kenton & Campbell Benevolent Burial Ass'n v. Goodpaster, 304 Ky. 233 , 200 S.W.2d 120, 1946 Ky. LEXIS 9 32 ( Ky. 1946 ); Engle v. Bonnie, 305 Ky. 850 , 204 S.W.2d 963, 1947 Ky. LEXIS 865 ( Ky. 1947 ); Masonic Widows & Orphans Home & Infirmary v. Louisville, 309 Ky. 532 , 217 S.W.2d 815, 1948 Ky. LEXIS 1081 ( Ky. 1948 ); Reeves v. Wright & Taylor, 310 Ky. 470 , 220 S.W.2d 1007, 1949 Ky. LEXIS 950 ( Ky. 1949 ); Chesapeake & O. R. Co. v. Murphy, 314 Ky. 309 , 234 S.W.2d 969, 1950 Ky. LEXIS 1085 ( Ky. 1950 ); Parkrite Auto Park, Inc. v. Shea, 314 Ky. 520 , 235 S.W.2d 986, 1950 Ky. LEXIS 109 4 ( Ky. 1950 ); Eline v. Lampe, 275 S.W.2d 64, 1955 Ky. LEXIS 347 ( Ky. 1955 ); Commonwealth ex rel. Tinder v. Werner, 280 S.W.2d 214, 1955 Ky. LEXIS 152 ( Ky. 1955 ); General Electric Co. v. American Buyers Cooperative, Inc., 316 S.W.2d 354, 1958 Ky. LEXIS 42 ( Ky. 1958 ); Commonwealth ex rel. Kentucky R. Com. v. Illinois C. R. Co., 358 S.W.2d 533, 1962 Ky. LEXIS 194 ( Ky. 1962 ); Frankfort v. Triplett, 365 S.W.2d 328, 1963 Ky. LEXIS 219 ( Ky. 1963 ); Kelley v. Dailey, 366 S.W.2d 181, 1963 Ky. LEXIS 9 ( Ky. 1963 ); Crady v. Cranfill, 371 S.W.2d 640, 1963 Ky. LEXIS 110 (Ky. 1963); Idol v. Knuckles, 383 S.W.2d 910, 1964 Ky. LEXIS 64 ( Ky. 1964 ); Sturgill v. Commonwealth, Dep't of Highways, 384 S.W.2d 89, 1964 Ky. LEXIS 79 ( Ky. 1964 ); Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ); Branzburg v. Meigs, 503 S.W.2d 748, 1971 Ky. LEXIS 50 ( Ky. 1971 ); Commonwealth use of Erlanger v. Cullum, 494 S.W.2d 521, 1973 Ky. LEXIS 44 8 ( Ky. 1973 ); Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ); Carlton v. Taylor, 569 S.W.2d 679, 1978 Ky. App. LEXIS 561 (Ky. Ct. App. 1978); Creative Displays, Inc. v. Florence, 602 S.W.2d 682, 1980 Ky. LEXIS 248 ( Ky. 1980 ); Pattie A. Clay Infirmary Asso. v. First Presbyterian Church, 605 S.W.2d 52, 1980 Ky. App. LEXIS 368 (Ky. Ct. App. 1980); Petrey v. Flaugher, 505 F. Supp. 1087, 1981 U.S. Dist. LEXIS 10458 (E.D. Ky. 1981 ); Fiscal Court of Jefferson County v. Don Ridge Land Developing Co., 669 S.W.2d 922, 1984 Ky. LEXIS 23 3 ( Ky. 1984 ); Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984); Merritt v. Campbellsville, 678 S.W.2d 788, 1984 Ky. App. LEXIS 625 (Ky. Ct. App. 1984); Stevens v. Flannery, 700 S.W.2d 78, 1985 Ky. App. LEXIS 688 (Ky. Ct. App. 1985); Singleton v. Commonwealth, 740 S.W.2d 159, 1986 Ky. App. LEXIS 1484 (Ky. Ct. App. 1986); Transportation Cabinet, Dep't of Highways v. Express Mart, 759 S.W.2d 600, 1988 Ky. App. LEXIS 211 (Ky. Ct. App. 1988); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ); Natural Resources & Environmental Protection Cabinet v. Williams, 768 S.W.2d 47, 1989 Ky. LEXIS 23 ( Ky. 1989 ); Board of Trustees v. Hayse, 782 S.W.2d 609, 1989 Ky. LEXIS 99 (Ky. 1989); McGregor v. Commonwealth, 784 S.W.2d 785, 1990 Ky. App. LEXIS 25 (Ky. Ct. App. 1990); Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1990 U.S. App. LEXIS 4877 (6th Cir. Ky. 1990 ); Moore v. Kentucky State Penitentiary, 789 S.W.2d 788, 1990 Ky. App. LEXIS 30 (Ky. Ct. App. 1990); Commonwealth v. Foley, 798 S.W.2d 947, 1990 Ky. LEXIS 121 ( Ky. 1990 ); Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ); Commonwealth v. Miles, 816 S.W.2d 657, 1991 Ky. App. LEXIS 18 (Ky. Ct. App. 1991); Kentucky Ass'n of Realtors, Inc. v. Musselman, 817 S.W.2d 213, 1991 Ky. LEXIS 109 ( Ky. 1991 ); Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ); Triple M Mining Co. v. Natural Resources & Envtl. Protection Cabinet, 906 S.W.2d 364, 1995 Ky. App. LEXIS 146 (Ky. Ct. App. 1995); Belt v. Commonwealth, 2 S.W.3d 790, 1999 Ky. App. LEXIS 136 (Ky. Ct. App. 1999); Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 2002 FED App. 0175P, 2002 U.S. App. LEXIS 9510 (6th Cir. Ky. 2002 ); K & P Grocery, Inc. v. Commonwealth, 103 S.W.3d 701, 2002 Ky. App. LEXIS 2327 (Ky. Ct. App. 2002); Rabourn v. Commonwealth, 2006 Ky. App. LEXIS 216 (Ky. Ct. App. 2006); Emberton v. GMRI, Inc., 299 S.W.3d 565, 2009 Ky. LEXIS 250 ( Ky. 2009 ); Dunlap v. Commonwealth, 435 S.W.3d 537, 2013 Ky. LEXIS 292 ( Ky. 2013 ) ; Estate of McVey v. Dep't of Revenue, Fin. & Admin. Cabinet, 2013 Ky. App. LEXIS 171 (Ky. Ct. App. Dec. 13, 2013); Ky. State Police v. Conder, 447 S.W.3d 189, 2014 Ky. App. LEXIS 166 (Ky. Ct. App. 2014).

Notes to Unpublished Decisions

1.In General.

Unpublished decision: Operating property statute, KRS 136.120 , taxed the cable television company for the right to public thoroughfares of the cities in which it operated in the same manner that it taxed other domestic public service corporations enjoying that privilege, thus ensuing the taxing law was equally applied; accordingly, the cable television company did not show that either its equal protection or substantive due process rights under the Kentucky Constitution were violated. Revenue Cabinet v. Comcast Cablevision, 147 S.W.3d 743, 2003 Ky. App. LEXIS 330 (Ky. Ct. App. 2003).

Opinions of Attorney General.

Scenic strips and easements adjacent to the highway rights of way could be legally purchased for beautification purposes and highway could be expended for such purpose. OAG 66-35 .

A board of education would be acting at its peril, both as a board and individually if it dismissed any employee without the superintendent’s recommendation and without being able to show sufficient cause although KRS 160.380 leaves open the question of whether the dismissal of a nontenure employee must be recommended by the superintendent. OAG 73-366 .

The residency provisions of subsections (15) and (22) (now subsections (17) and (24)) of KRS 150.010 do not render the section unconstitutional in the absence of a showing that the differential treatment of $5 for a resident license and $10 for a non-resident license is arbitrary or that the statute’s discrimination is so without reason that no conceivable situation of fact can be found to justify it. OAG 74-510 .

A legislative attempt to give the union or the majority of miners at a given mine the authority to appoint or elect mine safety committee members who are required to be paid by the mine employer would clearly be prohibited as an unlawful delegation of legislative authority. OAG 76-337 .

Even without an open record statute it would be constitutionally unacceptable to allow an administrative officer the prerogative of requiring a subordinate to make a choice between admitting private charges or facing a public hearing. OAG 78-133 .

The compensation limits set forth in § 246 of the Constitution are based on the purchasing power of the 1949 dollar and are therefore adjustable to its fluctuations, but a court could set aside such salaries if the evidence in a taxpayer’s suit would show that the time spent by the magistrates on county business is such that payment of such salaries would be arbitrary under § 2 of the Constitution. OAG 78-426 .

In defining the term “arbitrary,” the court has written in effect that the term would mean that the governmental action was not right and equitable under the circumstances, and not directed by sound reason and in the exercise of good judgment and conscience. OAG 79-82 .

Where the population of the magisterial districts is substantially unequal, a county administrative code could not require an equal amount of road work be done in each district, unless supported by other relevant factors, such as traffic volume, importance to the county of given road segments in each district, and road mileage, since such a result could be considered arbitrary without such supporting data. OAG 79-179 .

A county road repair program must be based upon several factors, which include: condition of roads, mileage of county roads in all districts, number of people served in all the districts, etc.; to merely divide the money equally, without any other equitable considerations, would be arbitrary. OAG 79-238 .

Because KRS 186.230(9) does not provide any essential protection to the rights of creditors, but does severely restrict the individual’s use and disposition of his property, it is an unconstitutional infringement upon the right to acquire and protect property and to be free from any unreasonable restraint upon the use of property in violation of this section and Const., § 1. OAG 79-445 .

KRS 186.230(9) is unconstitutional because the classification set out therein is arbitrary and is consequently in violation of this section and Const., § 59. OAG 79-445 .

Where fiscal court does not approve nomination of district hospital board member by county judge/executive, the present member can continue in that post under subsection (1) of KRS 216.325 until another successor is nominated and approved; however, the fiscal court cannot under this section arbitrarily fail to approve a successor so as to allow the incumbent member to hold office for a substantial length of time since KRS 216.323 imposes upon them a strongly implied duty to reach agreement. OAG 81-29 .

While KRS 67.063 (repealed) mentions no appeal to the court system, any citizen aggrieved by the order of reapportionment of the fiscal court could seek a review of the order in circuit court under this section on the question of whether or not the reapportionment was constitutionally effected. OAG 81-119 .

Subsection (9) of KRS 186.230 , which prohibits the alienability or transfer of a motor vehicle while a lien is still on it, is clearly unconstitutional since it promotes no perceptible and clear legitimate public interest and has no reasonable relation to such police power objects as public safety, health, peace, good order or morals; thus, the statutory restraint is unreasonable and arbitrary under this section. OAG 81-160 .

It is not lawful to pay group insurance for part of the county employees and not all of them since, for purposes of hospitalization insurance, all county employees would be in the same class and discrimination cannot be made against persons in the same class. OAG 81-188 .

A county fiscal court may not adopt rules and regulations which would close the county jail to pretrial investigation as to a bail determination and to the trial commissioner for bail, between the hours of 11 p.m. and 7 a.m., with the effect that an individual arrested at night would be housed for at least eight (8) hours before he could make bail, since the bail bond provisions of RCr 4.00 to 4.58 and KRS 431.510 to 431.550 reflects the legislative policy that if pretrial release is to be effected at all, it should be done quickly to preserve the presumption of innocence, and since the practical effect of excluding bail officers for the stated period would be arbitrary denial of bail, which would be prohibited by the proscription of this section against arbitrary action. OAG 81-299 .

Although a fifth-class city may levy a license tax based on the licensee’s gross income pursuant to KRS 92.280 , the percentage rate of taxation would have to remain fixed because a license tax rate which was graduated according to the amount of gross sales made would be arbitrary and unequal under this section and Const., § 171, and thus unconstitutional. OAG 82-33 .

A real estate commission regulation which requires a realtor to advertise property in her broker’s name would, when applied to a realtor acting as an executrix, be an unconstitutional restraint on the alienation of property under this section, Const., § 1 and the Fourteenth Amendment to the United States Constitution, since it forces the heirs to list the testamentary real property with a particular broker contrary to their desire to sell it privately. OAG 82-36 .

In view of the modern conditions reflected in population improvement, concentration in urban areas and the husband and wife as teachers, a school board regulation requiring certified employees to be residents of its district would be arbitrary and violate this section. OAG 82-59 .

A department of human resources (now Cabinet for Human Resources) policy which allowed the department to withhold 25 percent of a county’s yearly allocation of appropriations if the county chose to retain its county health departments rather than join a district health department violated the express provisions of subsection (2) of KRS 212.120 and was arbitrary under this section. OAG 82-78 .

The expenditure of county money on a cemetery maintained exclusively for the burial of persons of a particular religious faith would be arbitrary under this section. OAG 82-101 .

There was no improper discrimination between classified employees and certified employees of a school district based upon the ability of teachers to participate in an extended school day plan (snowbank) days and the inability of classified employees to do the same, as there were two (2) distinct classifications of school employees. It is only the arbitrary classification and treatment of individuals that runs afoul of this section and the U.S. Const., amend. 14. OAG 82-132 .

A friend or even a fiance of a prisoner has no constitutional right to visit the prisoner; however, in refusing a prisoner’s fiance visitation privileges, which are inextricably intertwined with the prisoner’s desire for such visitation, the prison authority must act reasonably so as not to violate the spirit of this section. OAG 82-197 .

In view of the increased load effected by the garbage of areas outside a county, and the attendant implications for the public health of citizens of such county by way of increasing health problems or hazards, an ordinance prohibiting citizens from other counties from dumping their trash and garbage into county trash containers was a valid, not arbitrary, exercise of the fiscal court’s police powers, particularly as the outside citizens paid nothing toward the maintenance of the garbage, while the citizens of the county directly supported the garbage operation through the county’s general fund. OAG 82-236 .

The fiscal court has a positive responsibility to fund properly an existing county police force, and cannot arbitrarily withhold proper funding. Once the county judge/executive establishes a reasonable county police force, he may obtain court relief to enforce the proper funding of such police force. OAG 82-347 .

A fiscal court cannot indirectly, by lowering the salary of the deputy to an unconscionable and unconstitutional level, bring about the departure of a particular deputy from office. OAG 82-515 .

Technically, the fiscal court may lower the salary of a deputy county judge/executive; however, the lowering of the deputy’s salary would have to be effected under the yardstick of a “reasonable salary” for services actually performed. Any salary lowering not based upon the “reasonable salary” concept would on its face appar to be arbitrary and would be unconstitutional under this section, which prohibits arbitrary action. OAG 82-515 .

Where the fiscal court provides for four (4) county officials’ reimbursement for litigational expenses, such are legal if they meet the guidelines for reimbursement of expenses; however, where the fiscal court, as relates to the litigation involving four (4) county officials, decides to not reimburse a fifth county official involved in the same litigation, such action, where the case of the fifth defendant meets the guidelines, might be construed by the courts to be arbitrary under this section. Thus, where five (5) county officials were involved, and they are qualified under the guidelines for reimbursement of expenses, the reimbursement should be effected on a fair and equitable basis, if at all, for five (5) defendants. OAG 82-596 .

In reducing the compensation of county employees, including nonconstitutional officers, a fiscal court must act with reason and with a uniformly applied policy. They cannot act arbitrarily; arbitrary classification and treatment of such employees would run afoul of this section and the Fourteenth Amendment to the U.S. Constitution. In other words, where some salaries of county employees are cut and some are not, there must be a reasonable classification established for those who are cut. OAG 83-169 .

Where the members of fiscal court fail or refuse to enter an order ordering the levy of a library tax pursuant to the filing of a petition, such inaction is in violation of KRS 173.720 and is arbitrary; this section would also be violated, since it expressly prohibits the exercise of arbitrary power. If the fiscal court does not enter the order, as required, it may be subjected to a citizens’ suit in the local circuit court for mandamus or mandatory injunction to compel the fiscal court to do its duty. OAG 83-310 .

There is no distinction between a business license tax measured by gross receipts and one measured by net profits since the tax is levied on the privilege of doing business and that privilege does not require a greater rate for greater profits, but is worth the same for all businesses; consequently, a graduated city business license tax based on net profits would violate Ky. Const., § 171 and this section. OAG 83-331 .

A city had no authority to enact an ordinance absolutely prohibiting all businesses from playing amplified music on the alleged basis of an existing nuisance since there was no showing that the absolute prohibition had a reasonable relation to the public safety, welfare or convenience of the city’s citizenry. Such ordinance was arbitrary and oppressive in its absoluteness and absence of any standards and thus was illegal and unconstitutional under this section and the First and Fourteenth Amendments to the U.S. Constitution. OAG 84-39 .

If it appeared that overtime work by sheriff’s deputy was reasonably necessary to carry out the sheriff’s duties, then the fiscal court must give the sheriff credit in the yearly settlement for the amount of overtime pay the sheriff effected from the funds of his office; the overtime should normally be paid out of the salary source, which was the county treasury for the particular deputy sheriff. If the fiscal court refuses to credit the sheriff’s payment of overtime, assuming that the overtime work was reasonably necessary, the fiscal court would be acting arbitrarily, contrary to this section. OAG 84-183 .

Where a county entered into a contract for the furnishing of ambulance service, pursuant to KRS 65.710 , the ambulance service involved a purpose common to the entire county; thus, unless such contract embraced all citizens within the county, including those who lived in cities within the county, this section and § 171 of the Constitution would be violated. OAG 84-323 .

Neither KRS 186.193 nor KRS 186.232 support an arbitrary classification in violation of this section and § 59 of the Constitution; these statutes apply equally to all vehicles and trailers which are to be operated on the highways of this state. OAG 84-339 .

Where the state has occupied the field of prohibitory legislation on a particular subject, local government lacks authority to legislate with respect thereto; thus, a county may not enact an ordinance requiring all mopeds operated within the county to display a sticker showing that the vehicle may only be operated by a person having a valid motor vehicle operator’s license. OAG 84-380 .

The allowance by the fiscal court of an amendment to an existing cable television franchise, which would require a $20.00 security deposit from renters, but not from owners, was a reasonable classification and did not violate this section; when considering the actual experience of the company with the renters, and the fact that the company suffered a monetary loss in extending service to renters without requiring a security deposit for the converter boxes, such requirement was reasonable and not discriminatory, it being applied to all within that class. OAG 85-8 .

An amendment to KRS 311.571 or any other provision in KRS Chapter 311 requiring a physician to treat any individual covered by a certain type of insurance is not rationally related to the legitimate state end of that chapter which is to protect the public from improperly trained or educated physicians. However, such a requirement contained in another portion of the KRS may withstand constitutional scrutiny if a court could be convinced that the requirement is rationally related to some legitimate state end. OAG 93-28 .

Despite the 1990 amendment, the Unfair Cigarette Sales Act is a minimum markup law and is unconstitutional under this section because the “cost of doing cigarette business” under KRS 365.270 is still determined with reference to the seller’s total operational expense. OAG 93-74 .

The General Assembly may permit referenda on local school curriculum; however, in doing so, the General Assembly must not violate equal protection provisions and special and local legislation provisions of the Kentucky Constitution. OAG 00-3 .

A school board may not require principals to be residents of the school district. OAG 01-7 .

Shock probation for persons convicted of a DUI vehicular homicide does not constitute an exercise of absolute and arbitrary power in violation of the Kentucky Constitution, although it is questionable as public policy. OAG 11-005 , 2011 Ky. AG LEXIS 215 (2011).

Research References and Practice Aids

Kentucky Bench & Bar.

Dyche, The History and Meaning of Section 2 of the Kentucky Constitution, Volume 55, No. 4, Fall 1991 Ky. Bench & B. 17.

Durant, Procedural Due Process Past Due, Vol. 61, No. 1, Winter 1997, Ky. Bench & Bar 6.

Kentucky Law Journal.

Comments, The Employee Defense Act: Wearing Down Sovereign Immunity, 66 Ky. L.J. 150 (1977-78).

Kentucky Law Survey: Savage, Insurance, 66 Ky. L.J. 631 (1977-1978).

Ziegler, A Primer on Administrative Rules and Rule-Making in Kentucky, 67 Ky. L.J. 103 (1978-79).

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Notes, Court-Annexed Arbitration: Kentucky’s Viable Alternative to Litigation, 77 Ky. L.J. 881 (1988-89).

Reynolds, Education Finance Reform Litigation and Separation of Powers: Kentucky Makes Its Contribution, 80 Ky. L.J. 309 (1990-91).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Lewis, Commonwealth v. Wasson: Invalidating Kentucky’s Sodomy Statute, 81 Ky. L.J. 423 (1992-93).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Roach, Rule of Men, 81 Ky. L.J. 483 (1992-93).

Fine, Beware That False First Step, 82 Ky. L.J. 731 (1993-94).

Northern Kentucky Law Review.

Ziegler, Legitimizing the Administrative State: The Judicial Development of the Nondelegation Doctrine in Kentucky, 4 N. Ky. L. Rev. 87 (1977).

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

Notes, Insurance — Medical Malpractice — Uncoupling the Freight Train: The Kentucky Medical Malpractice Act — McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ), 5 N. Ky. L. Rev. 123 (1978).

Comments, Reda Pump, a Division of TRW, Inc. v. Finck: An Update on Kentucky Product Liability Law, 14 N. Ky. L. Rev. 395 (1988).

Dyche, Section 2 of the Kentucky Constitution — Where Did It Come From and What Does it Mean?, 18 N. Ky. L. Rev. 503 (1991).

Kazee, The Sherman Act and the Arbitrary Power Section of the Kentucky Constitution As Applied to Kentucky Fair Trade Laws, 20 N. Ky. L. Rev. 297 (1993).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Edmondson and Rylee, Termination of the Tenured Teacher in Kentucky: Does K.R.S. 161.790

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

Stinnett, A Breath of Fresh Air: A Smoking Ban’s Legal Invasion of Property Rights in Lexington Fayette County Food & Beverage Ass’n v. Lexington-Fayette Urban County Gov’t.,32 N. Ky. L. Rev. 239 (2005).

§ 3. Men are equal — No exclusive grant except for public services — Property not to be exempted from taxation — Grants revocable.

All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; but no property shall be exempt from taxation except as provided in this Constitution, and every grant of a franchise, privilege or exemption, shall remain subject to revocation, alteration or amendment.

NOTES TO DECISIONS

Analysis

1.Construction.

This section should not be too strictly interpreted. Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

This section and Const., §§ 171, 172, 174 and 175 are self-executing; they require that all property, unless exempted, be assessed for taxation and taxed and no discretion is left to the General Assembly. Reeves v. Island Creek Fuel & Transp. Co., 313 Ky. 400 , 230 S.W.2d 924, 1950 Ky. LEXIS 859 (Ky.), cert. denied, 340 U.S. 853, 71 S. Ct. 82, 95 L. Ed. 625, 1950 U.S. LEXIS 1535 (U.S. 1950).

This section reserves the power in the state to revoke, alter, or amend, but this power will not be exercised to destroy or substantially impair rights vested under the state’s grant. Banner Transfer Co. v. Ockerman, 354 S.W.2d 514, 1961 Ky. LEXIS 11 ( Ky. 1961 ).

2.Class Legislation.

The objection that a statute favoring a certain class is discriminatory cannot be raised by a member of that class, since he has not been discriminated against, nor denied any privilege. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137 , 107 S.W. 710, 32 Ky. L. Rptr. 916 , 1908 Ky. LEXIS 38 ( Ky. 1908 ).

This section does not deny the legislature the right to select and classify persons or occupations or the right to enact reasonable laws for the government of each class that it deals with. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137 , 107 S.W. 710, 32 Ky. L. Rptr. 916 , 1908 Ky. LEXIS 38 ( Ky. 1908 ).

A statute which, when construed according to the canons of statutory construction, confers the right on one class of citizens to do an act made a criminal offense when done by any other class, conflicts with United States Const., Amend. 14. Commonwealth v. International Harvester Co., 131 Ky. 551 , 115 S.W. 703, 1909 Ky. LEXIS 40 ( Ky. 1909 ), overruled, Gay v. Brent, 166 Ky. 833 , 179 S.W. 1051, 1915 Ky. LEXIS 783 ( Ky. 1915 ).

Act that provided for a bipartisan hospital board, did not violate this section in that it required the board to be appointed from the democratic and republican parties excluding members of other political parties. Render v. Louisville, 142 Ky. 409 , 134 S.W. 458, 1911 Ky. LEXIS 200 ( Ky. 1911 ).

Law creating exception to betting laws by providing for pari-mutuel betting on horses amounted to legislative classification which was reasonable and so not violative of this section. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

Educational qualifications law which provided that board members in office at time law went into effect might be reelected regardless of such qualifications was constitutional as setting up reasonable and natural class. Commonwealth v. Griffen, 268 Ky. 830 , 105 S.W.2d 1063, 1937 Ky. LEXIS 536 ( Ky. 1937 ).

KRS 186.050(4), farmer’s truck license law would not be read as denying license to one who, although engaged in another business besides farming, proposed to use his truck as farmer’s truck, since to do so would raise grave issue as to constitutionality under this section. Fischer v. Grieb, 272 Ky. 166 , 113 S.W.2d 1139, 1938 Ky. LEXIS 93 ( Ky. 1938 ).

KRS 243.220 , in classifying drug stores, hotels and private clubs as proper dispensers of liquor, and giving them privileges which are denied to other licensees, uses a rational basis for classification, and does not violate this section. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

An act requiring that certain appliances be sold only by registered pharmacists was based on a proper classification, where it was reasonable to assume that pharmacists were especially qualified to determine whether appliances complied with specifications required by act. Markendorf v. Friedman, 280 Ky. 484 , 133 S.W.2d 516, 1939 Ky. LEXIS 130 ( Ky. 1939 ).

This section does not forbid a classification based on reasonable and natural distinctions, and an act making a classification will only be voided where the classification is manifestly arbitrary and unreasonable so as to exclude one or more of a class without reasonable basis in fact. Markendorf v. Friedman, 280 Ky. 484 , 133 S.W.2d 516, 1939 Ky. LEXIS 130 ( Ky. 1939 ).

Law that provided for aid to the needy blind was not in contravention of this section and was valid since this section does not apply where payments are made in discharge of an inherent duty. Aid to the needy blind is a payment by the state in discharge of a duty to a recipient who is entitled to it as of right, having established his eligibility under the act. Bowman v. Frost, 289 Ky. 826 , 158 S.W.2d 945, 1942 Ky. LEXIS 557 ( Ky. 1942 ).

Statutes providing state aid for dependent children did not violate this section. The fact that aid was provided only for children living with certain relatives did not constitute an unreasonable classification. Meredith v. Ray, 292 Ky. 326 , 166 S.W.2d 437, 1942 Ky. LEXIS 81 ( Ky. 1942 ).

KRS 231.020 does not violate this section, although it regulates only places of entertainment located outside of cities, since there is a reasonable basis for such classification arising from the fact that cities have police protection. Ratliff v. Hill, 293 Ky. 36 , 168 S.W.2d 336, 1943 Ky. LEXIS 556 ( Ky. 1943 ).

This section prevents class legislation. W. W. Mac Co. v. Teague, 297 Ky. 475 , 180 S.W.2d 387, 1944 Ky. LEXIS 752 ( Ky. 1944 ).

Car rental agencies constituted proper class for regulation by law providing for insurance covering operation of rented cars and law was thus not violative of this section. Reeves v. Wright & Taylor, 310 Ky. 470 , 220 S.W.2d 1007, 1949 Ky. LEXIS 950 ( Ky. 1949 ).

Stipulation of KRS 132.380 , exempting incumbent county tax commissioners from necessity of taking further examination in order to succeed themselves, was not discriminatory to persons seeking nomination and election to such office, since classification of incumbents was germane to purpose of such law and therefore was not violative of this section or Const., § 59. Department of Revenue ex rel. Allphin v. Turner, 260 S.W.2d 658, 1953 Ky. LEXIS 983 ( Ky. 1953 ).

The provision in the uniform support of dependents act does not violate this section, in that it grants the privilege of free legal representation to a dependent person when the person liable to support is in another state, but denies such privilege when the person liable to support is within the state, as this constitutes a reasonable classification. Duncan v. Smith, 262 S.W.2d 373, 1953 Ky. LEXIS 1090 ( Ky. 1953 ).

Former law regarding qualification of private schools for education of exceptional children had a valid public purpose within the scope and spirit of this section, Const., §§ 171 and 177. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

Under KRS 157.305 (repealed), exceptional children, for whose education the common schools are not adequate, are proper subjects of classification. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

Law that established two (2) general classes of voters who were eligible to vote by absentee ballot, federal employees and full-time students, did not violate this section. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

An ordinance that authorizes all vehicles engaged in a funeral procession to proceed through or against red traffic lights is not class legislation which is forbidden by this section. Newman v. Lee, 471 S.W.2d 293, 1971 Ky. LEXIS 229 ( Ky. 1971 ).

Without a showing of compelling governmental interest, the policy of a school board in showing preference for the employment of natives of the county constituted an inherently suspect classification, unconstitutionally discriminatory and preferential in violation of this section and Const., §§ 1 and 2. Johnson v. Dixon, 501 S.W.2d 256, 1973 Ky. LEXIS 128 ( Ky. 1973 ).

3.Consideration.

“Consideration,” as that term is used in this section, does not mean “consideration” in a contractual sense, but means “because of” or “on account of” services rendered. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

4.Corporations.

The fact that the statute excepts certain classes of corporations from the operation of the section imposing a personal liability upon stockholders does not render it unconstitutional, as the action of the legislature in making such a classification will not be disturbed unless manifestly arbitrary and unjust. Williams v. Nall, 108 Ky. 21 , 55 S.W. 706, 21 Ky. L. Rptr. 1526 , 1900 Ky. LEXIS 6 ( Ky. 1900 ).

A foreign telegraph corporation engaged in interstate commerce is not entitled to construct its poles and wires on the streets of a city without payment of compensation. Postal Tel. Cable Co. v. Newport, 25 Ky. 635 , 76 S.W. 159, 25 Ky. L. Rptr. 635 , 1903 Ky. LEXIS 295 (Ky. Ct. App. 1903).

A Kentucky statute prohibiting persons and corporations from maintaining schools for both white persons and Negroes is separable, and even if an unconstitutional restraint as to individuals, it is not unconstitutional as to corporations, it being within the power of the state to determine the power conferred upon its corporations. Berea College v. Kentucky, 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81, 1908 U.S. LEXIS 1526 (U.S. 1908).

5.Emoluments or Privileges.

Law which related to the pooling of agricultural products for the purpose of sale did not grant any exclusive, separate public emoluments or privileges, but simply selected a class and provided what it might do, without withholding the privilege from others. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137 , 107 S.W. 710, 32 Ky. L. Rptr. 916 , 1908 Ky. LEXIS 38 ( Ky. 1908 ).

KRS 244.390 (now repealed), relating to regulation of liquor sales and minimum mark-up resale prices thereon, was not for sole benefit of dealers and did not grant exclusive emoluments or privileges. Reeves v. Simons, 289 Ky. 793 , 160 S.W.2d 149, 1942 Ky. LEXIS 637 ( Ky. 1942 ).

Since property and bonds of municipal housing commission were properly exempt from taxation under Const., §§ 170 and 171, such exemption did not grant exclusive, separate public emoluments or privileges under this section. Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ).

Statutory provision of subsection (2) of KRS 321.210 (now repealed), authorizing issuance of veterinary license, without examination, to persons who had practiced for one year prior to effective date of original licensing law enacted in 1916, which provision was contained in a 1948 act revising the veterinary law, was not unconstitutional as being special or class legislation or as granting special privileges or emoluments. Doller v. Reid, 308 Ky. 348 , 214 S.W.2d 584, 1948 Ky. LEXIS 939 ( Ky. 1948 ).

6.— Emoluments.

This section did not apply to payments made to stimulate prisoners to render better service and obedience during confinement since such payments were made in exercise of police power relative to reformation of prisoners. State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ).

Even if one who assisted police officer were entitled to compensation for such assistance, this section would not cover personal injuries sustained while performing such services. Caudill v. Pinsion, 233 Ky. 12 , 24 S.W.2d 938, 1930 Ky. LEXIS 498 ( Ky. 1930 ).

Where city ordinance and contract provided that railroad company be reimbursed by the city to the amount of that portion of the cost of sewers and sewer disposal plant assessed on railroad company’s land, it was invalid under this section on ground of discrimination. Corbin v. Louisville & N. R. Co., 233 Ky. 709 , 26 S.W.2d 539, 1930 Ky. LEXIS 630 ( Ky. 1930 ).

Emolument means a profit from office, employment or labor, compensation, perquisites, fees or salary. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

Law that provided for $5,000 annual pensions for judges of the Court of Appeals, violated this section and Const., § 246, because the pensions amounted to additional compensation, which exceeded the constitutional salary limit. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

This section does not prohibit paying compensation to public officer during periods of absence from work. Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

Compensation from public funds to state employee on leave from regular duties for purposes of attending school to better qualify herself to perform her duties is prohibited by this section. Barnes v. Adams, 305 S.W.2d 754, 1957 Ky. LEXIS 325 ( Ky. 1957 ).

Former law providing that legislative body of second-class cities by proper legislation could provide for pension fund for police judges and ordinance providing for such pension fund were not unconstitutional under this section since the services performed by the judges were public services and this section sets no limitation on the salaries that may be paid to a public officer for his services but merely provides that no emoluments may be granted except for public service. Maybury v. Coyne, 312 S.W.2d 455, 1958 Ky. LEXIS 225 ( Ky. 1958 ).

Statute authorizing retirement pensions to police judges and ordinance of city setting up a pension fund pursuant to such statute are constitutional. Maybury v. Coyne, 312 S.W.2d 455, 1958 Ky. LEXIS 225 ( Ky. 1958 ).

Subsection (3) of KRS 21.365 (now repealed), which attempted to provide a pension for judges who were in service during a period when the retirement program was not in effect, was unconstitutional as a violation of this section. Littleton v. Reed, 456 S.W.2d 695, 1970 Ky. LEXIS 232 ( Ky. 1970 ).

Where a county fiscal court could not justify paying at least $9,600 to each of its three (3) justices of the peace based upon the present absence of public services performed by them, the solution would be for the magistrates to request the Kentucky legislature to either increase the duties of those not serving on a fiscal court, or, in the alternative for the fiscal court, to be permitted to establish a salary below $9,600 in line with services actually performed. Roland v. Jefferson County Fiscal Court, 599 S.W.2d 469, 1980 Ky. App. LEXIS 320 (Ky. Ct. App. 1980).

7.— Privileges.

New corporation formed under 1893 consolidation law at time when such law was in effect, could claim no right to exclusive privilege to conduct business conferred by law enacted prior to adoption of this section. Shaw v. Covington, 194 U.S. 593, 24 S. Ct. 754, 48 L. Ed. 1131, 1904 U.S. LEXIS 796 (U.S. 1904).

If a statute grants exclusive privileges, it violates not only this section, but United States Const., Amend. 14. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137 , 107 S.W. 710, 32 Ky. L. Rptr. 916 , 1908 Ky. LEXIS 38 ( Ky. 1908 ).

A statute providing that the use of certain containers without the written consent of the person whose brand is on them and recorded, shall be presumptive evidence of the unlawful use of such containers, is not violative of this section forbidding a grant of separate privileges. Commonwealth v. Goldburg, 167 Ky. 96 , 180 S.W. 68, 1915 Ky. LEXIS 818 ( Ky. 1915 ).

Law violated this section in providing that certain number of students per county by population would be given free tuition and rooming at state university, since such students thereby received exclusive privileges. Barker v. Crum, 177 Ky. 637 , 198 S.W. 211, 1917 Ky. LEXIS 665 ( Ky. 1917 ) ( Ky. 1917 ).

It was not necessary that the privileges of the white and colored races be identical, it was sufficient that they were equal therefor and law that provided for a visitor for colored schools only was not violation of this section, the effect of the act being to provide an officer who took place of trustee. Daviess County Board of Education v. Johnson, 179 Ky. 34 , 200 S.W. 313, 1918 Ky. LEXIS 171 ( Ky. 1918 ).

Law which regulated automobile transportation companies, which specifically excluded cars having seating capacity of five (5) or less from its provisions except as to payment of fees, did not violate this section. Reo Bus Lines Co. v. Southern Bus Line Co., 209 Ky. 40 , 272 S.W. 18, 1925 Ky. LEXIS 421 ( Ky. 1925 ). See Harrison v. Big Four Bus Lines, 217 Ky. 119 , 288 S.W. 1049, 1926 Ky. LEXIS 26 ( Ky. 1926 ).

A public privilege is a privilege to participate in the formation, administration and conduct of government. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

Legislative resolution appropriating funds to reimburse former state treasurer for money expended by him while in office did not violate this section by granting special privilege to him. Department of Finance v. Dishman, 298 Ky. 545 , 183 S.W.2d 540, 1944 Ky. LEXIS 948 ( Ky. 1944 ).

The specific distinction between this section and Const., § 171 is that the provisions of this section forbid a special privilege, while the provisions of Const., § 171 require a public purpose. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

Law naming American Legion as nominating agency with respect to members of disabled veterans’ board, was not unconstitutional grant of privilege, since such agency’s members did not receive any special benefit or privilege, and since objective of legislation was to care for interests of disabled veterans or their dependents. Elrod v. Willis, 305 Ky. 225 , 203 S.W.2d 18, 1947 Ky. LEXIS 778 ( Ky. 1947 ).

KRS 96.172 relating to municipal utility plants in third-class cities, imposing restrictions on appointment of board members and employment of superintendent and employees, with view to preventing political interference and nepotism, did not grant exclusive privileges in violation of this section. Settle v. Jones, 306 Ky. 9 , 206 S.W.2d 59, 1947 Ky. LEXIS 946 ( Ky. 1947 ).

A metropolitan sewer district, created to take over and operate the sewer system of a city of the first class, was bound by the terms of an existing sewer-service contract between the city and a contiguous area, and adherence to the contract rates was not the granting of an exclusive privilege within the meaning of this section. Louisville & Jefferson County Metropolitan Sewer Dist. v. Strathmoor Village, 307 Ky. 343 , 211 S.W.2d 127, 1948 Ky. LEXIS 739 ( Ky. 1948 ).

Act 1948, ch. 118, requiring city of first class, on annexation of sanitation district, to assume revenue bond obligations of district to be payable out of general funds of city, was unconstitutional in that, in relieving the property owners of the district of the obligation of paying for their own sewer system, it was the granting of an exclusive privilege in contravention of this section. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Law providing that no candidate defeated for office in primary could have his name printed on ballot for general election for same office except candidates for judge of Court of Appeals or circuit court, did not confer special rights and privileges on candidates for such judgeships in violation of this section. Rosenberg v. Queenan, 261 S.W.2d 617, 1953 Ky. LEXIS 1025 ( Ky. 1953 ).

Personalized license plates containing the call letters of an amateur radio operator, as provided in KRS 186.177 , or containing the office and district of a member of the General Assembly, as provided in KRS 186.178 , are not unconstitutional symbols of privilege or special favor but are merely badges of identification. Maynard v. Commonwealth, 538 S.W.2d 38, 1976 Ky. LEXIS 60 ( Ky. 1976 ).

The provision of former law limiting the number of members insured in the patient compensation fund did not confer a special privilege in violation of this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

Although this section and Section 179 of the Kentucky Constitution could prohibit an outright gift or lending of credit, these sections do not prevent all public incentives when offered in furtherance of a valid public service, such as economic development efforts. Dannheiser v. City of Henderson, 4 S.W.3d 542, 1999 Ky. LEXIS 114 ( Ky. 1999 ).

The sale of municipal property to private companies was for a proper public purpose where the city’s sole purpose was to develop a corporate park so as to foster economic development by attempting to retain existing industry as well as to attract new industry to its local community; further, in order to show such public purpose, the city was not required to prove by clear and convincing evidence that unemployment was a widespread problem in the vicinity and, instead, only needed to prove that the development had a reasonable or sufficient relationship to the purpose of economic growth. Dannheiser v. City of Henderson, 4 S.W.3d 542, 1999 Ky. LEXIS 114 ( Ky. 1999 ).

8.Equal Protection.

Law providing that taxes raised from property owned by white persons could not be applied to use of Negro schools was unconstitutional as in violation of equal protection clause of Constitution. Trustees of Graded Free Colored Common Schools v. Trustees of Graded Free White Common Schools, 180 Ky. 574 , 203 S.W. 520, 1918 Ky. LEXIS 114 ( Ky. 1918 ).

Reciprocity clause was not intended to permit nonresidents to do business regularly in this state without complying with regulations and paying taxes observed and paid by residents, since otherwise such clause would violate equality provision of this section. Reeves v. Deisenroth, 288 Ky. 724 , 157 S.W.2d 331, 1941 Ky. LEXIS 197 ( Ky. 1941 ).

That part of KRS 277.330 which imposed duty upon railroad company of proving itself free from negligence in killing or injury of cattle by its engine or cars, was invalid as being contrary to purpose of this section with respect to equal protection. Louisville & N. R. Co. v. Faulkner, 307 S.W.2d 196, 1957 Ky. LEXIS 83 ( Ky. 1957 ) (decision prior to 1966 amendment of KRS 277.330 ).

Both local acts and special laws are prohibited by Const., § 59 as well as by guarantees of equal protection of United States Const., Amend. 14 and this section. Louisville v. Klusmeyer, 324 S.W.2d 831, 1959 Ky. LEXIS 396 ( Ky. 1959 ).

Where lawyer was convicted on three (3) counts of failure to file federal income tax returns, disciplinary action against him under SCR 3.130 did not deny him equal protection of the laws. Kentucky Bar Asso. v. Kramer, 555 S.W.2d 245, 1977 Ky. LEXIS 498 ( Ky. 1977 ) (decision prior to 1978 amendment of SCR 3.130).

The requirements of former law regarding patients’ compensation fund that all physicians and hospitals be members of and contribute to the patient compensation fund was not an arbitrary classification. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The fact that statutes of limitations do not apply to the initiation of disciplinary proceedings against attorneys does not deprive attorneys of equal protection. Kentucky Bar Asso. v. Signer, 558 S.W.2d 582, 1977 Ky. LEXIS 535 ( Ky. 1977 ).

The agriculture exclusion contained in the Workers’ Compensation Act is not violative of the equal protection clauses of the state and federal Constitutions because of discriminatory classification of workers. Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

Where the profits or losses of a hospital did not relate to alleged sex discrimination in composition of the board of directors and could not be considered an indispensable element in the financial success of a government agency, where property was conveyed by state to hospital with right of reverter should the property cease to be used as a medical facility but such reverter was merely part of business transaction in which hospital would be recompensed for the property, where benefits derived by state university from location of hospital were merely incidental to contract between state and hospital, and where city’s issuance of bonds for expansion of hospital was collateralized by transfer of title to city only during the period of the loan so that the city had no daily role in the business affairs of the hospital, there was no showing of state action and requirement of hospital’s bylaws that the board of directors consist of 12 women did not violate equal protection. Pattie A. Clay Infirmary Asso. v. First Presbyterian Church, 605 S.W.2d 52, 1980 Ky. App. LEXIS 368 (Ky. Ct. App. 1980).

Section 59 of the Constitution is more than simply another way of restating the generalized language of the equal protection clause of the Fourteenth Amendment to the United States Constitution; this section and Const., §§ 1 and 2, which provide that the General Assembly is denied arbitrary power and shall treat all persons equally, suffice to embrace the equal protection clause to the Fourteenth Amendment. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

KRS 189A.070 , governing license revocation for operating a motor vehicle while under the influence of alcohol, does not fail the “rational basis test” of equal protection, it does not constitute special legislation in contravention of Const., § 59, it does not violate this section, and it does not contravene the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution and Const., § 17. Praete v. Commonwealth, 722 S.W.2d 602, 1987 Ky. App. LEXIS 416 (Ky. Ct. App. 1987).

Although the striking of one (1) black juror for a racial reason is an equal protection violation, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown, that does not mean the striking of one (1) black juror can constitute a prima facie case if the racial reason is not apparent from statistical inference or other reasons; the defendant must show he is a member of a racial group, that the prosecutor used peremptory challenges to exclude members of that group, and that these facts and other circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

A female defendant is not denied equal protection under the law when the Commonwealth peremptorily challenges female jurors, as the prohibitions concerning the utilization of peremptory challenges, as described in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (1986) do not extend beyond racial discrimination. Hannan v. Commonwealth, 774 S.W.2d 462, 1989 Ky. App. LEXIS 92 (Ky. Ct. App. 1989).

Where metropolitan sewer district utilized a rate structure based upon the equivalent service unit approach, this was a reasonable and rational classification and was uniform for all residential property. Long Run Baptist Asso. v. Louisville & Jefferson County Metropolitan Sewer Dist., 775 S.W.2d 520, 1989 Ky. App. LEXIS 106 (Ky. Ct. App. 1989).

The ordinary duties of a school principal differ greatly from those of a school teacher, as administrative personnel have either fiscal management duties and educational supervisory duties, or both, with responsibilities which are quite different from those of classroom teachers; the role of an administrator in carrying out policy and in formulating overall policy is also quite different from that of a teacher, and it is certainly not beyond reason that the legislature would deem it advisable not to give one whose supervisory and policy role is so different, the same kind of job protection given to a classroom teacher. Hooks v. Smith, 781 S.W.2d 522, 1989 Ky. App. LEXIS 151 (Ky. Ct. App. 1989).

The proper test to be applied under the equal protection clause of the Kentucky Constitution is whether there is a rational basis for the different treatment of school administrators from that of school teachers. Hooks v. Smith, 781 S.W.2d 522, 1989 Ky. App. LEXIS 151 (Ky. Ct. App. 1989).

Strip mining regulation which denies a due process hearing to an aggrieved party based solely on his financial inability to pay the penalties which he seeks to appeal is unconstitutional, in violation of the equal protection clauses of both the United States and Kentucky Constitutions. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

KRS 510.100 , which criminalized deviate sexual intercourse between consenting adults of the same sex, even if the act was committed in the privacy of a home, violated the Kentucky Constitution as: (1) An invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment. Commonwealth v. Wasson, 842 S.W.2d 487, 1992 Ky. LEXIS 140 ( Ky. 1992 ).

No denial of equal protection of the law or discrimination occurred by virtue of plaintiff’s dissolution of marriage case being assigned to an elected District Judge sitting as an approved special Circuit Judge because such a submission could have resulted regardless of whether the cases were assigned alphabetically or in any other manner. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Ordinance which restricted the use of free standing signs within city limits by reducing their maximum allowable size did not violate plaintiffs’ right to equal protection under Const., §§ 1 or 3 since the plaintiffs did not allege that they belonged to a suspect class and the ordinance did not burden either plaintiffs’ fundamental right of free speech or fundamental right to just compensation for a taking of property. Wilson v. City of Louisville, 957 F. Supp. 948, 1997 U.S. Dist. LEXIS 2897 (W.D. Ky. 1997 ).

Where in amending ordinance which further restricted the use of small freestanding signs within city limits by reducing their maximum allowable size, the planning commission based its decision on two (2) separate public hearings in which the opponents and proponents of the amendments testified and the commission adopted findings that held that the proscribed portable signs were detrimental to both the aesthetics and safety of the city, the ordinance was related to the commissions goals of aesthetic improvement and safety and did not violate Const., §§ 1 or 3. Wilson v. City of Louisville, 957 F. Supp. 948, 1997 U.S. Dist. LEXIS 2897 (W.D. Ky. 1997 ).

The “cost of production” includes the cost of raw materials as well as the cost of processing; thus, a vegetable oil refining and distribution company was required to include the cost of the crude oil itself in its cost of production for the purposes of the revenue statute. Also, the fact that the cost-of-energy computation must be made on the basis of plant facilities at one (1) location does not serve to limit taxpayer’s production costs. Further, the statute does not violate the equal protection provisions of the Kentucky Constitution because a processor of bought materials is not similarly situated to a processor of materials owned by others or a processor of its own materials. Louisville Edible Oil Prods. v. Revenue Cabinet Commonwealth, 957 S.W.2d 272, 1997 Ky. App. LEXIS 81 (Ky. Ct. App. 1997).

“Zero tolerance” provisions of KRS 189A.010 , pertaining to underage drinking and driving, are rationally related to a legitimate state purpose and are based on a valid distinction; therefore, such provisions are valid under the equal protection clauses of the United States and Kentucky Constitutions and do not constitute special legislation in violation of Ky. Const., § 59. Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ).

The proof requirement of KRS 391.105 , which pertains to intestate succession of persons born out of wedlock, does not violate the equal protection clauses of the federal or state Constitution. Harris v. Stewart, 981 S.W.2d 122, 1998 Ky. App. LEXIS 14 (Ky. Ct. App. 1998).

There was no rational basis for the geographically-based distinction created by KRS 159.051 between students subject to losing their operator’s licenses under the statute and students precluded from the statute; thus, KRS 159.051 was unconstitutional. D.F. v. Codell, 127 S.W.3d 571, 2003 Ky. LEXIS 262 ( Ky. 2003 ).

As the negative, secondary effects associated with sexually-oriented businesses were unique to those establishments, the fiscal court could have reasonably concluded that an establishment which regularly featured adult entertainment would be more likely to attract the negative, secondary effects associated with sexually-oriented businesses than an establishment which only occasionally featured adult-type entertainment; thus, regulations of McCracken County, Ky., Ordinance No. 2000-4 prohibiting nude dancing were not in violation of the Equal Protection Clause of the Kentucky Constitution. Jameson v. Commonwealth, 2004 Ky. App. LEXIS 229 (Ky. Ct. App. Aug. 6, 2004), rev'd in part, 215 S.W.3d 9, 2006 Ky. LEXIS 290 ( Ky. 2006 ).

Trial court’s order that allowed the mother to impute a child support obligation for a prior-born child, pursuant to KRS 403.212(2)(g)(4), was upheld because the statute protected a legitimate state interest in assuring that the prior-born child was cared for and the statute did not violate the father’s equal protection rights because he could not take a similar deduction for his after-born child. Kimbrough v. Child Support Div. ex rel. Belmar, 215 S.W.3d 69, 2006 Ky. App. LEXIS 226 (Ky. Ct. App. 2006).

KRS 218A.500 and KRS 218A.510 were constitutional, as applied to defendant. The statutes were not overbroad, because the facts surrounding defendant’s arrest provided a context to support a citation for possession of drug paraphernalia; the statutes were not vague, as they clearly gave a person of common intelligence notice of what was unlawful under the statutes; and the statutes did not violate defendant’s equal protection rights under Ky. Const. §§ 1, 2, and 3, as nothing in either statute could be construed as treating like persons differently. Atkins v. Commonwealth, 2007 Ky. App. LEXIS 285 (Ky. Ct. App. Aug. 17, 2007), review denied, ordered not published, 2007 Ky. LEXIS 257 (Ky. Nov. 15, 2007).

Although a classification between fire and casualty insurance companies that insured property or risks within the unincorporated areas of the county and those that did not could have had a rational basis, where a resident of the unincorporated area had alleged that the county placed revenue from the insurance license tax in a sinking fund which benefitted all citizens of the county, not just those in the unincorporated areas of the county, because that fact was in dispute, a motion to dismiss the equal protection claim was denied Rose v. Daviess County Fiscal Court, 2007 U.S. Dist. LEXIS 82481 (W.D. Ky. Nov. 5, 2007).

Where defendant’s newborn child testified positive for cocaine, trying her for first degree wanton endangerment of her unborn child under KRS 508.060(1) did not violate her due process and equal protection rights under Ky. Const. §§ 2, 3, and 11; abortion laws did not grant a woman the unfettered guarantee to an abortion at any time and certainly not to one on the day a woman gave birth. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

A State Health Plan issued by the Cabinet for Health and Family Services which established criteria for a pilot project to study the risks and benefits of allowing angioplasty at hospitals without immediate access to an open-heart surgery facility, was limited to one hospital in eastern Kentucky and one hospital in western Kentucky, and required the hospitals to be located thirty minutes from an on-site open-heart surgery center, was not unconstitutional, as: (1) such did not constitute special or local legislation, in violation of Ky. Const. §§ 59 and 60; (2) the classification was reasonable, natural, and consistent with the legitimate purpose of the government; and (3) it passed the rational basis test. St. Luke Hosps., Inc. v. Commonwealth, 254 S.W.3d 830, 2008 Ky. App. LEXIS 146 (Ky. Ct. App. 2008).

Consensus procedure required by KRS 342.316 for proving the existence of coal workers’ pneumoconiosis, and the clear and convincing standard required to rebut such a consensus, violated the equal protection guarantees of U.S. Const. amend. XIV and Ky. Const. § 1-3 because there was no rational basis or substantial and justifiable reason for the disparate treatment of coal workers. Pneumoconiosis caused by exposure to coal dust was the same disease as pneumoconiosis caused by exposure to dust particles in other industries, yet coal workers faced different, higher standard-of-proof requirements than those other workers. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Because the “Statute” (Ky. Rev. Stat. § 243.230(5) and its accompanying regulation, 804 Ky. Admin. Regs. 4:270) failed review under U.S. Const. amend. XIV, it likewise failed whatever review applied under the Kentucky Constitution. Maxwell's Pic-Pac, Inc. v. Dehner, 887 F. Supp. 2d 733, 2012 U.S. Dist. LEXIS 114420 (W.D. Ky. 2012 ), dismissed, 2014 U.S. Dist. LEXIS 93572 (W.D. Ky. July 9, 2014), aff'd in part and rev'd in part, 739 F.3d 936, 2014 FED App. 15P, 2014 U.S. App. LEXIS 761 (6th Cir. Ky. 2014 ).

Employee's claim that Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) violated equal protection was subject to rational basis review given that workers' compensation statutes concerned matters of social and economic policy. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) did not violate equal protection because paying employees between the ages of 57 and 65 a monetary benefit that was not tied to retraining may have encouraged them to leave the coal mining industry, thus removing employees susceptible to more severe impairment from the work place, and as a result, treating retraining incentive benefits eligible employees differently was rationally related to the purpose of those benefits. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

2017 Ky. Acts 1 does not violate the equal protection provisions of the Kentucky Constitution; the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Employers might be attracted to locate in a state where wages are lower as opposed to a state where wages are higher, and to the extent this conclusion might be characterized as speculative, it is undoubtedly rational; the legislature can clearly make a policy decision that 2017 Ky. Acts 1 might result in more jobs, albeit at lower wages, and that this result, in turn, might benefit the overall economic climate of Kentucky. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Rational basis review is appropriate for evaluating 2017 Ky. Acts 1 since the Act is expressly permitted by the Taft-Hartley Act. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

9.Fiscal Courts.

Statute organizing farm bureaus to advance agriculture in cooperation with state college of agriculture and United States department of agriculture and providing for appropriation by fiscal courts to such purpose did not violate this section. Hendrickson v. Taylor County Farm Bureau, 196 Ky. 75 , 244 S.W. 82, 1922 Ky. LEXIS 456 ( Ky. 1922 ).

Where a fiscal court resolution provided that cable television franchises would be awarded to the highest bidder in each district, the fiscal court having determined that such a method of operation was in the best interest of the community, the resolution was within the fiscal court’s authority and since all cable operators were treated alike, was not an exercise of police power to promote private industry. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

A county fiscal court’s resolution which provided approximately 65 percent of the total cost of transporting non-public elementary school students was not unconstitutional where (1) funds were not paid directly to any private or parochial school and were, instead, paid to the individual local board of education operated transportation system of contracted bus and vehicle companies, (2) the benefit provided by the resolution went directly toward the safety and welfare of elementary age school children and not into the accounts of non-public schools, and (3) the resolution did not establish a tuition ceiling as a requisite to eligibility for the transportation subsidy. Neal v. Fiscal Court, 986 S.W.2d 907, 1999 Ky. LEXIS 24 ( Ky. 1999 ).

When a county commissioner was also a member of the fiscal court, under Ky. Const., § 144, the county government’s merger into an urban county or merged government did not allow an elimination or reduction of the commissioner’s compensation, despite Ky. Const., § 3, prohibiting the payment of public funds to an official who had no duties, as his position was constitutionally created, and could not be abolished by the General Assembly. Owens v. Maze, 132 S.W.3d 874, 2003 Ky. App. LEXIS 101 (Ky. Ct. App. 2003).

10.Food and Drink.

A second-class city ordinance prohibiting retailing meats from vehicles did not violate this or any other section of bill of rights of the Constitution of Kentucky. Hahn v. Newport, 175 Ky. 185 , 194 S.W. 114, 1917 Ky. LEXIS 304 ( Ky. 1917 ).

11.Police Power.

A ferry franchise under this section is subject to alteration, and a statute prohibiting operation of a ferry within one mile of existing ferry is in nature of a police regulation and is not unconstitutional. State Highway Com. v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 ( Ky. 1933 ).

If a classification made by the legislature under the police power is not so arbitrary as to be unreasonable, and is put upon a rational basis which is calculated to protect the public health, safety or morals, it is valid. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

12.Public Services.

Legislative grant to city gas company of exclusive 20-year privilege of establishing gas works and supplying city with gas, constituted contract which was not violative of provision of former Constitution that forbade separate public emoluments or privileges for any man, or group of men, since services undertaken to be performed by such company were public services. Louisville Gas Co. v. Citizens' Gas Co., 115 U.S. 683, 6 S. Ct. 265, 29 L. Ed. 510, 1885 U.S. LEXIS 1881 (U.S. 1885) (decided under prior law).

Law that incorporated a private police and detective agency, and provided that members thereof who gave a bond and took an oath to faithfully perform the duties of their office would have authority to arrest and imprison, and required no public service and no qualification except ability to read and write English, and put no limit on the time a member could discharge such powers, was unconstitutional. Swincher v. Commonwealth, 72 S.W. 306, 24 Ky. L. Rptr. 1897 , 1903 Ky. LEXIS 301 (Ky. Ct. App. 1903).

A fire and life protective association incorporated under a special act not subject to municipal or public control, and whose expenses were paid by fire insurance companies doing business in the city, and whose members acted as agents of and for benefit of insurance companies, though incidentally protecting life and property, was not engaged in a public service under this section, and an act insofar as it purported to give the association a right of way through the streets and alleys, subject only to rights of the fire department, was void. Louisville R. Co. v. Louisville Fire & Life Protective Ass'n, 151 Ky. 644 , 152 S.W. 799, 1913 Ky. LEXIS 561 ( Ky. 1913 ).

Law which granted pensions to indigent confederate soldiers, did not violate this section, the services rendered to the state by confederate soldiers being deemed a public service in view of settled legislative policy as shown by maintaining confederate soldiers’ home and erecting monuments to distinguished confederate soldiers. Bosworth v. Harp, 154 Ky. 559 , 157 S.W. 1084, 1913 Ky. LEXIS 114 ( Ky. 1913 ).

Fiscal court order for appropriation of revenue to be used as part payment of salary of county agent who was employed by such court, was not violative of this section, since such order was made pursuant to legislation having ultimate public purpose of development of state’s agricultural interests. Carman v. Hickman County, 185 Ky. 630 , 215 S.W. 408, 1919 Ky. LEXIS 351 ( Ky. 1919 ).

Bonus of $300 voted to chief clerk of house of representatives had to be included in computation of his public salary, since such bonus could only be paid to him in consideration of his public services under this section. Sanders v. Talbott, 255 Ky. 50 , 72 S.W.2d 758, 1934 Ky. LEXIS 185 ( Ky. 1934 ).

Legislature may in accordance with this section appropriate and distribute compensation on per capita basis to all teachers of common schools of the state, as these teachers are state employees rendering service for the state for public purpose. Board of Education v. Talbott, 261 Ky. 66 , 86 S.W.2d 1059, 1935 Ky. LEXIS 592 ( Ky. 1935 ).

Public services as that term is used in this section, are not necessarily the same as official services, which are services rendered by an officer in the performance of his duties. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

Separate public emoluments when given in consideration of public services are allowed when a person has become a public benefactor, by reason of heroism, inventive genius, great mental endowments or a life of public virtue. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

The official services of a judge of the Court of Appeals are public services within the meaning of this section. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

This section does not apply to public services for which compensation has been provided or has been paid. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

A person may be granted separate emoluments or privileges by reason of public service, as contemplated by this section, only where such person shall, by heroic deeds, inventive genius, or great mental endowments, and a life of public virtue, become, in the legislature’s judgment, a public benefactor. Reid v. Robertson, 304 Ky. 509 , 200 S.W.2d 900, 1947 Ky. LEXIS 643 ( Ky. 1947 ).

Practicing profession of veterinary surgeon for one year did not come within definition of character of public services as contemplated by this section, and one who had thus practiced was not therefore entitled to grant of special privilege of practicing such profession without appropriate examination. Reid v. Robertson, 304 Ky. 509 , 200 S.W.2d 900, 1947 Ky. LEXIS 643 ( Ky. 1947 ).

The services contemplated by this section that would entitle one to separate public emoluments or privileges must be those directly affecting the public generally, at least to an appreciable extent, and not services remotely or indirectly affecting the public such as those performed in the prosecution of a chosen profession, necessarily for compensation. Reid v. Robertson, 304 Ky. 509 , 200 S.W.2d 900, 1947 Ky. LEXIS 643 ( Ky. 1947 ).

Provisions in law that enacted a division of medical hospitals and related services and law that authorized the use of state tax funds to match federal funds for the construction of nonprofit, privately-owned hospitals open to the public were not violative of the provisions in this section prohibiting exclusive grant of public emoluments except in consideration of public service, or of the provision in Const., § 171 prohibiting the levy and collection of taxes except for public purposes only. The proposed hospitals were to render a public service and were to be for public purposes. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

Payment of bonus to veterans of armed services was constitutional under this section since military service constituted proper public services. Grise v. Combs, 342 S.W.2d 680, 1961 Ky. LEXIS 393 ( Ky. 1961 ).

It was not unconstitutional, under Ky. Const., §§ 3 and 171, for the trial court to order the Cabinet for Health and Family Services to pay for substance abuse and mental health counseling recommended for a mother whose child was removed by the Cabinet, which she could not pay for, because governmental efforts in the area of family reunification served a public purpose as evidenced by the statutes providing for the Cabinet’s involvement in these matters. Cabinet for Health & Family Servs. v. Evans, 2006 Ky. App. LEXIS 52 (Ky. Ct. App. Feb. 17, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 831 (Ky. Ct. App. Feb. 17, 2006).

13.Taxation.

Law providing that distilled spirits in bonded warehouses would be assessed for taxation by state valuation and assessment board, rather than by county assessor, did not confer exclusive privilege. Commonwealth ex rel. Armstrong v. E. H. Taylor Jr. Co., 101 Ky. 325 , 41 S.W. 11 ( Ky. 1897 ).

Under the Constitution in force in 1888, a city, though empowered by its charter to contract with a water company for water for fire and domestic purposes, had no authority, as a part of the consideration of the contract, to grant the company an exemption of its property from taxation. Dayton v. Bellevue Water & Fuel Gaslight Co., 119 Ky. 714 , 68 S.W. 142, 24 Ky. L. Rptr. 194 , 1902 Ky. LEXIS 176 ( Ky. 1902 ) (decided under prior law).

An ordinance taxing professions practiced within the city, and exempting from the payment of the tax persons temporarily in the city of specific professional business, who did not advertise or solicit additional business therein, was not unreasonable, nor violative of this section. Evers v. Mayfield, 120 Ky. 73 , 85 S.W. 697, 27 Ky. L. Rptr. 481 , 1905 Ky. LEXIS 76 ( Ky. 1905 ).

An exemption from taxation not in consideration of public services is an exclusive and separate privilege and hence invalid. Winchester v. Winchester Water Works Co., 149 Ky. 177 , 148 S.W. 1, 1912 Ky. LEXIS 589 ( Ky. 1912 ).

Ordinance which exempted grocers from payment of license tax imposed upon other milk dealers was not unconstitutional, since grocer had to pay general license tax and thus was not granted special privileges. Newport v. French Bros. Bauer Co., 169 Ky. 174 , 183 S.W. 532, 1916 Ky. LEXIS 677 ( Ky. 1916 ).

Law under which city assessor made tax assessment of alcoholic beverages in bonded warehouses was not violative of this section. Jetts Bros. Distilling Co. v. Carrollton, 178 Ky. 561 , 199 S.W. 37, 1917 Ky. LEXIS 758 ( Ky. 1917 ), writ of error dismissed, 252 U.S. 1, 40 S. Ct. 255, 64 L. Ed. 421, 1920 U.S. LEXIS 1654 (U.S. 1920).

Legislature could not confer power on city to tax some property and not other property, in view of constitutional prohibition against separate privileges of former Constitution. Purcell v. Lexington, 186 Ky. 381 , 216 S.W. 599, 1919 Ky. LEXIS 226 ( Ky. 1919 ), dismissed, 253 U.S. 476, 40 S. Ct. 583, 64 L. Ed. 1021, 1920 U.S. LEXIS 1430 (1920) (decided under prior law).

Under this section and Const., §§ 170 and 181, a city is not exempt from the payment of state gasoline tax. Louisville v. Cromwell, 233 Ky. 828 , 27 S.W.2d 377, 1930 Ky. LEXIS 663 ( Ky. 1930 ).

A provision in a statute which exempts from taxation bonds issued in the construction of bridges, is not a violation of this section. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

Law imposing gross sales tax was not unconstitutional as violating this section. Moore v. State Board of Charities & Corrections, 239 Ky. 729 , 40 S.W.2d 349, 1931 Ky. LEXIS 864 ( Ky. 1931 ).

Provision exempting from taxation bonds issued by state educational institutions did not render unconstitutional statute providing for construction of buildings by such institutions. J. D. Van Hooser & Co. v. University of Kentucky, 262 Ky. 581 , 90 S.W.2d 1029, 1936 Ky. LEXIS 76 ( Ky. 1936 ).

Exemption of the property and bonds of municipal housing commission from taxation does not violate this section. Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ).

County could levy special tax for purpose of funding transportation of pupils to private, sectarian and parochial schools, when general funds were exhausted, without violation of this section. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

It was not arbitrary or unreasonable for metropolitan sewer district to fix higher rates for county users than for city users, where sewer system had been paid for by the city taxpayers and city sewer bonds were still outstanding and would be paid from sinking fund raised from taxation of city property. Louisville & Jefferson County Metropolitan Sewer Dist. v. Joseph E. Seagram & Sons, Inc., 307 Ky. 413 , 211 S.W.2d 122, 1948 Ky. LEXIS 738 ( Ky. 1948 ).

A private agency may be utilized as the pipeline through which a public expenditure is made, the test being not who receives the money, but the character of the use for which it is expended. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

Apportionment method of taxation of towboats and barges was constitutional under this section and Const., §§ 171, 172, 174 and 175. Reeves v. Island Creek Fuel & Transp. Co., 313 Ky. 400 , 230 S.W.2d 924, 1950 Ky. LEXIS 859 (Ky.), cert. denied, 340 U.S. 853, 71 S. Ct. 82, 95 L. Ed. 625, 1950 U.S. LEXIS 1535 (U.S. 1950).

KRS 154.001 to 154.170 (now repealed or renumbered), creating independent state agency to appropriate funds and make loans therefrom to qualified local development agencies, was not violative of this section or Const., § 171, since public purpose of such law was employment relief and encouragement of industry. Industrial Development Authority v. Eastern Kentucky Regional Planning Com., 332 S.W.2d 274, 1960 Ky. LEXIS 142 ( Ky. 1960 ).

In the field of taxation the legislature may make classifications, and the constitutional limitations prohibit only such classifications as are arbitrary and unreasonable in having no fair and substantial relation to the permissible governmental purpose of the legislation. Department of Revenue v. Spalding Laundry & Dry Cleaning Co., 436 S.W.2d 522, 1968 Ky. LEXIS 184 ( Ky. 1968 ).

The exemption from the sales tax of machinery used in manufacturing is not arbitrary and unreasonable because it does not equally exempt similar machinery used in a service industry or plant. Department of Revenue v. Spalding Laundry & Dry Cleaning Co., 436 S.W.2d 522, 1968 Ky. LEXIS 184 ( Ky. 1968 ).

As a consequence of the disparity between the numbers of eligible producers voting in successive referenda required to adopt and to terminate or discontinue the assessment program for tobacco promotion (KRS 247.780 (1)), the votes of those producers who favor the assessment program are accorded substantially greater weight than votes of those persons in the same class of producers who are opposed to the program; thus the terms and conditions of subsection (1) of KRS 247.780 effectively operate to deny the producers of burley tobacco who are opposed to an assessment program the equal protection of the law required by the Fourteenth Amendment to the Constitution of the United States, and the same contravenes this section and Const., § 59 and therefore said subsection is discriminatory and void. Tabor v. Council for Burley Tobacco, Inc., 599 S.W.2d 466, 1980 Ky. App. LEXIS 319 (Ky. Ct. App. 1980).

If the purposes served by an action constitute public purposes for which tax revenues may be levied and expended under Const., § 171, the manner of the use and expenditure is also proper under this section and is not a private use as distinct from a public use. Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ).

The corporate shares tax, KRS 132.020 and the exemption statute, KRS 136.030(1), are inseparable because the striking of the exemption statute would result in the taxation not only of corporations, but their shareholders which result would be in direct contravention of the expressed intent of the General Assembly; thus both statutes are invalid as they discriminate against interstate commerce and thus violate the commerce Clause of the United States Constitution under the reasoning of Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S. Ct. 848, 133 L. Ed. 2d 796, 1996 U.S. LEXIS 1379 (1996).St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, 1997 Ky. LEXIS 17 ( Ky. 1997 ), reprinted, 942 S.W.2d 893 ( Ky. 1997 ), modified, 1997 Ky. LEXIS 45 (Ky. Apr. 24, 1997), limited, Dawson v. Birenbaum, 968 S.W.2d 663, 1998 Ky. LEXIS 56 ( Ky. 1998 ).

Although classification by KRS 136.120 of municipal solid waste disposal facilities that dispose of waste by landfill singles out such facilities for disparate tax treatment and is not a perfect fit to the state’s objectives, such classification is reasonably related to the state’s goals for solid waste management and is therefore constitutional. Cooksey Bros. Disposal Co. v. Boyd County, 973 S.W.2d 64, 1997 Ky. App. LEXIS 132 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 930, 119 S. Ct. 338, 142 L. Ed. 2d 279, 1998 U.S. LEXIS 6495 (U.S. 1998).

Legislation which extended a provider tax to hospitals did not violate the equal protection clause. Children's Psychiatric Hosp., Inc. v. Revenue Cabinet, 989 S.W.2d 583, 1999 Ky. LEXIS 43 ( Ky. 1999 ).

A county ordinance, which levied an occupational license fee on the gross compensation of all persons employed or self-employed within the county, did not violate the equal protection clauses of the United States and/or Kentucky Constitutions, notwithstanding that a city within the county already imposed a similar occupational license fee and that the city license fee could not be offset against the county license fee because the county had a population of less than 30,000. Preston v. Johnson County Fiscal Court, 27 S.W.3d 790, 2000 Ky. LEXIS 119 ( Ky. 2000 ).

Where no fundamental right is at stake and no “suspect class” is implicated, a tax exemption is analyzed for equal protection purposes only to determine if there is a “rational basis” for the classification; Under the rational basis test, a classification must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Popplewell's Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 2004 Ky. LEXIS 92 ( Ky. 2004 ).

14.Revocation or Amendment.

Law which gave the railroad commission power to hear and determine, on complaint, whether a railroad is exacting extortionate rates, and to fix reasonable rates, did not violate the railroad’s rights under a special charter granted prior to the Constitution, as under this section every grant of a franchise, privilege or exemption is subject to revocation, alteration or amendment. Louisville & N. R. Co. v. Siler, 186 F. 176, 1911 U.S. App. LEXIS 5131 (6th Cir. 1911), aff’d, Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (1913). See Vanceburg & Stout's Lane Turnpike Rd. Co. v. Chesapeake & O. R. Co., 280 F. 482, 1922 U.S. App. LEXIS 1814 (6th Cir. Ky. 1922 ); Louisville v. Louisville R. Co., 281 F. 353, 1922 U.S. App. LEXIS 2083, 1922 U.S. App. LEXIS 2084 (6th Cir. Ky. 1922 ).

Amendments to law regarding incorporation of marketing associations allowing corporate directors to extend corporate term of existence without vote of members, and directors’ action thereunder, did not violate due process or contract impairment under Const., § 19 or United States Const., Art. I § 10, since this section was in effect and part of corporate charter, thus providing right to revoke, alter, or amend such charter, and since members suffered no substantial impairment of their voting rights thereby as they could always withdraw anyway at anytime. Ayers v. Burley Tobacco Growers Cooperative Asso., 344 S.W.2d 836, 1961 Ky. LEXIS 264 ( Ky. 1961 ).

15.— Revocation.

A city has no right to revoke an otherwise binding contract unless that power has been granted it by the Constitution or the legislature. Bowling Green v. Davis, 313 Ky. 203 , 230 S.W.2d 909, 1950 Ky. LEXIS 853 ( Ky. 1950 ).

Where bus company held certificate from state to operate in certain area, annexation of such area by city gave city bus company superior right to operate therein, since under this section such certificate was revocable. Whitaker v. Louisville Transit Co., 274 S.W.2d 391, 1954 Ky. LEXIS 1229 ( Ky. 1954 ).

16.— Amendment.

Under this section, railway corporate had power to consolidate, and contractual rights of preferred stockholders were subject to corporation’s prerogative to thereby alter such rights. Donohue v. Heuser, 239 S.W.2d 238, 1951 Ky. LEXIS 866 ( Ky. 1951 ).

17.Teachers’ Pensions.

This section does not prohibit granting of pensions to teachers. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

18.Sovereign Immunity.

This section does not deny to the state the right to waive its exemption from suit in any particular case. Daniel's Adm'r v. Hoofnel, 287 Ky. 834 , 155 S.W.2d 469, 1941 Ky. LEXIS 654 ( Ky. 1941 ).

19.Due Process.

The application of a liberal construction of the workers’ compensation act by the workers’ compensation board does not violate an employer’s right to due process of law under this section. Cowden Mfg. Co. v. Fultz, 472 S.W.2d 679, 1971 Ky. LEXIS 207 ( Ky. 1971 ).

20.Road Funds.

Although the allocation of the rural secondary road fund among all counties on the basis of rural population and rural road use, regardless of the amount of tax collected in each county, did not consider the over-all population of each county or the number of vehicles per mile of rural roads in accordance with the formulae for distribution of road funds prescribed by KRS 177.360 and 179.410 , the allocation was not unconstitutionally arbitrary since those formulae were not so directly related to the public purpose of improving rural roads as to require their inclusion and the basis used for the allocation was reasonably related to the public purpose. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

21.Medical Malpractice Insurance.

The burden of collecting and handling the surcharge mentioned in KRS 304.40-330 (now repealed) does not violate the rights of malpractice insurers under this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provisions of former law providing for patients’ compensation fund, authorizing the commissioner to exempt certain physicians from the fund and to fix the rate of surcharges, was not unconstitutional on its face and, if properly implemented, would not violate this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The primary function of the University of Kentucky medical center clinic activities is to further the educational and service goals of the medical center; accordingly, KRS 164.939 to 164.944 , which provide medical malpractice coverage for clinical employees, do not violate this section since the coverage is being provided in return for public services. Board of Trustees v. Commonwealth, 625 S.W.2d 867, 1981 Ky. App. LEXIS 306 (Ky. Ct. App. 1981).

22.Worker’s Compensation.

The interpretation of KRS 342.740 and 342.730 , prior to the 1976 amendment of the latter, to allow minimum weekly benefits for permanent, partial disability was not unconstitutional. Yocum v. Gantley, 566 S.W.2d 176, 1978 Ky. App. LEXIS 517 (Ky. Ct. App. 1978).

KRS 342.316(7), which provided that workers’ compensation was payable only to after-born children of a marriage existing at the beginning of a disability, did not violate the federal or Kentucky equal protection clauses since (1) the statute was, in fact, a saving statute which extended benefits to after-born children of a marriage existing on the date of the compensable event, and (2) the statute was rationally based so as to give an employer, its insurer and the Special Fund a reasonable basis to anticipate the amount and duration of their potential liability for a particular claim and to establish reasonable monetary reserves to cover that liability. Steven Lee Enters. v. Varney, 36 S.W.3d 391, 2000 Ky. LEXIS 153 ( Ky. 2000 ).

Consensus procedure under KRS 342.316 for coal workers’ pneumoconiosis claims did not violate equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 3 because the inherent differences in pneumoconiosis, which was slow to develop, and a traumatic injury provided a reasonable basis for the different statutory treatment for such workers’ compensation claims. KRS 342.316 (13) did not impose a greater burden of proof than on those workers who claimed benefits under KRS 342.730 as the presumption in the consensus procedure was a rebuttable one that could be overcome with clear and convincing evidence. Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

KRS 342.316(3)(b)(4)(e) denied a workers’ compensation benefits claimant equal protection because it discriminated between him and a similarly-situated worker whose employer also submitted evidence of category 1 disease but whose claim was not subject to the second phase of the consensus process; KRS 342.316(3)(b)(4)(e) creates two classes of workers based solely on the amount of discrepancy between the worker’s and employer’s evidence, and because there is no rational or reasonable basis for such discrimination where the employer’s evidence effectively concedes the worker’s entitlement to a retraining incentive benefit. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 2009 Ky. LEXIS 71 ( Ky. 2009 ).

Ky. Rev. Stat. Ann. § 342.7305(2) offends equal protection guarantees by creating two separate and unequal subclasses of similarly situated hearing loss claimants: all of whom suffered work-related injuries severe enough to qualify for an impairment rating under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and all of whom endured equivalent permanent sensory loss, limited treatment modalities, diminution of daily activities, and occupational restrictions and preclusions, but some of whom are denied equal access to income benefits due to imposition of an arbitrary impairment rating threshold. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Court of Appeals of Kentucky holds Ky. Rev. Stat. Ann. § 342.7305(2) violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Ky. Const. §§ 1, 2, and 3. In particular, the Court of Appeals holds the Supreme Court of Kentucky’s decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 ( Ky. 2011 ), is dispositive. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Time limitation in Ky. Rev. Stat. Ann. § 342.750(6) did not violate the guarantees of equal protection under the federal and state constitutions because the four-year limit applied equally to all injured workers; substantial and justifiable reasons supported that classification and it was rationally related to a legitimate government purpose; and the employer was entitled to rely on the repose provision in Ky. Rev. Stat. Ann. § 342.750(6). Calloway Cty. Sheriff's Dep't v. Woodall, 607 S.W.3d 557, 2020 Ky. LEXIS 300 ( Ky. 2020 ).

Statutory amendment, which terminated workers’ compensation income benefits when the recipient reached the age of 70 or four years from the date of injury or last injurious exposure, whichever event occurred last, did not violate the Equal Protection Clause because the age classification was rationally related to the legitimate state interests of preventing a duplication of wage-loss protection programs and of promoting the solvency of the Kentucky workers’ compensation system. Cates v. Kroger, 2021 Ky. LEXIS 311 (Ky. Aug. 26, 2021).

23.Aid to Nonpublic Schools.

KRS 171.215 , which provides that the department of libraries must supply textbooks without cost to pupils attending nonpublic schools, is unconstitutional in that it directs the expenditure of public funds for educational purposes through nonpublic schools. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

If the exclusive purpose of KRS 171.215 , which provides that the state must supply textbooks to students in nonpublic schools, is to pay the expenses of children in private schools, this section has been directly violated; conversely, if the textbooks also aid in the functioning of the private schools themselves, Const., §§ 171, 184, 186 and 189 have been violated. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

24.Regulation of Economic Matters.

A statute involving the regulation of economic matters comports with both state and federal equal protection if the law is rationally related to a legitimate government objective; the constitutionality of a statute will be upheld if its classification is not arbitrary, or if it is founded upon any substantial distinction suggesting the necessity or propriety of such legislation. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

25.Justification.

Justification under Const., § 59 equates to reasonable justification under Const., §§ 2 and 3. Revenue Cabinet v. Smith, 875 S.W.2d 873, 1994 Ky. LEXIS 34 (Ky.), cert. denied, 513 U.S. 1000, 115 S. Ct. 509, 130 L. Ed. 2d 417, 1994 U.S. LEXIS 8026 (U.S. 1994).

26.Public Employees.

Kentucky Claims Against Local Governments Act, KRS 65.200 to 65.2006 , does not violate Ky. Const. § 3 because the duty of a local government to defend employees in civil actions extends only to claims arising out of employment with the local government. Richardson v. Louisville/Jefferson County Metro Gov't, 260 S.W.3d 777, 2008 Ky. LEXIS 152 ( Ky. 2008 ).

Students had no private right of action for their state constitutional claims when the parents of the students argued that allowing public school employees to be protected by immunity against suit for alleged failure to prevent or report alleged sexual abuse of students by a special education teacher, while private school employees faced litigation, violated the Equal Protection Clause of the Kentucky Constitution. Doe v. Logan, 602 S.W.3d 177, 2020 Ky. App. LEXIS 6 (Ky. Ct. App. 2020).

Cited in:

Covington & Lexington Turnpike Road Co. v. Sanford, 164 U.S. 578, 17 S. Ct. 198, 41 L. Ed. 560, 1896 U.S. LEXIS 1891 (U.S. 1896); Gosnell v. Louisville, 104 Ky. 201 , 46 S.W. 722, 20 Ky. L. Rptr. 519 , 1898 Ky. LEXIS 156 ( Ky. 1898 ); Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 2 73 ( Ky. 190 7); Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 3 23 ( Ky. 190 7); McGlone v. Womack, 129 Ky. 274 , 111 S.W. 688, 33 Ky. L. Rptr. 811 , 33 Ky. L. Rptr. 864 , 1908 Ky. LEXIS 16 6 (Kan. Ct. App. 1908); Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 2 47 ( Ky. 1908 ); Commonwealth v. Hodges, 137 Ky. 233 , 125 S.W. 689, 1910 Ky. LEXIS 562 ( Ky. 1910 ); Gay v. Brent, 166 Ky. 833 , 179 S.W. 1051, 1915 Ky. LEXIS 783 ( Ky. 1915 ); Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ); Hughes v. Marvin, 216 Ky. 190, 287 S.W. 561, 1926 Ky. LEXIS 872 ( Ky. 1926 ); Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ); Jennings v. Fidelity & Columbia Trust Co., 240 Ky. 24 , 41 S.W.2d 537, 1931 Ky. LEXIS 3 42 ( Ky. 1931 ); Fox v. Petty, 244 Ky. 385 , 51 S.W.2d 260, 1932 Ky. LEXIS 44 6 ( Ky. 1932 ); Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ); Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 44 2 ( Ky. 1937 ); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ); Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Carr v. Jefferson County, 275 Ky. 685 , 122 S.W.2d 482, 1938 Ky. LEXIS 475 ( Ky. 1938 ); Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ); Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ); Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ); O'Brien v. O'Brien, 294 Ky. 793 , 172 S.W.2d 595, 1942 Ky. LEXIS 3 ( Ky. 1942 ); Kesselring v. Bonnycastle Club, Inc., 299 Ky. 585 , 186 S.W.2d 402, 1945 Ky. LEXIS 471 ( Ky. 1945 ); Fraysure v. Kentucky Unemployment Compensation Com., 305 Ky. 164 , 202 S.W.2d 377, 1947 Ky. LEXIS 709 ( Ky. 1947 ); Radford v. Estill County, 306 Ky. 330 , 207 S.W.2d 762, 1948 Ky. LEXIS 557 ( Ky. 1948 ); Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 ( Ky. 1948 ); Goodwin v. Louisville, 309 Ky. 11 , 215 S.W.2d 557, 1948 Ky. LEXIS 1013 (Ky. 1948); Masonic Widows & Orphans Home & Infirmary v. Louisville, 309 Ky. 532 , 217 S.W.2d 815, 1948 Ky. LEXIS 1081 (Ky. 1948); Eline v. Lampe, 275 S.W.2d 64, 1955 Ky. LEXIS 347 ( Ky. 1955 ); Davis v. Commonwealth Life Ins. Co., 284 S.W.2d 809, 1955 Ky. LEXIS 46 ( Ky. 1955 ); Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ); Public Service Com. v. Paris, 299 S.W.2d 811, 1957 Ky. LEXIS 432 ( Ky. 1957 ); General Electric Co. v. American Buyers Cooperative, Inc., 316 S.W.2d 354, 1958 Ky. LEXIS 42 ( Ky. 1958 ); Abernathy v. Irvine, 355 S.W.2d 159, 1961 Ky. LEXIS 16 ( Ky. 1961 ); Stovall v. Eastern Baptist Institute, 375 S.W.2d 273, 1964 Ky. LEXIS 406 ( Ky. 1964 ); Freeman v. Danville Tobacco Board of Trade, Inc., 380 S.W.2d 215, 1964 Ky. LEXIS 284 ( Ky. 1964 ); Louisville v. Klusmeyer, 324 S.W.2d 831, 1959 Ky. LEXIS 396 ( Ky. 1959 ); Otto v. Kosofsky, 476 S.W.2d 626, 1971 Ky. LEXIS 64 ( Ky. 1971 ); Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984); E.M. Bailey Distributing Co. v. Conagra, Inc., 676 S.W.2d 770, 1984 Ky. LEXIS 235 ( Ky. 1984 ); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ); Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ); Kentucky Ass'n of Realtors, Inc. v. Musselman, 817 S.W.2d 213, 1991 Ky. LEXIS 109 ( Ky. 1991 ); Whitlock v. Rowland, 453 S.W.3d 740, 2015 Ky. App. LEXIS 1 (Ky. Ct. App. 2015).

Notes to Unpublished Decisions

1.Equal Protection.

Unpublished decision: Operating property statute, KRS 136.120 , taxed the cable television company for the right to public thoroughfares of the cities in which it operated in the same manner that it taxed other domestic public service corporations enjoying that privilege, thus ensuing the taxing law was equally applied; accordingly, the cable television company did not show that either its equal protection or substantive due process rights under the Kentucky Constitution were violated. Revenue Cabinet v. Comcast Cablevision, 147 S.W.3d 743, 2003 Ky. App. LEXIS 330 (Ky. Ct. App. 2003).

Opinions of Attorney General.

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

A city is not legally authorized to grant a bonus or additional compensation to city employees out of public funds over and above that amount fixed according to law. OAG 62-1 .

A city ordinance which exempted from city taxes all property owned by volunteer firemen was void for going beyond the exemptions allowed in the Constitution. OAG 62-81 .

The governing bodies of the state university and colleges, under their power of appointment and their power to operate the institutions, have an area of reasonable discretion in effecting payment of recruiting expenses such as travel and lodging, whether those interviewed are employed or not, out of funds labelled “General Expense.” OAG 64-421 .

A city has authority to exempt a manufacturing establishment for at least five (5) years from city taxes only as an inducement to its location within the city, but no exemption is permitted from city school taxes. OAG 65-171 .

The granting of free parking space on a street beside the courthouse would not violate section 3 of the Kentucky Constitution since the consideration is public services and the public interest. OAG 67-376 .

Payments in consideration of an employee’s resigning and relinquishing his right to appeal are not made “in consideration of public services.” 68-237.

The expenses of a potential job applicant should be allowed only in those extraordinary circumstances in which a complicated or difficult job, requiring real academic and work experience cannot be filled properly and adequately without such extra recruitment consideration. OAG 69-347 .

Legislation granting state aid in the construction of an office building for the Kentucky Municipal League would be constitutional. OAG 70-93 .

While a school board has authority to sell school property, it only has authority to sell it for its fair market value. Therefore it would be a violation of this section for a school board to sell school property to any person or organization for a nominal sum simply because the purchaser proposed to use the property for laudable public purposes. Although KRS 45.360(7) (now repealed) does not apply to school boards, such a board and its members would be well advised to follow the procedure prescribed therein for their own protection. OAG 72-30 .

A city is not exempt from the payment of the tax imposed on gasoline in view of this section’s provision that no property shall be exempt from taxation except as provided in the Constitution. OAG 72-92 .

The provisions of KRS 61.710 requiring financial disclosure by any employee of a daily newspaper with a circulation of 50,000 or more published in Kentucky who either orally or in writing contributes to the editorial policy of the newspaper and by any employee of a radio or television station that is owned in common with such a newspaper who directly or indirectly contributed to the editorial policy of the station are unconstitutional under this section and Const., §§ 59 and 60 as establishing an arbitrary classification and as special legislation. OAG 72-289 .

A city could not, under this section, refuse to license a movie theater, which was a legitimate business, engaged in the exhibition of nude and X-rated films, nor could it increase the license fees of such theater unless the increase was reasonable and applied to all theaters. OAG 72-396 .

A board of education cannot legally pay the tuition of a teacher taking a university course even though it would enhance her professional qualifications and make her services more valuable to the school district, as this section prohibits such payments to any person except in consideration of public services and such payment would, in effect, be giving her extra compensation without the performance of extra duties. OAG 73-110 .

The board of commissioners of the city of Paducah does not have the power, by ordinance or otherwise, to regulate, set aside, or “roll back” all residential reappraisals on property belonging to persons over 65 years of age, leaving this group with their 1972 assessment as it was for the previous year, as this section prohibits exemption of any property from taxation except as provided in the Constitution. Section 171 requires that taxes shall be levied and collected for public purposes and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax, and § 172 requires all property not exempted by the Constitution to be assessed at fair cash value, so that any taxpayer aggrieved by the assessment placed upon his property by the city assessor should protest to the board of equalization as provided by KRS 92.440 . OAG 73-195 .

Under this section and Kentucky Const., § 171 a city ordinance authorizing an incentive bonus for city employees who work a full year without taking a vacation to which they are entitled is illegal. OAG 73-436 .

Although a board of education does not have to accept nonresident students on a tuition basis, if it decides to do so it must charge all pupils at the same rate and not upon a varying scale which is determined upon some extraneous factor such as the assessed value of a person’s residential property. OAG 73-837 .

Under this section and Const., § 171 a city employee cannot be paid for working during his vacation period rather than taking the vacation days as this would constitute double payment for a particular period of time. OAG 74-306 .

Reimbursement, by a county on order of the fiscal court under authority granted by KRS 67.083 (1), of a county judge for life, health and accident insurance premiums paid by him on his life is payment of a fringe benefit in consideration of public services. OAG 74-347 .

The reimbursement by a city of a private corporation for the construction of a portion of a sewer line to a private hospital along public rights of way, in the form of property tax credits to the corporation until completed would be in violation of Const., §§ 171 and 174 requiring uniform and equal tax levies according to classification, this section prohibiting exclusive grants except for public service and Const., § 170 as it is not enumerated as exempt under that section. OAG 74-616 .

Reclamation of strip mined Kentucky land is a public purpose and a fiscal court may assist in funding a private college to set up instruction and a degree in reclamation, providing the fiscal court determines that the program will result in a real and direct benefit to the county by, for example, the direct involvement of persons taking the instruction in reclamation within the county. OAG 74-730 .

The coal severance tax imposed by KRS 143.010 to 143.990 , as distributed to the counties pursuant to KRS 42.300 (repealed), is not unconstitutional in violation of this section or Const., §§ 51, 59, 177, or 181. OAG 75-76 .

KRS 180.276 must describe with intelligibility the public purpose to be served if it is to meet the constitutional test of public purpose as set out in this section and as the legislative intent is completely obscure, the constitutionality of KRS 180.276 will have to be determined by the courts. OAG 75-445 .

Although a monetary payment given to employees in state service in recognition of excellence of past performance would be unconstitutional as a gratuity, a single monetary payment in consideration of future outstanding performance is legal consideration. OAG 75-704 .

Subject to any maximum level of office expenses which may have been established by a fiscal court order pursuant to KRS 64.530 , a county clerk could purchase, out of the fees of his office, a hospitalization plan for his regularly employed deputies as a fringe benefit based on service. OAG 76-69 .

The marshal in a sixth class city cannot be paid a bonus at any time. OAG 76-242 .

Although subsequent to January 2, 1978, persons may still be elected to the office of justice of the peace and justices of the peace would retain any nonjudicial powers found in the statutes, in a county having the commissioner type of government in 1978 there are practically no authorized statutory functions for a justice of the peace and since performance of some statutory duties is necessary to entitle justices of the peace to compensation and expense allowances in 1978, payment of any compensation or expense allowance to such justices not serving on fiscal courts would raise a serious constitutional question. OAG 77-133 .

Where the county jail was condemned and closed and the incumbent county jailer performed only janitorial services at the courthouse but had no duties in relation to keeping prisoners since they were housed in jail facilities in surrounding counties, the payment of any portion of such jailer’s salary not reflecting services actually rendered would be illegal. OAG 77-523 .

This section contemplates the use of tax money to pay public officials only for services actually rendered. OAG 78-206 .

Where a police officer was on work-related disability for approximately one year and, consequently, rendered no public service during that period since he did not work in his capacity as a city police officer, he was not entitled to paid annual leave time for that period of time. OAG 78-206 .

The fiscal court can approve the payroll prior to the actual pay period so that the clerk can issue checks without having to wait for the next fiscal court meeting for approval as long as, at the time the checks are actually issued and delivered to the county employees, the checks relate only to services actually performed prior to the issuance and delivery of the checks to the payees. OAG 78-248 .

Where county attorney had been suspended from the practice of law he no longer possessed the constitutional qualifications of a county attorney and thus since he can no longer serve as county attorney and as a prosecutor in the court of justice his prosecutorial salary from the State treasury and his expense allowance should be stopped. OAG 78-279 .

Where the Kentucky State Board of Registration for Professional Engineers and Land Surveyors leased office facilities for 35 years and were required to prepay all $135,000 of rent for that time, but could get a refund of the bulk of that amount if they decided to terminate the lease sooner, the expenditure was valid and constitutional since they got what they bargained for, i.e., an estate for years. OAG 78-724 .

City’s proposed educational incentive pay plan for its firemen is illegal in that there is no statutory authorization for the program; moreover payments for taking college courses do not come within the definition of “salary” for municipal firemen and since such proposed payments are not for services rendered to the city those payments would be in violation of this section and Const., § 171. OAG 79-32 .

A city cannot appropriate public funds to nonprofit corporations or to associations or individuals in absence of legislative authorization when it has no control of such organizations and no direct connection with them; furthermore, all appropriations of public money by municipalities must be for a public and corporate purpose rather than for private uses. OAG 79-67 .

Under KRS 132.190 , all real and personal property within this state is subject to taxation, unless exempted by the Constitution and while household goods of a person used in his home is exempt from taxation, under § 170 of the Constitution, the personal property of the taxpayer used in his business or profession is not exempt, which means a lawyer would have to list for taxes the personal tangible property in his law office, which could include law library, bookcases, typewriters, filing cabinets and other items of equipment used in that office. OAG 79-140 .

Where an exclusive franchise is in the public interest, this section would not be violated, since the consideration is public services and the public interest. OAG 79-199 .

A county would be in violation of the law if an improvement was made for a school bus turnaround if the property was privately owned and not deeded to the county. OAG 79-200 .

The use of county funds, personnel or equipment to improve or maintain private drives or lanes is illegal and unconstitutional. OAG 79-343 .

The practice of making full or partial payments on state personal service contracts which reflect no services actually rendered is unconstitutional. OAG 79-448 .

This section is unequivocal on the point that public emolument to any person must be based on the consideration of “public services,” which means “public services actually rendered,” not “public services to be rendered.” OAG 79-448 .

The use of city street equipment and material for paving private driveways purchased with public funds is illegal and unconstitutional, and the fact that the private citizens whose driveways are paved will repay the city for the material used is of no consequence as the question hinges on the initial use of such equipment and material purchased with public municipal funds. OAG 79-509 .

The advance payment of money to the Brussels office of the European Economic Development Office of the Commonwealth of Kentucky for the purpose of paying certain operational expenses is constitutional under this section and § 171 of the Constitution and meets precisely the requirements of KRS 44.010 that claims against the state treasury be paid only when due since the final and effective disbursement of the operational money is only effected after the persons or corporations have actually performed the services. OAG 79-532 .

A city cannot legally provide fire protection services only to those city employees and their immediate families who reside outside the city limits, as a fringe benefit, as such services constitute a bonus or extra compensation and are prohibited by this section and § 171 of the Constitution. OAG 79-611 .

An officer would not be entitled to utilize any of his annual leave, unless and until he has earned it, since to do otherwise would violate this section as payment for services not actually rendered. OAG 80-28 .

The payment of travel expenses to out-of-state persons invited to Kentucky by departments and agencies of the central state government for screening employment interviews, involving high level positions, would definitely be for a public purpose since it is desirable to procure the best possible qualified people for such positions in the interest of promoting efficient government. OAG 80-37 .

Any practice of making full or partial payments on state personal service contracts in advance of the actual and full performance of the contract is unconstitutional. OAG 80-38 .

The advance transfer of state money to the International Tourism Office for the payment of operational expenses is constitutional under this section and Const., § 171, since the final and effective disbursement of the state money is made only after the goods and services, for which a claim is made, have been fully furnished and performed. OAG 80-38 .

The mere transfer of the state money from the state’s depository to the Brussels Kentucky Office of Tourism does not involve, at that point, a final effective disbursement. OAG 80-38 .

The fiscal court may expend county funds for the maintenance of the road leading to the public cemetery, provided that such road has been taken into the county road system by way of a formal order of the fiscal court. OAG 80-562 .

A county could not legally construct a bridge across a creek for the benefit of one (1) or two (2) property owners and provide that the owner or owners of the property upon which the bridge is built convey the necessary land to the county by a right-of-way deed. OAG 80-587 .

It is not lawful to pay group insurance for part of the county employees and not all of them since, for purposes of hospitalization insurance, all county employees would be in the same class and discrimination cannot be made against persons in the same class. OAG 81-188 .

The compensation of the county judge/executive, county clerk, sheriff and jailer can be adjusted to the rubber dollar maximum pursuant to KRS 64.527 ; however, such adjustment for a magistrate or coroner would violate this section and Const., § 171 where such offices are not full-time positions, unless the officer is only paid a percentage of the rubber dollar maximum equivalent to the actual hours worked as compared to a full workweek. OAG 82-16 .

Where an outgoing fiscal court sets new salary levels for part-time constitutional officers, which salaries exceed the amount that the part-time officers should receive, the new fiscal court should not honor the new salaries for any part-time officers; if the new salaries for the part-time officers are paid, the new fiscal court members would be personally and individually liable. OAG 82-16 .

Even if no contractual obligation for maintenance and repair by a county is created, a fiscal court must use its good business judgment in entering into a lease of county real property and the lease must be considered as involving a public purpose and in the public interest, as relates to the rental aspect and use of the property. OAG 82-60 .

KRS 160.291 calls for all of the full-time, regular employees of a school district to be treated in parity. Thus, while school employees are to continue to receive their pay checks even though not actually working, it is the school district’s obligation under KRS 160.291 and this section to see that before the school year has ended, teachers and classified employees alike have only been paid for school days actually worked. OAG 82-132 .

KRS 79.080 authorizing hospitalization coverage of city employees does not authorize the exclusion of a group of employees for any reason, much less one based upon the total family income of the individual employee which is completely unrelated to his public employment duties. Such exclusion would no doubt be considered discriminatory and create an arbitrary classification in violation of this section and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. OAG 82-247 .

An arrangement whereby the state’s money remains in the hands of officials or employees of state government and is not finally and effectively paid out until the services are performed is valid under Const., §§ 3 and 171. OAG 82-281 .

State money can only be spent for a “public purpose,” not a “private” one; thus either goods must be furnished to the state government or services for the state government must be actually rendered before the state’s money can be used to finally pay for such. OAG 82-281 .

Statutory law and Const., §§ 3 and 171 mandate the payment of state money only after the services have been rendered or performed. OAG 82-281 .

Where it is contemplated that state money must be turned over or advanced to private or corporate contractors before contractual services are actually rendered, and the state officials engaging in the contracts determine in good faith that such advancements are necessary in point of time and the ultimate rendering of the services sought, such advancements may be constitutional under these conditions: (1) the contract must expressly provide that the responsible contractor will not make final effective disbursement of the advanced state funds until the contractual services have in fact been rendered; (2) in order to protect the state treasury, the contractor must execute a suitable bond or procure an insurance contract providing for full repayment to the state where advance money has been disbursed without reflecting the concomitant contractual services to be rendered. OAG 82-281 .

The expenditure of public funds by local governments to pay employees their salaries while those employees, who are members of the National Guard and reserve components of the armed forces of the United States, are on annual military leave does not violate state constitutional provisions concerning the expenditure of public funds. OAG 82-305 .

A plan which provides an annual bonus to teachers who use no sick leave is not legally permissible in Kentucky. There is no statute authorizing a bonus for unused sick leave and, if the legislature passed such a statute, it would be unconstitutional as violative of this section. OAG 82-316 .

While a city cannot legally donate or contribute public funds to a private corporation over which it has no control, with certain exceptions where the state legislature has specifically authorized such donations, the city could contract with a nonprofit organization to render paramedic services to its citizens the same as it is specifically authorized to do with respect to contracting for emergency ambulance service pursuant to KRS 65.710 and 65.720 . The city could also provide for paramedic service in conjunction with the operation of its own emergency ambulance service on behalf of the citizens of the city. OAG 82-366 .

The county commissioners on a fiscal court must be paid the same compensation, regardless of what the legal sum is. In view of the fact that Const., § 171 and this section demand that an officer or employee of government receive compensation actually earned by rendering appropriate statutory services, this means that each commissioner is required to have approximately the same work load. OAG 82-461 .

Former law regarding merger of credit unions did not violate any constitutional provisions, even though the effect of the section was to permit credit unions consisting of state employees to merge under the provisions of KRS Chapter 271A, which only requires the affirmative vote of a majority of the shareholders of each such credit union desiring to merge, while the only manner in which the members of other types of credit unions can effectively unite their credit unions is by dissolution under former law providing for voluntary dissolution, a prerequisite of which was a four-fifths (4/5) affirmative vote of the shareholders. OAG 82-467 .

A fiscal court could sell a hospital physical plant, which was not needed by the county, to a nonprofit corporation for at least its fair market value; a sale of surplus land for fair market value would satisfy Const., §§ 171, 179 and this section, as relates to prohibited gifts of county money. OAG 83-37 .

Assuming that a city council’s sole reason for enacting an ordinance restricting the outside activity of the city’s water and sewer employees from gainful employment in the private field of plumbing and contracting during their off duty hours, is simply to prevent them from competing with private plumbers, this action on the part of the city, would be unconstitutional as a violation of the equal protection rights of the employees, unless the city could show that the outside employment adversely affected their performance in their positions with the city. OAG 83-130 .

Where fiscal court magistrates served on a number of boards and committees, but none of these boards or committees were official committees of the fiscal court, no part of the expense allowance provided by KRS 64.530(6) could be paid since such moneys can only be expended in consideration for public services. OAG 84-71 .

Although the Commonwealth Credit Union was created with the trappings of a private corporation, it is recognized by the General Assembly as a state agency, which exists for the recognized purpose of extending “fringe benefits” to state employees; such a purpose is a public purpose, as envisioned in this section and Const., § 171. OAG 84-80 .

While the General Assembly could authorize the earning of annual and sick leave days in advance as part of the emoluments of service in the General Assembly, to grant sick leave after the fact of serving time would be a grant in violation of this section. Therefore, the correct interpretation of KRS 18A.185 is that General Assembly time may be included in determining total length of service for purposes of figuring the 1 day, 1 1/4 days, 1 1/2 days, or 1 3/4 days of annual leave earned per month for those persons eligible to earn and now earning annual leave, but members of the General Assembly do not earn annual or sick leave while they are in such positions. OAG 84-128 .

In light of Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175, 1984 U.S. LEXIS 93, (1984), the citizenship requirement of Const., § 228 is not enforcible as to the office of notary public under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and this section. OAG 85-37 , modifying OAG 77-297 .

It would be unconstitutional under this section and Const., § 171 to utilize state facilities and expend state funds to provide exclusive educational privileges to only children of employees of certain foreign owned corporations; however, in the case of the Japanese Saturday school administered by the University of Kentucky, since the program was operated with 100% private funds and did not involve providing exclusive educational privileges to only children of employees of certain foreign owned corporations, it was a legally permissible endeavor. OAG 86-82 .

Payment by a board of education for the sabbatical leave of a teacher or superintendent is constitutional so long as the teacher or superintendent agrees to extend at least two (2) years of future services to the school board. OAG 88-29 . ( OAG 75-370 rescinded)

Compensation for unused sick leave at time of retirement does not constitute a bonus, in contravention of this section of the Kentucky Constitution, but instead constitutes part of retirement benefits. OAG 91-219 .

There is nothing in KRS 136.1873 , 136.1875 , or 136.1877 that would exempt “the occasional, transient motorcoach, charter, or tour bus operation” from the assessment procedure set out in KRS 136.1873 , nor is there anything unconstitutional in this procedure; it is simply an attempt by the state to insure compliance with the constitutional directive that all property be taxed. OAG 92-71 .

KRS 136.1873 , 136.1875 , and 136.1877 do not subject any property to taxation because the Constitution has already subjected all property in the state to taxation with a few limited exceptions. OAG 92-71 .

Statutory provisions that generally operate to require a fiscal court to maintain a county road, or that underpin an expenditure for such purpose, will not supercede constitutional provisions limiting governmental expenditures to public purposes. OAG 92-74 .

The county is not responsible for repairing a bridge which, though in the county road system, now due to rerouting of the county road serves only one (1) private residence; the bridge does not serve a public purpose and accordingly, public funds cannot be spent to repair or improve it. OAG 92-74 .

A county road department is prohibited from providing at public expense, labor necessary to install a culvert to enhance access to private property from a county road. OAG 93-24 .

A fiscal court, assuming funds have been properly budgeted for the purpose, may lawfully approve reimbursement, subject to proper documentation being submitted, of the reasonable expenses for travel, meals, and lodging, actually paid by one elected to a county office who has not yet assumed such office, where such expenses are immediately incident to attending statutorily provided training for such office. OAG 93-72 .

The General Assembly may permit referenda on local school curriculum; however, in doing so, the General Assembly must not violate equal protection provisions and special and local legislation provisions of the Kentucky Constitution. OAG 00-3 .

McCracken County Fiscal Court has the authority under Kentucky law to offer a grant of a short term loan to a start-up business if done for a legitimate public purpose. OAG 2008-06 .

Research References and Practice Aids

Cross-References.

Corporation charters and grants subject to revocation, KRS 271A.710 .

Private and local legislation prohibited, Const., § 59.

Property exempt from taxation, Const., § 170; KRS 132.190 to 132.210 .

Journal of Mineral Law & Policy.

Comments, Constitutional Validity of the Kentucky Unmined Coal Tax: Gillis v. Yount, 4 J.M.L. & P. 159 (1988).

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

Kentucky Law Journal.

J. & R. Stephenson, Public Schools: Serrano v. Priest — A Challenge to Kentucky, 60 Ky. L.J. 156 (1971).

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Weber and Olsen, Religious Property Tax Exemptions in Kentucky, 66 Ky. L.J. 651 (1977-1978).

Notes, Fraud Between Sexual Partners Regarding the Use of Contraceptives, 71 Ky. L.J. 593 (1982-83).

Comments, Design for Challenge: The Kentucky Statute of Repose for Improvements to Real Property, 73 Ky. L.J. 1143 (1984-85).

Notes, Court-Annexed Arbitration: Kentucky’s Viable Alternative to Litigation, 77 Ky. L.J. 881 (1988-89).

Reynolds, Education Finance Reform Litigation and Separation of Powers: Kentucky Makes Its Contribution, 80 Ky. L.J. 309 (1990-91).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Northern Kentucky Law Review.

Note, Facing the Economic Challenges of the Eighties — The Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

§ 4. Power inherent in the people — Right to alter, reform, or abolish government.

All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.

NOTES TO DECISIONS

1.Constitutional Revision.

Const., §§ 256 and 258 do not provide exclusive methods of amending or revising the Constitution. Accordingly a revised Constitution prepared by an assembly created by law is properly submitted for a vote by the people. Gatewood v. Matthews, 403 S.W.2d 716, 1966 Ky. LEXIS 348 ( Ky. 1966 ).

2.Local Government.

The rights granted under this section are rights of all the people of the entire Commonwealth, and this section does not pertain to local government. Jacober v. Board of Comm'rs, 607 S.W.2d 126, 1980 Ky. App. LEXIS 374 (Ky. Ct. App. 1980).

Cited:

Bosworth v. Harp, 154 Ky. 559 , 157 S.W. 1084, 1913 Ky. LEXIS 114 ( Ky. 1913 ); Board of Education v. Sea, 167 Ky. 772 , 181 S.W. 670, 1916 Ky. LEXIS 492 ( Ky. 1916 ); Furste v. Gray, 240 Ky. 604 , 42 S.W.2d 889, 1931 Ky. LEXIS 458 ( Ky. 1931 ); Funk v. Fielder, 243 S.W.2d 474, 1951 Ky. LEXIS 1128 ( Ky. 1951 ); Public Service Com. v. Paris, 299 S.W.2d 811, 1957 Ky. LEXIS 432 ( Ky. 1957 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Employee Defense Act: Wearing Down Sovereign Immunity, 66 Ky. L.J. 150 (1977-78).

Northern Kentucky Law Review.

Brown, Notes, Deters v. Judicial Retirement and Removal Commission: Free Speech and the Appearance of Judicial Impartiality, 22 N. Ky. L. Rev. 497 (1995).

§ 5. Right of religious freedom.

No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.

NOTES TO DECISIONS

1.Hospitals.

The drafters of our Constitution did not intend to go so far as to prevent a public benefit, like a hospital in which the followers of all faiths and creeds are admitted, from receiving state aid merely because it was originally founded by a certain religious denomination whose members now serve on its board of trustees. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

The provision in Const., § 5 prohibiting preference by law to any religious sect, society or denomination was not violated by provisions of law which authorized allocation of state tax funds to nonprofit, privately owned hospitals which were governed and controlled by the members of certain religious faiths. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

Lease of city-county hospital to religious organization did not violate this section. Abernathy v. Irvine, 355 S.W.2d 159, 1961 Ky. LEXIS 16 ( Ky. 1961 ), cert. denied, 371 U.S. 831, 83 S. Ct. 49, 9 L. Ed. 2d 67, 1962 U.S. LEXIS 649 (U.S. 1962).

2.Oaths.

Fact that jurors were given oath ending with “so help me God” did not violate constitutional rights of person accused of felony. Pierce v. Commonwealth, 408 S.W.2d 187, 1966 Ky. LEXIS 81 ( Ky. 1966 ).

3.Schools.
4.— Religious Beliefs of School Administration.

Where school administrator’s use of her religious beliefs in exercising her administrative duties and in exercising authority over teachers was offensive to some of the staff, it did not invariably pose some substantial threat to public safety, peace or order, and thus, her behavior in this regard was protected conduct. Hooks v. Smith, 781 S.W.2d 522, 1989 Ky. App. LEXIS 151 (Ky. Ct. App. 1989).

5.— Compulsory Attendance.

While the state has an interest in the education of its citizens which could be furthered through compulsory education, the rights of conscience of those who desire education of their children in private and parochial schools should be protected. Kentucky State Board for Elementary & Secondary Education v. Rudasill, 589 S.W.2d 877, 1979 Ky. LEXIS 295 ( Ky. 1979 ), cert. denied, 446 U.S. 938, 100 S. Ct. 2158, 64 L. Ed. 2d 792, 1980 U.S. LEXIS 1592 (U.S. 1980).

The language of this section concerning compulsory school attendance is intended to permit the Commonwealth to prepare its children to intelligently exercise the right of suffrage by compelling attendance at a formal school, public or private or parochial, for a legislatively determined period each year. Kentucky State Board for Elementary & Secondary Education v. Rudasill, 589 S.W.2d 877, 1979 Ky. LEXIS 295 ( Ky. 1979 ), cert. denied, 446 U.S. 938, 100 S. Ct. 2158, 64 L. Ed. 2d 792, 1980 U.S. LEXIS 1592 (U.S. 1980).

If the legislature wishes to monitor the work of private and parochial schools in accomplishing the constitutional purpose of compulsory education, it may do so by an appropriate standardized achievement testing program, and if the results show that one or more private or parochial schools have failed to reasonably accomplish the constitutional purpose, the Commonwealth may then withdraw approval and seek to close them for they no longer fulfill the purpose of “schools.” Kentucky State Board for Elementary & Secondary Education v. Rudasill, 589 S.W.2d 877, 1979 Ky. LEXIS 295 ( Ky. 1979 ), cert. denied, 446 U.S. 938, 100 S. Ct. 2158, 64 L. Ed. 2d 792, 1980 U.S. LEXIS 1592 (U.S. 1980).

6.— Achievement Testing.

Requiring students to take the Kentucky Instructional Results Information System (KIRIS) examination did not violate students’ constitutional rights of freedom of religion. Triplett v. Livingston County Bd. of Educ., 967 S.W.2d 25, 1997 Ky. App. LEXIS 74 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 1104, 119 S. Ct. 870, 142 L. Ed. 2d 771, 1999 U.S. LEXIS 599 (U.S. 1999).

7.— Maintenance.

Contract by school district trustees to maintain sectarian school free of charge from public funds in return for sectarian school teaching common school pupils free of charge was in violation of this section. Williams v. Board of Trustees, 173 Ky. 708 , 191 S.W. 507, 1917 Ky. LEXIS 518 ( Ky. 1917 ) ( Ky. 1917 ).

8.— Student Transportation.

A county fiscal court’s resolution which provided approximately 65 percent of the total cost of transporting non-public elementary school students was not unconstitutional where (1) funds were not paid directly to any private or parochial school and were, instead, paid to the individual local board of education operated transportation system of contracted bus and vehicle companies, (2) the benefit provided by the resolution went directly toward the safety and welfare of elementary age school children and not into the accounts of non-public schools, and (3) the resolution did not establish a tuition ceiling as a requisite to eligibility for the transportation subsidy. Neal v. Fiscal Court, 986 S.W.2d 907, 1999 Ky. LEXIS 24 ( Ky. 1999 ).

9.— Place of Worship.

A public school opened with prayer and the reading without comment of passage from King James’ translation of the Bible, during which pupils are not required to attend, is not a place of worship, nor are its teachers ministers of religion within the meaning of this section. Hackett v. Brooksville Graded School Dist., 120 Ky. 608 , 87 S.W. 792, 27 Ky. L. Rptr. 1021 , 1905 Ky. LEXIS 144 ( Ky. 1905 ).

10.Religion.

Taxpayers could not intervene in a suit by a religious non-profit against the Commonwealth regarding a tourism incentive program as the required significant legal interest they alleged was rooted in their status as taxpayers, and their generalized interest in how their tax dollars were used was insufficient to intervene as of right under Fed. R. Civ. P. 24(a); they did not establish direct personal injury and mere disagreement over litigation strategy was not inadequacy of representation. Ark Encounter, LLC v. Stewart, 311 F.R.D. 414, 2015 U.S. Dist. LEXIS 147650 (E.D. Ky. 2015 ), dismissed in part, 152 F. Supp. 3d 880, 2016 U.S. Dist. LEXIS 8405 (E.D. Ky. 2016 ).

Taxpayers could not intervene in a suit by a religious non-profit against the Commonwealth regarding a tourism incentive program because the potential strains on judicial economy and delays, confusion, and prejudice to the existing parties that would result from unrestricted intervention by taxpayers weighed against allowing permissive intervention under Fed. R. Civ. P. 24(b). Ark Encounter, LLC v. Stewart, 311 F.R.D. 414, 2015 U.S. Dist. LEXIS 147650 (E.D. Ky. 2015 ), dismissed in part, 152 F. Supp. 3d 880, 2016 U.S. Dist. LEXIS 8405 (E.D. Ky. 2016 ).

11.— Beliefs.

KRS 39A.285 and 39G.010 do not violate the First and Fourteenth Amendments, U.S. Const. amend. I and XIV, and Ky. Const. § 5 as the legislation merely pays lip service to a commonly held belief in the puissance of God; the legislation does not seek to advance religion, nor does it have the effect of advancing religion, but instead seeks to recognize the historical reliance on God for protection. Ky. Office of Homeland Sec. v. Christerson, 371 S.W.3d 754, 2011 Ky. App. LEXIS 209 (Ky. Ct. App. 2011), cert. denied, 568 U.S. 1228, 133 S. Ct. 1582, 185 L. Ed. 2d 577, 2013 U.S. LEXIS 2211 (U.S. 2013).

12.— Witnesses.

A witness may not be cross-examined as to his religious belief for the purpose of discrediting him, as by Const., § 2 and this section, all persons are placed on the same footing as witnesses, without regard to religious beliefs. Louisville & N. R. Co. v. Mayes, 80 S.W. 1096, 26 Ky. L. Rptr. 197 (1904).

13.— Materials.
14.— — Distribution.

One distributing religious tracts for Jehovah’s Witnesses, either selling or donating them, is engaged in religious and not commercial activity and an ordinance forbidding commercial peddling, if applicable, would violate this section guaranteeing freedom of religion. Seevers v. Somerset, 295 Ky. 595 , 175 S.W.2d 18, 1943 Ky. LEXIS 304 ( Ky. 1943 ). See Hibsman v. Madisonville, 295 Ky. 601 , 175 S.W.2d 21, 1943 Ky. LEXIS 305 ( Ky. 1943 ).

15.— Services.

Award of 99 percent of fiscal court’s transportation subsidy to educational institutions that promoted religious teachings and beliefs, while equivalent support for the public school optional program was withheld violated this section and Const., § 189. Fiscal Court v. Brady, 885 S.W.2d 681, 1994 Ky. LEXIS 88 ( Ky. 1994 ).

16.— — Public Safety.

A legislature may prohibit the practice of a religious rite or ceremony that endangers the lives, health or safety of the participants or other persons. Lawson v. Commonwealth, 291 Ky. 437 , 164 S.W.2d 972, 1942 Ky. LEXIS 254 ( Ky. 1942 ).

The legislature has no right to interfere with religious beliefs, but it does have the right to impose reasonable limitations upon acts done under color of the exercise of religious beliefs, including the power to regulate the times, places and manner of performing such acts when necessary to safeguard the health, good order and comfort of the community. Lawson v. Commonwealth, 291 Ky. 437 , 164 S.W.2d 972, 1942 Ky. LEXIS 254 ( Ky. 1942 ).

17.— — Reptiles.

Statute prohibiting handling of snakes in religious services was valid, notwithstanding that harmless as well as poisonous snakes were included, since ordinary person cannot distinguish between them. Lawson v. Commonwealth, 291 Ky. 437 , 164 S.W.2d 972, 1942 Ky. LEXIS 254 ( Ky. 1942 ).

18.Sunday Laws.

Statute pertaining to and regulating certain amusements, work and labor on Sabbath could not be constitutionally enforced as regulation of religion under this section. Commonwealth v. Phoenix Amusement Co., 241 Ky. 678 , 44 S.W.2d 830, 1931 Ky. LEXIS 150 ( Ky. 1931 ).

19.Taxation.

Notwithstanding this section or Const., §§ 170 or 189, trust fund devoted to propagation of Christian principles as taught by Christian church was not exempt from taxation as church property. Commonwealth v. Thomas, 119 Ky. 208 , 83 S.W. 572, 26 Ky. L. Rptr. 1128 , 1904 Ky. LEXIS 160 ( Ky. 1904 ).

KRS 158.115 authorizing county to use county funds to provide transportation for school children attending school in compliance with compulsory attendance laws, where children did not reside within reasonable walking distance of school and there were no sidewalks upon which they could travel, did not violate this section, notwithstanding that it would authorize transportation of children to parochial schools as well as public schools for it is simply an exercise of police power for the protection of children against the inclemency of weather and hazards of highway traffic. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

20.Employment Discrimination.

KRS 344.030(5) and 344.040 prohibiting employers from discriminating on the basis of religion unless the employer is unable to reasonably accommodate to the employee’s religious observance do not violate the establishment clauses of the federal or state Constitutions since the statutes have a secular purpose to promote equal employment opportunity, do not have a primary effect which either advances or inhibits religion and do not involve excessive entanglement of the government in religion. Kentucky Com. on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350, 1982 Ky. App. LEXIS 277 (Ky. Ct. App. 1982), cert. denied, 462 U.S. 1133, 103 S. Ct. 3115, 77 L. Ed. 2d 1369, 1983 U.S. LEXIS 635 (U.S. 1983).

City and county ordinances which prohibited employment discrimination on the basis of sexual orientation or gender identity did not violate the constitutional prohibition against interference with the rights of conscience. Hyman v. City of Louisville, 132 F. Supp. 2d 528, 2001 U.S. Dist. LEXIS 4016 (W.D. Ky. 2001 ).

21.Use of Vehicle.

KRS 189.820 does not infringe upon the right to exercise religion by restricting religious worship rituals or enforcing compulsory conduct to which a person is conscientiously opposed; driving an automobile is not a fundamental constitutional right, but a legitimately regulated privilege, like the use of public roads, and the use of a vehicle and the public roads are not acts of religious worship. KRS 189.820 is a neutral law of general applicability, and does not invoke strict scrutiny analysis; the Commonwealth’s objective of ensuring public safety through the most effective means possible by use of an emblem to alert to a slow-moving vehicle overshadowed any encumbrances on religious practices. KRS 189.820 would have passed constitutional muster if a strict scrutiny analysis was applied; an argument that a bicycle exemption created a showing of legislative belief that slow-moving vehicle emblems did not promote roadway safety was rejected, and an argument that reflective tape was a less restrictive alternative was also rejected. Gingerich v. Commonwealth, 2011 Ky. App. LEXIS 97 (Ky. Ct. App. June 3, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 963 (Ky. Ct. App. June 3, 2011).

Drivers who refused to display a slow-moving vehicle emblem on horse-and-buggy vehicles for religious reasons could be ticketed and fined under KRS 189.820 without violating their right to the free exercise of religion under Ky. Const. §§ 1, 5. Under the rational basis standard of review, which was appropriate because § 189.820 is a public safety statute that generally applies to all slow-moving vehicles and does not prohibit any religious practice, there was ample rational basis for a statute regulating slow-moving vehicles for safety reasons. Gingerich v. Commonwealth, 382 S.W.3d 835, 2012 Ky. LEXIS 175 ( Ky. 2012 ).

22.Scope of Protection.

Free-exercise-of-religion protections in Ky. Const. §§ 1, 5 provide no more protection than the First Amendment, U.S. Const. amend. I; thus, generally applicable statutes that provide for the public health, safety, and welfare and only incidentally affect the practice of religion are subject to rational basis review under the Kentucky Constitution, as they are under the federal Constitution. Enactments that directly prohibit or restrain a religious practice are subject to a strict scrutiny standard of review under Kentucky law. Gingerich v. Commonwealth, 382 S.W.3d 835, 2012 Ky. LEXIS 175 ( Ky. 2012 ).

Cited:

Calvary Baptist Church v. Milliken, 148 Ky. 580 , 147 S.W. 12, 1912 Ky. LEXIS 486 ( Ky. 1912 ); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 2 41 ( Ky. 1937 ); Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ); Ashland v. Calvary Protestant Episcopal Church, 278 S.W.2d 708, 1955 Ky. LEXIS 483 ( Ky. 1955 ); Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

Opinions of Attorney General.

Under subsection (2) of KRS 160.290 , a school board may make regulations designed to protect the general welfare and safety of students and in doing so may take into account specific standards of moral conduct so that school dances could be eliminated as an approved school function by the board unless such ban were imposed for religious reasons, in which case it would violate this section and the first amendment to the federal Constitution. OAG 70-167 .

For the Commonwealth to grant to a private college the power to exercise eminent domain, from a public-purpose standpoint the private institution of higher learning would have to be one which accords entrance privileges to qualified applicants on an open and equal basis without discrimination as to race, national origin or religious belief. OAG 70-567 .

The benefits of eminent domain could be given to certain qualifying private colleges either by providing for the exercise of the right in behalf of a particular qualifying private college through a designated state agency, with related over-all responsibilities for higher education, or by extending the right to certain specified classes of private colleges and private universities. OAG 70-567 .

The acceptance by the Commonwealth for a possible erection on the capitol grounds of a monolith and base on which is inscribed the Ten Commandments would, as a replica of a recognized code of law or moral conduct, not appear to offend either the Kentucky or United States Constitutions. OAG 71-179 .

Voluntary and spontaneous prayer meetings by students on school property not held during regular school hours constitute no violation of this section. OAG 72-386 .

While conceivably a state university might legally employ a minister to teach or perform services not related to his professional status as a minister or to the promotion of any religion, this section prohibits the appointment of financial aid from state funds to a chaplain or religious education director of a state subsidized college or university. OAG 73-563 .

A local board of education may constitutionally conduct within its school speech therapy courses for parochial school pupils residing within the school district. OAG 75-639 .

A nonprofit organization, created for the production of outdoor “religious dramas” such as to contribute to the “religious well-being” of county citizens, is nonsecular or sectarian in its publicly declared and avowed character; thus, even though it produces other than religious dramas, the financial support by the government with coal funds runs afoul of the first amendment. OAG 79-490 .

County money cannot be legally used to maintain a cemetery or cemetery road if the cemetery only allows burial of persons of a particular religion, since such expenditure would involve the use of public funds with a preference for a particular religious faith; however, even though the cemetery is maintained by a particular religious faith, if the cemetery is available for the public generally, regardless of the particular faith of the maintaining church, the expenditure would be constitutional. OAG 82-101 .

There is no statute that regulates the entrance age for a child to attend a nonpublic school and one could not constitutionally be enacted due to the Kentucky Supreme Court’s view of this section and the proscription against state regulation of nonpublic schools. OAG 82-408 .

Since the statutory powers of a county fiscal court do not include carrying on or promoting the work of the church or churches, a fiscal court cannot legally expend county tax money in putting rock and gravel upon church parking lots, meritorious as it might otherwise be in relation to spiritual and moral training. OAG 83-175 .

Research References and Practice Aids

Cross-References.

Freedom of worship, Const., § 1.

Religious instruction in schools, KRS 158.170 to 158.260 .

School money not to be used for sectarian schools, Const., § 189.

Kentucky Law Journal.

Weber and Olsen, Religious Property Tax Exemptions in Kentucky, 66 Ky. L.J. 651 (1977-1978).

Comment, Regulation of Fundamentalist Christian Schools: Free Exercise of Religion v. The State’s Interest in Quality Education, 67 Ky. L.J. 415 (1978-1979).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Northern Kentucky Law Review.

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

Comments, Their Life Is In The Blood: Jehovah’s Witnesses, Blood Transfusions And The Courts, 10 N. Ky. L. Rev. 281 (1983).

The Establishment Clause: A Survey of Recent Religion Cases Decided Within the Sixth Circuit, 29 N. Ky. L. Rev. 73 (2002).

Bartlett, Displaying the Ten Commandments on Public Property: The Kentucky Experience: Wasn’t It Written In Stone?, 30 N. Ky. L. Rev. 163 (2003).

§ 6. Elections to be free and equal.

All elections shall be free and equal.

NOTES TO DECISIONS

1.In General.

Reasonable classifications may be provided even in elections so long as the election is public and open to all qualified electors alike and where every voter has the same right as any other voter to cast his ballot for the candidate of his choice. Mann v. Cornett, 445 S.W.2d 853, 1969 Ky. LEXIS 185 ( Ky. 1969 ).

2.Construction.

This section was construed to mean that the voter shall not be physically restrained in the exercise of his right to vote. Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3 ).

3.Application.

This section applies only to general elections. Rosenberg v. Republican Party of Louisville & Jefferson County, 270 S.W.2d 171, 1954 Ky. LEXIS 1025 ( Ky. 1954 ).

4.Absentee Voting.

The fact that law that provided for absentee voting in federal elections did not make provision for registering ballots of absent voters on voting machines in precincts where such machines are used did not result in violation of requirement of this section that elections be free and equal, since special ballot boxes could be provided in such precincts to receive the absentee ballots. Commonwealth ex rel. Dummit v. O'Connell, 298 Ky. 44 , 181 S.W.2d 691, 1944 Ky. LEXIS 837 ( Ky. 1944 ).

Law that prohibited mailing of absentee ballot to any applicant prior to 14 days before election, was violative of this section because it would operate to deprive numbers of voters of opportunity to vote. Queenan v. Russell, 339 S.W.2d 475, 1960 Ky. LEXIS 469 ( Ky. 1960 ).

Though there is no unqualified constitutional right to vote by absentee ballot, when the legislature grants such right by statute, it must operate with equality among all the class to which it is granted. Queenan v. Russell, 339 S.W.2d 475, 1960 Ky. LEXIS 469 ( Ky. 1960 ).

Amendment to absentee voting law that established two (2) general classes of voters eligible to vote by absentee ballot did not violate this section. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

5.Apportionment.

Since the apportionment of the state into senatorial districts under the Act June 28, 1893 was accepted for 13 years without its validity being questioned, the constitutionality of the act could not be questioned in 1906 on the ground that it infringed on this section. Adams v. Bosworth, 126 Ky. 61 , 102 S.W. 861, 31 Ky. L. Rptr. 518 , 1907 Ky. LEXIS 20 ( Ky. 1907 ).

The city council of a city of the fourth class being authorized by statute to divide the city into wards, and provide for the election of councilmen from their respective wards, and there being no constitutional or statutory provision requiring that such division be so made as to provide equal representation, the courts cannot interfere with the exercise of the legislative power so conferred by invalidating an ordinance so dividing the city into wards as to cause unequal representation. Moore v. Georgetown, 127 Ky. 409 , 105 S.W. 905, 32 Ky. L. Rptr. 315 , 32 Ky. L. Rptr. 323 , 1907 Ky. LEXIS 148 ( Ky. 1907 ).

In reapportionment case, fact that districts did not contain exact numbers of people did not violate this section, since “absolute equality cannot be obtained.” Watts v. O'Connell, 247 S.W.2d 531, 1952 Ky. LEXIS 718 ( Ky. 1952 ).

Redistricting of congressional districts, resulting in some differences in district population and lack of compactness, was not violative of this section. Watts v. Carter, 355 S.W.2d 657, 1962 Ky. LEXIS 73 ( Ky. 1962 ). But see Watts v. O'Connell, 247 S.W.2d 531, 1952 Ky. LEXIS 718 ( Ky. 1952 ).

It is duty of legislature to recognize that disproportionate representation, whether it results from population changes or from new legislation, can be so flagrant and unwarranted that duty of courts to uphold constitutional rights of equality under law will override traditional reluctance to enter political thicket. Watts v. Carter, 355 S.W.2d 657, 1962 Ky. LEXIS 73 ( Ky. 1962 ).

6.Ballots.

Statutory provisions requiring voter instead of judge to deposit ballot in box, requiring voter to detach secondary stub, and requiring ballot boxes to be 15 feet from election officers, do not violate this section. State Board of Election Comm'rs v. Coleman, 235 Ky. 24 , 29 S.W.2d 619, 1930 Ky. LEXIS 305 ( Ky. 1930 ).

Because of the distinct qualifications, responsibilities and duties required of judicial officers separate from political affiliation, a valid basis exists for providing a separate judicial ballot. Mann v. Cornett, 445 S.W.2d 853, 1969 Ky. LEXIS 185 ( Ky. 1969 ).

Law providing for contents and arrangement of judicial ballots did not violate Const., § 6 for although it provided for a separate judicial ballot, it afforded every voter an equal right to exercise his franchise in the selection of judicial officers. Mann v. Cornett, 445 S.W.2d 853, 1969 Ky. LEXIS 185 ( Ky. 1969 ).

7.— Emblems.

Where improper emblems were used on ballots in a local option election for the purpose of influencing voters, such emblems tended to prevent a free and equal expression of opinion on the part of the voters and rendered the election void. Conley v. Hardwick, 141 Ky. 136 , 132 S.W. 140, 1910 Ky. LEXIS 398 ( Ky. 1910 ).

8.— Insufficient Supply.

There was not a free and equal election, within this section, where a third of the electors were prevented from voting because of an insufficient supply of ballots. Hocker v. Pendleton, 100 Ky. 726 , 39 S.W. 250, 19 Ky. L. Rptr. 135 , 1897 Ky. LEXIS 48 ( Ky. 1897 ).

9.Bond Issues.

Where the issuance of bonds is the subject of an act, even though the money is to be devoted to several distinct and unrelated purposes, neither this section nor Const., § 51 is violated. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

10.Candidates.

Where a candidate was nominated for justice of the peace and filed a withdrawal as candidate for constable although he had not been nominated as such, when his name was left off the ballot as a candidate for justice of the peace he was not chargeable with any improper conduct or negligence in filing the withdrawal as candidate for constable. Ferguson v. Rohde, 449 S.W.2d 758, 1970 Ky. LEXIS 474 ( Ky. 1970 ).

11.— Listing on Ballot.

The right to vote and be voted for is a constitutional right, but the privilege of having one’s name printed on the ballot as a candidate is limited to those who comply with statutory requirements. Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

Law providing that except for candidates for judge of circuit court or Court of Appeals, no candidate defeated for office in primary election could have name put on ballot for same office in general election, was not violative of this section. Rosenberg v. Queenan, 261 S.W.2d 617, 1953 Ky. LEXIS 1025 ( Ky. 1953 ).

An individual who has been nominated as required by law has an unqualified right to have his name appear on the ballot. Ferguson v. Rohde, 449 S.W.2d 758, 1970 Ky. LEXIS 474 ( Ky. 1970 ).

The county clerk’s failure to place a properly nominated person’s name on the ballot is such a statutory irregularity as must be deemed so pervasive as to vitiate the entire election, as pertains to the office involved. Ferguson v. Rohde, 449 S.W.2d 758, 1970 Ky. LEXIS 474 ( Ky. 1970 ).

12.— Nomination Certificates.

Law requiring nomination certificates to be filed prior to primary election, did not violate this section requiring elections to be free and equal. Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

13.— Time for Filing.

Law that specified time for filing for office by candidates in cities of fourth class, did not violate this section or Const., §§ 59 or 60. Hallahan v. Moody, 419 S.W.2d 770, 1967 Ky. LEXIS 196 ( Ky. 1967 ).

14.Election Regulations.

A proviso in the election law that “a candidate who has received the next highest number of votes, and who has not violated the provisions of the law shall be declared . . . . . elected” was unconstitutional and inoperative so far as it authorized the election of a candidate who has not received a majority or plurality of votes cast, which was necessary to a free and equal election. McKinney v. Barker, 180 Ky. 526 , 203 S.W. 303, 1918 Ky. LEXIS 102 ( Ky. 1918 ) ( Ky. 1918 ).

The provisions of the election law that authorized the court to award the election to the second highest candidate had violated the corrupt practices law were constitutional as to primary elections, but unconstitutional as to general elections. Creech v. Fields, 276 Ky. 359 , 124 S.W.2d 503, 1939 Ky. LEXIS 537 ( Ky. 1939 ).

The provisions of the election law that authorized the court to declare the nomination or election of an officer void when the officer had violated the law, were constitutional. Creech v. Fields, 276 Ky. 359 , 124 S.W.2d 503, 1939 Ky. LEXIS 537 ( Ky. 1939 ).

All regulations of the election franchise must be reasonable, uniform and impartial. Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

This section does not limit the power of the legislature to enact reasonable regulations for the naming of candidates by political parties and groups of voters. Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

Law providing for comparative signature books and for comparison of voter’s signature with the record does not violate this section, as it is reasonable legislative regulation which does not deny voting privilege either directly or otherwise. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

The legislature, under its authority to make reasonable regulations for the exercise of voting franchise, may not so frame such regulations as to deny the voting privilege, either directly or by making exercise thereof so difficult and inconvenient as to amount to a denial. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ). See Queenan v. Russell, 339 S.W.2d 475, 1960 Ky. LEXIS 469 ( Ky. 1960 ).

15.Illegal Elections.

Where money and whiskey were used to influence voters, circuit court order was disregarded in selecting election officers, election equipment was stolen in one precinct, and in other precincts state patrolmen arrested the election officers, confiscated the ballot boxes and closed the polls, without warrant from any court, the election was not free and equal, and was void. Middleton v. Poer, 275 Ky. 401 , 121 S.W.2d 28, 1938 Ky. LEXIS 400 ( Ky. 1938 ).

Election was illegal where insufficient voting places were provided and there was insufficient notice to voters. Gill v. Board of Education, 288 Ky. 790 , 156 S.W.2d 844, 1941 Ky. LEXIS 142 ( Ky. 1941 ).

Where ballots furnished to some of precincts in one educational division, in school board election, were void because they erroneously carried names of candidates from another division, and total number of registered voters in such precincts was more than 20 per cent of the total for the educational division, the entire election was void although the votes actually cast in such precincts did not change the result of the election. Lakes v. Estridge, 294 Ky. 655 , 172 S.W.2d 454, 1943 Ky. LEXIS 509 ( Ky. 1943 ). See Hillard v. Lakes, 294 Ky. 659 , 172 S.W.2d 456, 1943 Ky. LEXIS 510 ( Ky. 1943 ).

Where two (2) candidates were running for the unexpired term for sheriff and the name of one of the candidates was placed at the foot of the column of one of the major parties under the heading “For Sheriff,” and the other’s name, he being the only independent candidate, was placed at the head of that column under the caption “For the Unexpired Term for Sheriff,” the election to fill that office was invalid because not conducted in compliance with the statute and because it was not free and equal as required by the Constitution. Davidson v. White, 307 Ky. 269 , 210 S.W.2d 943, 1948 Ky. LEXIS 726 ( Ky. 1948 ).

16.— Fraud or Inducement.

Where, if voters in a city who had been disfranchised by force, fraud, and intimidation, had all voted for the defeated candidates, the latter would have been elected by large majorities, and it was impossible to determine who was in fact elected, the entire election would be declared void. Scholl v. Bell, 125 Ky. 750 , 102 S.W. 248, 31 Ky. L. Rptr. 335 , 1907 Ky. LEXIS 328 ( Ky. 1907 ).

Election was declared void under this section due to wholesale bribery and fraud. Ford v. Hopkins, 141 Ky. 181 , 132 S.W. 542, 1910 Ky. LEXIS 448 ( Ky. 1910 ).

Where in a city election for mayor and city commissioners, the then mayor and candidate for commissioner controlled the suffrages of over 30 per cent of the voters through a secret organization with oath to obey him, having induced them to believe they were legally and morally bound, and held their registration certificates till day of election, and the returns of election indicated that the members of the organization voted as directed, there was such intimidation as to render election not free and equal, and it was void. Burns v. Lackey, 171 Ky. 21 , 186 S.W. 909, 1916 Ky. LEXIS 297 ( Ky. 1916 ).

17.— Violence.

Use of intimidation, threats, violence, or other means to drive from polls those of opposite political party constituted violation of this section. Taylor v. Neutzel, 220 Ky. 510 , 295 S.W. 873, 1927 Ky. LEXIS 575 ( Ky. 1927 ).

18.Local Option Elections.

The fact that law provided for the holding of a local option election on the same day that a school election was held, did not constitute a violation of the bill of rights, providing that all elections shall be free and equal. Throckmorton v. Commonwealth, 35 S.W. 635, 18 Ky. L. Rptr. 130 (1896).

A local option election held in an incorporated town in April, without any special registration being provided for, was void, and could not be sustained by showing that the result was not affected by omission of such registration. Early v. Rains, 121 Ky. 439 , 106 Mo. App. 684, 89 S.W. 289, 28 Ky. L. Rptr. 415 , 1905 Ky. LEXIS 224 ( Ky. 1905 ).

Where law provided for the holding of local option elections, regulated the time for holding such elections in towns, cities, districts, or precincts, and in entire counties, differentiating between counties having cities of the fourth class or larger and those not having cities within the fourth class, such classification was proper. Board of Trustees v. Scott, 125 Ky. 545 , 101 S.W. 944, 30 Ky. L. Rptr. 894 , 1907 Ky. LEXIS 313 ( Ky. 1907 ).

County unit law that provided the procedure for local option election and which made the county the unit for holding elections was not in violation of this section requiring all elections be free and equal. McAuliffe v. Helm, 157 Ky. 626 , 163 S.W. 1091, 1914 Ky. LEXIS 349 ( Ky. 1914 ).

A local option election was free and equal notwithstanding absence of a substantial number of legal voters in the armed service. Booth v. McKenzie, 302 Ky. 215 , 194 S.W.2d 63, 1946 Ky. LEXIS 609 ( Ky. 1946 ).

To defeat results of local option election, on ground that it was not free and equal within meaning of the Constitution, contestants must allege and prove that a substantial number of eligible, legal or qualified voters were wrongfully denied right to vote through no fault or cause of their own. Gross v. West, 283 S.W.2d 358, 1955 Ky. LEXIS 301 ( Ky. 1955 ).

19.Majority Vote.

Candidate could not be elected who had not received majority or plurality of votes, even though candidate with next higher number of votes became disqualified. Bogie v. Hill, 286 Ky. 732 , 151 S.W.2d 765, 1941 Ky. LEXIS 323 ( Ky. 1941 ). See McKinney v. Barker, 180 Ky. 526 , 203 S.W. 303, 1918 Ky. LEXIS 102 ( Ky. 1918 ) ( Ky. 1918 ).

20.Polls.

It is improper to have the polling places in a city dominated and controlled by the city’s police force. Scholl v. Bell, 125 Ky. 750 , 102 S.W. 248, 31 Ky. L. Rptr. 335 , 1907 Ky. LEXIS 328 ( Ky. 1907 ).

21.Precincts.

Trustees of graded school district must hold school elections in all voting precincts within district, and designation of single place for holding election was unauthorized, where number of voters was so great as to deprive a large percent of them of an opportunity to vote. Smith v. Kelly, 248 Ky. 370 , 58 S.W.2d 621, 1933 Ky. LEXIS 238 ( Ky. 1933 ).

22.Primary Elections.

This section has no application to primary elections. Montgomery v. Chelf, 118 Ky. 766 , 82 S.W. 388, 26 Ky. L. Rptr. 638 , 1904 Ky. LEXIS 100 ( Ky. 1904 ).

An act providing for primary elections which does not exclude any class of citizens from participation therein, and makes penalties for violation the same as those for violations of general election law, is not in conflict with this section declaring all elections shall be free and equal. Hodge v. Bryan, 149 Ky. 110 , 148 S.W. 21, 1912 Ky. LEXIS 595 ( Ky. 1912 ).

The word election as used in this section does not apply to primary elections, which are not in fact elections of officers but merely a means of selecting candidates, so that primary election law is not in violation of the Constitution. Hager v. Robinson, 154 Ky. 489 , 157 S.W. 1138, 1913 Ky. LEXIS 129 ( Ky. 1913 ).

Third-class city election provision to effect that it was illegal to vote for candidate who was not nominated in primary election, was not contrary to this section. Whitney v. Skinner, 194 Ky. 804 , 241 S.W. 350, 1922 Ky. LEXIS 259 ( Ky. 1922 ).

This section does not apply to primary elections, but applies only to general elections. Davis v. Stahl, 287 Ky. 629 , 154 S.W.2d 736, 1941 Ky. LEXIS 607 ( Ky. 1941 ).

This section was not violated by a statute allowing only a candidate who was voted for at a primary election to contest that election. Davis v. Stahl, 287 Ky. 629 , 154 S.W.2d 736, 1941 Ky. LEXIS 607 ( Ky. 1941 ).

23.Registration.

An act providing only one day in July, 60 days before the general election each year, for registration to be eligible to vote in next election, violated this section. Perkins v. Lucas, 197 Ky. 1 , 246 S.W. 150, 1922 Ky. LEXIS 633 ( Ky. 1 922 ).

In the absence of any showing that a sufficient number of eligible voters, to have changed the result of the election, were prevented from registering and voting by a slightly earlier than usual closing on a Saturday afternoon, there was no justification for setting aside an election on the ground this section had been violated. Mutters v. Allen, 296 Ky. 113 , 176 S.W.2d 255, 1943 Ky. LEXIS 114 ( Ky. 1943 ).

Where four (4) voters were not permitted to vote in an election because of a clerical error which registered them in the wrong precinct, but they could have voted had they obtained authorization and certification from the election commission on election day, such voters were not denied their rights under this provision. Kirk v. Harmon, 557 S.W.2d 220, 1977 Ky. App. LEXIS 831 (Ky. Ct. App. 1977).

24.— Purgation.

Law providing procedure for registration and purgation of voters did not violate this section on ground that registration books are required to be closed for an unnecessary and unreasonable length of time each year, or on the ground that it does not give a challenged voter ample opportunity to be heard, or that it deprives him of the right of suffrage without due process of law. Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ).

Improper purgation of registration list of voters does not settle issue of free and equal election, since registration is only one qualification of legal voter. Gross v. West, 283 S.W.2d 358, 1955 Ky. LEXIS 301 ( Ky. 1955 ).

25.Right to Vote.

A free and equal election is one at which every person entitled to vote may do so if he desires, and a disbarment of a substantial number of legal voters is necessary to invalidate an election, and if from any cause they are denied the right to vote, the election is not free and equal in the meaning of this section. Wallbrecht v. Ingram, 164 Ky. 463 , 175 S.W. 1022, 1915 Ky. LEXIS 411 (Ky.), writ of error dismissed, 239 U.S. 625, 36 S. Ct. 162, 60 L. Ed. 473, 1915 U.S. LEXIS 1407 (U.S. 1915).

Statute providing for election of county school superintendent by voters outside cities of first four (4) classes violated this section. Robertson v. Hopkins County, 247 Ky. 129 , 56 S.W.2d 700, 1933 Ky. LEXIS 349 ( Ky. 1933 ).

Under this section an election is not free and equal if a substantial number or percentage of qualified electors are deprived of their right to vote. Johnson v. May, 305 Ky. 292 , 203 S.W.2d 37, 1947 Ky. LEXIS 785 ( Ky. 1947 ).

Election is free and equal within meaning of this section only when it is public and open to all qualified electors alike, when every voter has the same right as any other voter, when each voter under the law has right to cast his ballot and have it honestly counted, when regulation of right to exercise franchise does not deny the franchise itself or make it so difficult as to amount to a denial, and when no constitutional right of qualified elector is subverted or denied. Queenan v. Russell, 339 S.W.2d 475, 1960 Ky. LEXIS 469 ( Ky. 1960 ). See Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

26.Voting Machines.

The fact that voting machines are used in some precincts and not in others does not violate the requirement that elections be free and equal. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

The provision of former law for assistance to illiterate or disabled voters in operating the voting machine did not violate this section. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

Law which permits the use of voting machines in some precincts of a county and voting by hand in other precincts of the county does not violate this section. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

27.Election Contests.

A voter has no right to keep from office a person elected to the office of alderman, even if the election was illegal, and any contest of such election would, by statute, be settled by the other aldermen, not by the courts. Witten v. Sternberg, 475 S.W.2d 496, 1971 Ky. LEXIS 73 ( Ky. 1971 ).

Cited:

De Haven v. Bowmer, 125 Ky. 800 , 31 Ky. L. Rptr. 416 , 102 S.W. 306, 1907 Ky. LEXIS 336 ( Ky. 1907 ); Skain v. Milward, 138 Ky. 200 , 127 S.W. 773, 1910 Ky. LEXIS 61 ( Ky. 1910 ); Morgan v. Goode, 151 Ky. 284 , 152 S.W. 584, 1912 Ky. LEXIS 820 ( Ky. 1912 ); Vaughan v. Roberts, 192 Ky. 364 , 233 S.W. 733, 1921 Ky. LEXIS 56 ( Ky. 1921 ); Allen v. Cromwell, 203 Ky. 836 , 263 S.W. 356, 1924 Ky. LEXIS 1017 ( Ky. 1924 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Karloftis v. Helton, 297 Ky. 463 , 178 S.W.2d 959, 1944 Ky. LEXIS 665 ( Ky. 1944 ); Cantrell v. Adams, 298 Ky. 845 , 183 S.W.2d 492, 1944 Ky. LEXIS 935 ( Ky. 1944 ); Simpson v. Hughes, 299 Ky. 758 , 187 S.W.2d 440 (1945); Hawkins v. Auxier, 311 Ky. 186 , 223 S.W.2d 753, 1949 Ky. LEXIS 1095 ( Ky. 1949 ); Stephens v. Hicks, 401 S.W.2d 75, 1966 Ky. LEXIS 405 ( Ky. 1966 ); Arnett v. Hensley, 425 S.W.2d 546, 1968 Ky. LEXIS 418 ( Ky. 1968 ); Wood v. Kirby, 566 S.W.2d 751, 1978 Ky. LEXIS 364 ( Ky. 1978 ); Louisville Shopping Center, Inc. v. St. Matthews, 635 S.W.2d 307, 1982 Ky. LEXIS 266 ( Ky. 1982 ); Merritt v. Campbellsville, 678 S.W.2d 788, 1984 Ky. App. LEXIS 625 (Ky. Ct. App. 1984); Commonwealth v. Foley, 798 S.W.2d 947, 1990 Ky. LEXIS 121 ( Ky. 1990 ).

Opinions of Attorney General.

When the 31st of December falls on Sunday and the following day on which county officers are to take office for the ensuing term is a legal holiday, the county officers may be sworn in and execute bond when required on or before the first Monday in January, a legal holiday. OAG 61-886 .

In the absence of any constitutional authority, the general assembly may not disqualify persons from being elected by a write-in vote. OAG 79-488 .

A statement by a school board candidate that he prefers a certain individual to serve as superintendent is protected by the first amendment of the United States Constitution and Ky. Const., § 1. OAG 92-156 .

Research References and Practice Aids

Cross-References.

Elections, Const., §§ 145-155; KRS chs. 116 to 121.

§ 7. Right of trial by jury.

The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.

NOTES TO DECISIONS

Analysis

1.In General.

The ancient mode of trial by jury means trial by jury according to the requirements of the common law. Branham v. Commonwealth, 209 Ky. 734 , 273 S.W. 489, 1925 Ky. LEXIS 591 ( Ky. 1925 ), overruled, Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

There is no right in the Kentucky Constitution which grants a defendant the unqualified right to be tried by a judge without the intervention of a jury. Hayes v. Commonwealth, 470 S.W.2d 601, 1971 Ky. LEXIS 278 ( Ky. 1971 ).

Where the offense with which defendant was charged was not one which was required to be tried by a jury at common law, the court did not err by failing to conduct a jury trial. Donta v. Commonwealth, 858 S.W.2d 719, 1993 Ky. App. LEXIS 95 (Ky. Ct. App. 1993).

The constitutional term “inviolate” means that the right to trial by jury is unassailable, and legislation and civil rules of practice shall be construed strictly and observed vigilantly in favor of the right and is not to be abrogated arbitrarily by the courts; thus the constitutional right to a jury trial cannot be annulled, obstructed, impaired, or restricted by legislative or judicial action. Steelvest, Inc. v. Scansteel Serv. Ctr., 908 S.W.2d 104, 1995 Ky. LEXIS 97 ( Ky. 1995 ).

Proper use of summary judgments, directed verdicts, or other forms of disposition prior to submission to a jury do not violate this section. Godbey v. University Hosp. of the Albert B. Chandler Med. Ctr., 975 S.W.2d 104, 1998 Ky. App. LEXIS 69 (Ky. Ct. App. 1998).

The right to a jury trial under either Ky. Const. § 7 or Ky. Const. § 242 is fundamental, but neither is more so than the other. Louisville & Jefferson County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

Practice of eschewing judicial comment is not a constitutional requirement. Walker v. Commonwealth, 349 S.W.3d 307, 2011 Ky. LEXIS 135 ( Ky. 2011 ).

2.Advisory Jury.

Since right to jury trial was preserved by Civil Rules, legal action for recovery of debt was erroneously tried with advisory jury only, although such error was not prejudicial. Brock v. Farmer, 291 S.W.2d 531, 1956 Ky. LEXIS 379 ( Ky. 1956 ).

3.Assignments for Creditors.

The Constitution secures to a litigant the right of trial by jury only in cases where such right existed at common law, and in proceedings to compel an assignee for the benefit of creditors to settle his accounts, the assignee is not entitled to a trial by jury of the questions raised by the pleadings. Comingor v. Louisville Trust Co., 128 Ky. 697 , 108 S.W. 950, 111 S.W. 681, 33 Ky. L. Rptr. 53 , 33 Ky. L. Rptr. 884 , 1908 Ky. LEXIS 90 (Ky. Ct. App. 1908).

4.Arbitration.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the buyers’ right to a jury trial in Ky. Const. § 7 because Ky. Const. § 7 contemplated that there could be exceptions to the right, and Ky. Const. § 250, providing for the establishment of a system of arbitration, which, by definition, did not include a trial by jury, was such an exception. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

5.Contempt.

Jury trial in contempt proceedings is constitutionally mandated only where “serious” punishment is imposed and where a $10,000 fine was imposed on a union for striking in violation of a restraining order, such penalty was not “serious” enough to require a jury trial. International Asso. of Firefighters v. Lexington-Fayette Urban County Government, 555 S.W.2d 258, 1977 Ky. LEXIS 502 ( Ky. 1977 ).

In a contempt action where the factual situation is disputed, imprisonment beyond six (6) months is “serious” punishment requiring jury trial, but whether a fine is “serious” must be determined in the particular context rather than by a set figure. International Asso. of Firefighters v. Lexington-Fayette Urban County Government, 555 S.W.2d 258, 1977 Ky. LEXIS 502 ( Ky. 1977 ).

6.Court Orders.

Law under which failure to comply with child support order from divorce judgment constituted a felony was unconstitutional, since it in effect made equivalent of contempt a felony without right of defense or trial by jury. Commonwealth v. O'Harrah, 262 S.W.2d 385, 1953 Ky. LEXIS 1096 ( Ky. 1953 ).

7.Discrimination Cases.

Because the right to be free from discrimination based on race, color, religion, national origin, sex, and age is a creature of statute and not a common-law tort, it does not fall within the scope of the right to trial by jury preserved by U.S. Const., Amend. 7 and by this section. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ).

8.Equity.

Transfer of case to equity where issues were cognizable in equity was not violative of this section. O'Connor v. Henderson Bridge Co., 95 Ky. 633 , 27 S.W. 251, 16 Ky. L. Rptr. 244 , 1894 Ky. LEXIS 78 ( Ky. 1894 ).

In an action purely cognizable in equity, in which no legal issue arises, it is within the sound discretion of the chancellor whether he will impanel a jury to try the issue of fact on which the determination of the equitable issue depends, and his action in refusing to do so will not be disturbed unless that discretion has been abused. Reese's Adm'r v. Youtsey, 113 Ky. 839 , 69 S.W. 708, 24 Ky. L. Rptr. 603 , 1902 Ky. LEXIS 110 ( Ky. 1902 ).

Where case was properly transferred to equity docket, this section was not violated. Manion v. Manion, 120 Ky. 1 , 85 S.W. 197, 27 Ky. L. Rptr. 400 , 1905 Ky. LEXIS 65 ( Ky. 1 905 ).

This section does not guarantee the right to a jury trial of issues of fact arising in every equity case, but in those cases in which, at common law, a litigant was entitled to a jury trial and in cases of purely equitable cognizance a trial by jury is not a matter of right, but is within the discretion of the chancellor. Rieger v. Schulte & Eicher, 151 Ky. 129 , 151 S.W. 395, 1912 Ky. LEXIS 778 ( Ky. 1912 ). See Scott v. Kirtley, 166 Ky. 727 , 179 S.W. 825, 1915 Ky. LEXIS 762 ( Ky. 1915 ); Stearns Coal & Lumber Co. v. Commonwealth, 167 Ky. 51 , 179 S.W. 1080, 1915 Ky. LEXIS 799 ( Ky. 1915 ).

Constitutional right to jury trial did not apply to proceeding in equity. Wilson v. Carrollton Tobacco Warehouse Co., 182 Ky. 433 , 206 S.W. 618, 1918 Ky. LEXIS 376 ( Ky. 1918 ). See Greenway v. Irvine's Ex'r, 234 Ky. 597 , 28 S.W.2d 760, 1929 Ky. LEXIS 457 ( Ky. 1929 ); Commercial Union Assurance Co. v. Howard, 256 Ky. 363 , 76 S.W.2d 246, 1934 Ky. LEXIS 422 ( Ky. 1934 ).

Defendant is not entitled to trial by jury in proceedings to abate a disorderly house. King v. Commonwealth, 194 Ky. 143 , 238 S.W. 373, 1922 Ky. LEXIS 119 ( Ky. 1922 ).

Trial judge’s denial of demand for jury trial did not violate this section where action was properly cognizable in equity rather than at common law. McGuire v. Hammond, 405 S.W.2d 191, 1966 Ky. LEXIS 245 ( Ky. 1966 ), overruled, Steelvest, Inc. v. Scansteel Serv. Ctr., 908 S.W.2d 104, 1995 Ky. LEXIS 97 ( Ky. 1995 ).

9.Habeas Corpus.

A writ of habeas corpus from a federal court cannot be made to perform the office of a writ of error to review a judgment of conviction in a state court in which it had jurisdiction, even where it is claimed, as in this case, that the jury was packed and defendant was denied a fair trial, as his remedy is appeal and writ of error from Supreme Court of United States if his claim on appeal be decided adversely. Ex parte Powers, 129 F. 985, 1904 U.S. Dist. LEXIS 327 (D. Ky. 1904 ).

9.5.Impartial Jury.

Defendant was denied representation at a critical stage of his trial because the trial court engaged in an ex parte discussion with a juror who had been offered a bribe, and that amounted to structural error as it denied defendant his right to an impartial jury. Eversole v. Commonwealth, 600 S.W.3d 209, 2020 Ky. LEXIS 121 ( Ky. 2020 ).

10.Incompetency.

Under this section a person cannot be declared incompetent and have his property taken out of his hands, or be placed in confinement, without the intervention of a jury and the verdict of a jury declaring him to be non sui juris. Hager v. Pacific Mut. Life Ins. Co., 43 F. Supp. 22, 1942 U.S. Dist. LEXIS 3145 (D. Ky. 1942 ).

11.Issues.

Although as a general rule it is the pleadings rather than the proof which are determinative of whether legal or equitable issues are involved, in exceptional cases pretrial proceedings, or the actual trial of a case, may develop issues which should be resolved by the judge rather than the jury. Brandenburg v. Burns, 451 S.W.2d 413, 1969 Ky. LEXIS 17 ( Ky. 1969 ).

The fact that a number of items are involved does not convert a legal issue into an equitable one for purposes of entitlement to a jury trial. Brandenburg v. Burns, 451 S.W.2d 413, 1969 Ky. LEXIS 17 ( Ky. 1969 ).

Where both legal and equitable issues are involved in a lawsuit, the legal issues should be tried by a jury if proper demand is made. Brandenburg v. Burns, 451 S.W.2d 413, 1969 Ky. LEXIS 17 ( Ky. 1969 ).

Where the principal issues were legal in nature but a lien was asserted in the suit, the fact that incidental relief by way of the enforcement of a lien was involved did not convert the whole action into an equitable one and appellants were entitled to a jury trial on the legal issues. Brandenburg v. Burns, 451 S.W.2d 413, 1969 Ky. LEXIS 17 ( Ky. 1969 ).

12.— Admissibility of Confessions.

Submission of question of admissibility of confession to trial judge rather than jury was not violative of this section. Karl v. Commonwealth, 288 S.W.2d 628, 1956 Ky. LEXIS 266 ( Ky. 1956 ).

13.— Damages.

Issue of damages in legal malice case was question for jury determination. John Brenner Brewing Co. v. McGill, 62 S.W. 722, 23 Ky. L. Rptr. 212 (1901).

Subdivision (3)(h) of KRS 344.230 , which allows the State Commission on Human Rights to award compensatory damages for embarrassment and humiliation in discrimination cases, did not unconstitutionally deprive a defendant employer in a sex discrimination action of his right to a jury trial since the right to be free of sex discrimination is statutory and, therefore, is not within the scope of the right preserved by this section. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ).

14.— Fact.

The fact that statute which empowers the circuit court to investigate and adjudge whether facts exist to authorize an ordinance of a town of the sixth class to enlarge the boundaries of the town, does not provide for a jury trial, renders it violative of this section. Lewis v. Brandenburg, 105 Ky. 14 , 47 S.W. 862, 20 Ky. L. Rptr. 1011 , 1898 Ky. LEXIS 238 ( Ky. 1898 ).

Where action was brought at common law and involved damages dependent upon issues of fact, and answer presented no equitable defense, plaintiffs had constitutional right to trial by jury. Republic Coal Co. v. Ward, 191 Ky. 368 , 230 S.W. 295, 1921 Ky. LEXIS 315 ( Ky. 1921 ).

Provision in KRS 81.110 (now KRS 81A.020 ) that issue of annexation should be tried by jury did not give protestants of annexation the absolute right to have jury decide the question, in light of a finding by the court that protestants had not presented sufficient evidence to take the case to the jury, and peremptory instruction for annexation was not a violation of the protestants’ constitutional rights to jury trial. Masonic Widows & Orphans Home & Infirmary v. Louisville, 309 Ky. 532 , 217 S.W.2d 815, 1948 Ky. LEXIS 1081 ( Ky. 1948 ).

15.— Guilt.

Constitutional rights to trial by jury extends to trial of issue of guilt or innocence where a plea of not guilty has been entered, and does not extend to fixing of penalty. Williams v. Jones, 338 S.W.2d 693, 1960 Ky. LEXIS 405 ( Ky. 1960 ), cert. denied, 365 U.S. 847, 81 S. Ct. 808, 5 L. Ed. 2d 811, 1961 U.S. LEXIS 1540 (U.S. 1961).

16.— Law.

Where plaintiff’s rights depended on decision of legal as opposed to equitable issues, it was error to refuse to transfer case from equity to common-law docket to be tried by jury. Carder v. Weisenburgh, 95 Ky. 135 , 23 S.W. 964, 15 Ky. L. Rptr. 497 , 1893 Ky. LEXIS 135 ( Ky. 1893 ).

Landowner is not entitled to a jury trial of question of whether a proposed drainage district should be established under authorizing statute. Handley v. Graham, 187 Ky. 316 , 219 S.W. 417, 1920 Ky. LEXIS 121 ( Ky. 1920 ).

The 1942 amendment to KRS 422.110 providing that the trial judge should determine the admissibility of a confession rather than the jury is not a violation of this section for it was a return to and not a departure from the ancient mode of trial by jury. Bass v. Commonwealth, 296 Ky. 426 , 177 S.W.2d 386, 1944 Ky. LEXIS 1069 (Ky.), cert. denied, 323 U.S. 745, 65 S. Ct. 64, 89 L. Ed. 596, 1944 U.S. LEXIS 488 (U.S. 1944).

17.— Negligence.

Negligence issue required jury determination under this section. Chesapeake & O. R. Co. v. Davis, 119 Ky. 641 , 60 S.W. 14, 22 Ky. L. Rptr. 1156 , 1900 Ky. LEXIS 115 ( Ky. 1900 ).

18.— Piercing Corporate Veil.

Limited liability company (LLC) was not entitled to a jury trial under Ky. Const. § 7 and CR 39.01(b) on the issue of whether to pierce the corporate veil in order to allow the LLC to collect from the shareholders on a default judgment as whether to pierce the corporate veil under the instrumentality theory involved an equitable remedy. Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 2009 Ky. App. LEXIS 112 (Ky. Ct. App. 2009).

19.Jurors.

The Court of Appeals cannot reverse a conviction in a criminal case because in the court’s order for summoning jurors from another county it was not required that they should be drawn from the jury wheel of that county, but only that they be summoned from the county at large by the sheriff of the county of trial. Howard v. Commonwealth, 118 Ky. 1 , 80 S.W. 211, 81 S.W. 704, 25 Ky. L. Rptr. 2213 , 26 Ky. L. Rptr. 363 , 1904 Ky. LEXIS 3 ( Ky. 1 904 ), aff'd, 200 U.S. 164, 26 S. Ct. 189, 50 L. Ed. 421, 1906 U.S. LEXIS 1464 (U.S. 1906).

A person who is put on his trial in a court presided over by a judge and before a jury of 12 men who agree on a verdict has a trial by jury as guaranteed by this section, and he may not complain because the qualifications of the jurors or the manner of their selection differ from what it was at common law or is changed from time to time to make the system more efficient. Wendling v. Commonwealth, 143 Ky. 587 , 137 S.W. 205, 1911 Ky. LEXIS 474 ( Ky. 1911 ).

The right to trial by a jury de medietate linguae is not guaranteed by this section. Wendling v. Commonwealth, 143 Ky. 587 , 137 S.W. 205, 1911 Ky. LEXIS 474 ( Ky. 1911 ). See Commonwealth of Kentucky v. Wendling, 182 F. 140, 1910 U.S. App. LEXIS 5635 (C.C.D. Ky. 1910 ).

This section is not violated when a jury is impaneled from another county. Deaton v. Commonwealth, 157 Ky. 308 , 163 S.W. 204, 1914 Ky. LEXIS 287 ( Ky. 1914 ).

Objection to verdict in criminal case on ground that one of jurors was a woman, the claim being that the ancient mode of trial by jury did not permit women to serve, could not be passed on by Court of Appeals. McLaughlin v. Commonwealth, 192 Ky. 206 , 232 S.W. 628, 1921 Ky. LEXIS 40 ( Ky. 1921 ).

Statute authorizing six (6) man juries in prosecutions in quarterly and justice’s courts is constitutional under this section and Ky. Const., § 248. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ). See Cooke v. Commonwealth, 199 Ky. 111 , 250 S.W. 802, 1923 Ky. LEXIS 771 ( Ky. 1923 ).

The fact that one of jurors selected from a special venire to try a homicide case was not a resident of the county did not violate defendant’s constitutional rights. Baxter v. Commonwealth, 292 Ky. 204 , 166 S.W.2d 24, 1942 Ky. LEXIS 45 ( Ky. 1942 ).

The evidence presented by defendant in support of his motion for mistrial was nothing more than speculation that a juror knew defendant. Not only did defendant fail to establish that the juror knew defendant, but he failed to show how if at all the juror knew defendant. There was nothing in the record to indicate there was any juror bias to support defendant’s claim that the court’s ruling was clearly erroneous in denying the motion for mistrial. Key v. Commonwealth, 840 S.W.2d 827, 1992 Ky. App. LEXIS 126 (Ky. Ct. App. 1992).

Striking for cause of three (3) jurors because of their inability to set aside their views about the death penalty did not deprive murder defendant of his right to a fair trial. Mabe v. Commonwealth, 884 S.W.2d 668, 1994 Ky. LEXIS 98 ( Ky. 1994 ).

In a capital murder case, defendant’s due process rights were not violated by the failure of the court to excuse a juror for cause where she indicated her willingness to consider a minimum sentence; the juror indicated that she would have to listen to the evidence in the case and expressed her willingness not to automatically vote for the death penalty and to consider the full range of penalties. Epperson v. Commonwealth, 197 S.W.3d 46, 2006 Ky. LEXIS 49 ( Ky. 2006 ), cert. denied, 549 U.S. 1290, 127 S. Ct. 1840, 167 L. Ed. 2d 337, 2007 U.S. LEXIS 3185 (U.S. 2007).

Trial court did not abuse its discretion by not declaring a mistrial during a trial’s guilt phase where the juror was unaware that he was one of defendant’s former robbery victims until the trial’s sentencing phase, and since neither the juror, the parties, nor the court were aware of the bias, defendant’s right to a fair trial was not impeded. Commonwealth v. Douglas, 553 S.W.3d 795, 2018 Ky. LEXIS 294 ( Ky. 2018 ).

Trial court did not err by failing to remove a juror because, despite defendant’s argument to the contrary, the juror adamantly told the trial court that she did not know defendant and was not biased, and she denied the claim of the mother of defendant’s child that the two of them shared a half-sister. Torrence v. Commonwealth, 603 S.W.3d 214, 2020 Ky. LEXIS 12 (Ky.), cert. denied, 141 S. Ct. 956, 208 L. Ed. 2d 494, 2020 U.S. LEXIS 6071 (U.S. 2020).

20.Juvenile Courts.

The juvenile court law was not unconstitutional as depriving a committed delinquent or dependent child of his liberty without due process of law, because no jury trial was provided for. Marlow v. Commonwealth, 142 Ky. 106 , 133 S.W. 1137, 1911 Ky. LEXIS 135 ( Ky. 1911 ).

21.Minor Offenses.

Minor offenses may be tried by a police judge without a jury, as such offenses were not, either at the time the adoption of the Constitution or at common law, required to be tried by a jury. Mt. Sterling v. Holly, 57 S.W. 491, 22 Ky. L. Rptr. 358 (1900).

Statute empowering police court to try certain offenses without jury, but limiting imprisonment to 50 days and fine to $100, is not unconstitutional. Houk v. Starck, 251 Ky. 276 , 64 S.W.2d 565, 1933 Ky. LEXIS 833 ( Ky. 1933 ).

22.Pleadings.
23.— Guilty.

This section, guaranteeing trial by jury, applies only to the issue of guilt or innocence under a plea of not guilty, and a plea of guilty dispenses with the necessity of the court submitting to the jury either the issue of guilt or innocence or the determination of the amount of punishment to be inflicted. Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

Right under this section did not apply where defendant pleaded guilty. Allison v. Gray, 256 F.2d 763, 1958 U.S. App. LEXIS 4409 (6th Cir. Ky. 1958 ).

24.— Not Guilty.

The court has no right to direct a jury to find defendant guilty where his plea is not guilty, though the evidence of his guilt may be convincing and wholly uncontradicted. Bardin v. Commonwealth, 191 Ky. 651 , 231 S.W. 208, 1921 Ky. LEXIS 364 ( Ky. 1921 ).

The constitutional right of trial by jury applies only to the issue of guilt or innocence under a plea of not guilty. Lee v. Buchanan, 264 S.W.2d 661, 1954 Ky. LEXIS 683 ( Ky. 1954 ).

25.Sentencing.

Law providing for fixing of punishment by judge did not violate this section. Wilson v. Commonwealth, 141 Ky. 341 , 132 S.W. 557, 1910 Ky. LEXIS 456 ( Ky. 1910 ).

This section did not apply to determination of punishment, and was not violated by instruction to jury as to mandatory sentence upon defendant’s plea of guilty. Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

Where defendant pleaded guilty, fact that penalty was fixed by jury of ten (10) rather than 12 was not violative of this section. Allison v. Gray, 296 S.W.2d 735, 1956 Ky. LEXIS 233 ( Ky. 1956 ), cert. denied, 353 U.S. 914, 77 S. Ct. 673, 1 L. Ed. 2d 668, 1957 U.S. LEXIS 1178 (U.S. 1957), overruled, Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

Requiring a capital defendant to prove to a trial court by a preponderance of the evidence that he or she is mentally retarded, for purposes of a motion to prohibit execution of the death sentence, does not violate a defendant’s rights under the federal or state constitutions. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

26.Verdict.

A verdict cannot be successfully attacked upon the ground that the jurors could have believed either of two (2) theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense. Wells v. Commonwealth, 561 S.W.2d 85, 1978 Ky. LEXIS 314 ( Ky. 1978 ).

27.— Directed.

The court had no right, in a prosecution for an offense punishable by a fine of $500, in which defendant pleaded a former conviction, to instruct the jury to find the defendant guilty. Lucas v. Commonwealth, 118 Ky. 818 , 82 S.W. 440, 26 Ky. L. Rptr. 740 , 1904 Ky. LEXIS 111 ( Ky. 1904 ).

28.— Judgment Notwithstanding.

Court decision that as matter of law there was no question for jury did not usurp right to jury trial, and thus appellate decision ordering judgment notwithstanding verdict was not violative of this section. Copley v. Craft, 341 S.W.2d 70, 1960 Ky. LEXIS 66 ( Ky. 1960 ).

29.Unanimous Verdict.

Mere reluctance on the part of a juror to impose punishment does not invalidate the verdict if the juror announces his assent to the verdict, but where juror states that verdict was not with his free consent the verdict must be rejected. Cannon v. Commonwealth, 291 Ky. 50 , 163 S.W.2d 15, 1942 Ky. LEXIS 165 ( Ky. 1942 ).

Where one of jurors, on poll of jury, said “It is not my verdict, I did agree to it, but I didn’t want to do it, it was against my will,” the verdict was not unanimous and the court should not have accepted it. Cannon v. Commonwealth, 291 Ky. 50 , 163 S.W.2d 15, 1942 Ky. LEXIS 165 ( Ky. 1942 ).

Where member of jury stated in open court that he was forced to sign the verdict, unanimity of the jury as required by Const., § 7 and rule regarding procedure for polling of jury was violated. Coomer v. Commonwealth, 238 S.W.2d 161, 1951 Ky. LEXIS 809 ( Ky. 1951 ).

Definitions of position of authority and position of special trust are not mutually exclusive, and rather, one defines the other; the jury was not presented with alternate theories of guilt in this first-degree sexual abuse case and defendant’s unanimity argument failed. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

Defendant's right to an unanimous verdict was not violated because the evidence consisted of only one criminal act on which liability could be found for robbery and one criminal act on which liability could be found for burglary as the Commonwealth presented evidence that defendant assisted in the planning and execution of the robbery; the Commonwealth clearly supported alternative theories that defendant acted as either a principle or an accomplice as to both the robbery and burglary charges; and the instructions were not so confusing or misleading as to lead the jury to believe that more than one criminal act was committed and that it could find guilt based on either one. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

Robbery instructions mention of three types of personal property did not create a unanimity error because the jury did not have to unanimously find what specific property was taken from a victim. Brown v. Commonwealth, 553 S.W.3d 826, 2018 Ky. LEXIS 283 ( Ky. 2018 ).

30.— —Effect of Jury Instructions.

Where it was clearly unreasonable from the evidence for the jury to believe that the defendant’s conduct was anything other than intentional, a jury instruction permitting the defendant to be found guilty of murder under alternate theories of either intent or wantonness denied him the right to a unanimous verdict under this section. Hayes v. Commonwealth, 625 S.W.2d 583, 1981 Ky. LEXIS 307 ( Ky. 1981 ).

Jury instruction that defendant could be convicted of murder if he caused victim’s death “intentionally” or “wantonly . . . . . under circumstances manifesting an extreme indifference to human life,” did not deprive defendant of his right to a unanimous verdict as guaranteed by this section, or his right to due process of law since, for although defendant complained that some jurors might believe “intentionally” and some “wantonly,” under either theory, “intentional” or “wanton,” “murder is a capital offense,” KRS 507.020(2); the argument that this form violates the unanimous verdict requirement is only viable in the case where one theory is not supported by the evidence, and where there was evidence from which the jurors could infer both an intentional act and wanton murder, the judge properly instructed the jury in this respect. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

Verdict convicting defendant of drug trafficking was not unanimous in violation of Ky. Const. §§ 2, 7, 11 and RCr 9.82(1), because the trial court erroneously instructed the jury regarding intent to manufacture or dispense drugs, where there was insufficient evidence to establish this. Commonwealth v. Whitmore, 92 S.W.3d 76, 2002 Ky. LEXIS 231 ( Ky. 2002 ).

Where defendant claimed he was denied a unanimous verdict by an instruction regarding drug trafficking that included multiple theories, one of which was not supported by the evidence, the claim was not reviewable because it had not been raised below and there was no palpable error under RCr 10.26, the evidence having been more than sufficient to convict him under one of the theories set out in the instruction: possessing cocaine with the intent to sell it. Clay v. Commonwealth, 2007 Ky. App. LEXIS 14 (Ky. Ct. App. Jan. 12, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 414 (Ky. Ct. App. Jan. 12, 2007).

In a prosecution for multiple counts of sexual abuse, rape, and sodomy, defendant was deprived of a unanimous verdict under Ky. Const. § 7 and RCr 9.82 because all of the jury instructions on each offense were verbatim. When the evidence is sufficient to support multiple counts of the same offense, the jury instructions must be tailored to the testimony in order to differentiate each count from the others. Bell v. Commonwealth, 245 S.W.3d 738, 2008 Ky. LEXIS 38 (Ky.), overruled in part, Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ).

Defendant’s substantial rights were violated when the trial court gave instructions to the jury in a case where defendant had sex with an underage girl multiple times that did not separate the multiple charges based on the evidence, and, thus, defendant was entitled to a new trial on all charges. Palpable error pursuant to RCr 10.26 occurred because there could not be certainty about which incidents the jury unanimously found defendant guilty on, and jury unanimity was required pursuant to Ky. Const. § 7. Miller v. Commonwealth, 283 S.W.3d 690, 2009 Ky. LEXIS 97 ( Ky. 2009 ).

Trial court was not required to include any identifying evidentiary detail in instructions in which a defendant was charged with only one count of an offense; defendant was not charged with the same offense multiple times, but rather, he was charged with one count of rape, one count of sodomy, and one count of incest, and the trial court did not err in its instruction to the jury regarding unanimity. Applegate v. Commonwealth, 299 S.W.3d 266, 2009 Ky. LEXIS 244 ( Ky. 2009 ).

In a prosecution for trafficking in cocaine in which the Commonwealth’s sole theory of guilt was that the defendant possessed cocaine with the intent to sell it, jury instructions denied the defendant a unanimous verdict where the court instructed the jury that it was to find the defendant guilty if he knowingly possessed cocaine with the intent to traffic in it and also defined trafficking to mean the manufacture, distribution, dispensation, sale, or transfer of a controlled substance; such instructions allowed the jury to convict the defendant for conduct other than the sale of cocaine and also allowed the jury to convict the defendant on different theories of guilt. Burnett v. Commonwealth, 31 S.W.3d 878, 2000 Ky. LEXIS 146 ( Ky. 2000 ), overruled in part, Travis v. Commonwealth, 327 S.W.3d 456, 2010 Ky. LEXIS 296 ( Ky. 2010 ).

Jury instruction for use of a minor under the age of 18 in a sexual performance as to defendant’s niece denied him a unanimous verdict because it failed to differentiate factually between the alleged instances of sexual abuse; the instruction allowed the jury to convict him of one crime based on two separate and distinct criminal acts that violated the same statute. Kingrey v. Commonwealth, 396 S.W.3d 824, 2013 Ky. LEXIS 85 ( Ky. 2013 ).

General jury verdict based on an instruction including two or more separate instances of a criminal offense, whether explicitly stated in the instruction or based on the proof - violates the requirement of a unanimous verdict. Johnson v. Commonwealth, 405 S.W.3d 439, 2013 Ky. LEXIS 92 ( Ky. 2013 ).

In a child abuse case, defendant’s right to a unanimous verdict was violated because the jury instruction did not specify which of the leg fractures the jury should have considered in determining whether to convict defendant, and that lack of specificity presented a scenario whereby some jurors might have believed that she caused the first fracture, while others believed that she caused the second fracture. Johnson v. Commonwealth, 405 S.W.3d 439, 2013 Ky. LEXIS 92 ( Ky. 2013 ).

Due to error in the jury instruction, it was uncertain whether the jury convicted defendant of Class A felony incest for acts occurring before the amendment of the incest statute, after its amendment but before the victim turned twelve, or after the victim turned twelve. Thus, it could not be said that the jury’s verdict was unanimous. Rodriguez v. Commonwealth, 396 S.W.3d 916, 2013 Ky. LEXIS 98 ( Ky. 2013 ).

Defendant’s conviction for class A felony incest was reversed because defendant was denied the right to a unanimous verdict, as (1) guilt phase jury instructions did not require the jury to find the victim’s age at the time of the crime, so defendant could be convicted, under the instructions given, of class A felony incest when defendant could only be convicted of class C felony incest, due to a statutory amendment, or of class B felony incest, if the crime occurred after the victim turned 12. Rodriguez v. Commonwealth, 2013 Ky. LEXIS 390 (Ky. Apr. 25, 2013).

Instruction in appellant’s first-degree assault trial permitted the jury to find that appellant acted intentionally, wantonly, or recklessly, for purposes of KRS 501.020 , and counsel was adamant that he did not believe the jury had to distinguish the specific state of mind under which the jury found appellant acted; thus, even if the instruction was erroneous and prevented appellant from receiving a unanimous verdict, case law precluded further analysis due to counsel’s waiver of the argument. Moran v. Commonwealth, 399 S.W.3d 35, 2013 Ky. App. LEXIS 71 (Ky. Ct. App. 2013).

Pursuant to Ky. R. Crim. P. 10.26, defendant's sexual abuse and sodomy convictions were reversed where a victim's testimony described a generalized, nonspecific and undifferentiated continuing course of conduct of sexual misconduct perpetrated by defendant, the jury instructions lacked any distinguishing descriptions that fairly apprised the jury of which criminal episode it was charged to consider, and the error was jurisprudentially intolerable it violated the Ky. Const. § 7 right to a unanimous verdict. Ruiz v. Commonwealth, 471 S.W.3d 675, 2015 Ky. LEXIS 1620 ( Ky. 2015 ), modified, 2015 Ky. LEXIS 2002 (Ky. Oct. 29, 2015).

Defendant's sodomy conviction based upon the victim's oral contact with his penis was reversed where the jury instructions did not provide any specifics about the events surrounding the charged conduct. Sheets v. Commonwealth, 495 S.W.3d 654, 2016 Ky. LEXIS 319 ( Ky. 2016 ).

Jury instructions did not violate appellant's right to a unanimous verdict where the instructions identified singularly distinctive circumstances associated with each of the individual events underlying each count. Elam v. Commonwealth, 500 S.W.3d 818, 2016 Ky. LEXIS 512 ( Ky. 2016 ).

Jury instructions given had not distinguished between appellant's act of oral sex on the victim and the victim's performance of oral sex on appellant based on his demand or inform the jury as to which act was being prosecuted, and thus, it could not be concluded with any certainty that the jurors unanimously agreed upon the same act when reaching their verdict. Gullett v. Commonwealth, 514 S.W.3d 518, 2017 Ky. LEXIS 82 ( Ky. 2017 ).

Jury instructions on the charge of complicity to trafficking in a controlled substance in the first degree did not permit a non-unanimous verdict where the jury was instructed on a single count, and the evidence established only a single act that met the instruction. Little v. Commonwealth, 553 S.W.3d 220, 2018 Ky. LEXIS 282 ( Ky. 2018 ).

31.Waiver of Right.

Where no appreciable time elapsed between sustaining of appellee’s motion for submission of case for judgment and court’s indication of what his judgment would be appellants who had objected to such motion, could not be charged with laches and thus did not waive their right to jury trial. Howard v. Maxwell's Ex'r, 98 S.W. 1013, 30 Ky. L. Rptr. 448 , 1907 Ky. LEXIS 363 (Ky. Ct. App. 1907).

Defendant in misdemeanor case could agree to less than 12 jurors, or waive jury completely. Phipps v. Commonwealth, 205 Ky. 832 , 266 S.W. 651, 1924 Ky. LEXIS 235 ( Ky. 1924 ).

Defendant who failed to demand trial by jury waived his right thereto. Brown v. Hoblitzell, 307 S.W.2d 739, 1956 Ky. LEXIS 2 ( Ky. 1956 ).

Waiver of right to jury trial after plea of guilty in felony case was constitutional. Holt v. Commonwealth, 310 S.W.2d 40, 1957 Ky. LEXIS 153 ( Ky. 1957 ), cert. denied, 357 U.S. 909, 78 S. Ct. 1154, 2 L. Ed. 2d 1158, 1958 U.S. LEXIS 902 (U.S. 1958).

At least in misdemeanor cases, defendant might waive not only 12-man jury, but also unanimity of jurors in reaching their verdict, provided always that such waiver was made understandingly and voluntarily and further provided that the commonwealth agreed and the trial court approved. Ashton v. Commonwealth, 405 S.W.2d 562, 1965 Ky. LEXIS 4 ( Ky. 1965 ), rev'd, 384 U.S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469, 1966 U.S. LEXIS 1644 (U.S. 1966).

An accused, upon a plea of not guilty in a felony case, may waive his right to a jury trial or may agree to trial by jury of less than 12 members, if consent of the government counsel and the court’s sanction have been obtained and if accused’s waiver is made intelligently and voluntarily. Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

In determining whether a waiver of a jury trial was made understandingly, intelligently, competently, and voluntarily, the court must apply the same standards that are required on the acceptance of a guilty plea and the record must reflect facts which would allow an independent determination of the validity of the waiver. Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

Since one who enters a guilty plea waives his right to trial by jury, it must be shown that such waiver was voluntary and knowing and where the record in a rape prosecution did not show that the court discussed the issue with the defendant to insure that the defendant had a full understanding of the consequences of his guilty plea, there was no valid waiver. Scott v. Commonwealth, 555 S.W.2d 623, 1977 Ky. App. LEXIS 797 (Ky. Ct. App. 1977).

An accused can waive his right to a jury trial. Crone v. Commonwealth, 680 S.W.2d 138, 1984 Ky. App. LEXIS 627 (Ky. Ct. App. 1984).

Where the record did not indicate in any manner that the defendant waived his right to a jury trial, the defendant was entitled to a jury trial pursuant to his request, and it was error for the court to deny the jury trial. Crone v. Commonwealth, 680 S.W.2d 138, 1984 Ky. App. LEXIS 627 (Ky. Ct. App. 1984).

Defendant did not knowingly, voluntarily, and intelligently waive the constitutional right to a twelve-person jury because the record was entirely void of any evidence reflecting upon whether defendant’s waiver of his constitutional right to a twelve-person jury represented a knowing, voluntary, and intelligent choice. Smith v. Commonwealth, 2011 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 21, 2011), aff'd, 394 S.W.3d 903, 2013 Ky. LEXIS 32 ( Ky. 2013 ).

Twelve-person jury is a fundamental right in the Commonwealth, and any waiver of that right must be knowingly and voluntarily made by the defendant personally, not by his counsel unilaterally as a trial-management decision. While waiver of a twelve-person jury should be established through the trial court’s colloquy with the defendant on the record, failure to do so may be harmless error; where counsel has stipulated to proceeding with less than twelve jurors and the defendant has seemingly acquiesced, on remand the trial court should conduct an evidentiary hearing to determine if the defendant knowingly and voluntarily consented to that decision. Commonwealth v. Simmons, 394 S.W.3d 903, 2013 Ky. LEXIS 32 ( Ky. 2013 ).

Trial court properly denied the nursing homes' motions for relief from judgments because, while arbitration was not only sanctioned, but indeed promoted, by the Kentucky Constitution, the arbitration agreements at issue were never validly formed where the powers vested in the attorneys-in-fact did not encompass the power to enter into an arbitration agreements regarding the claims of their decedents, the authority to waive the decedents' constitutional rights of access to the courts by court or jury and to appeal to a higher court were not explicitly set out in the power-of-attorney document, and the attorneys-in-fact were not authorized to enter into arbitration agreements on behalf of the wrongful death beneficiaries. Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 2015 Ky. LEXIS 1867 ( Ky. 2015 ), rev'd in part, vacated in part, 137 S. Ct. 1421, 197 L. Ed. 2d 806, 2017 U.S. LEXIS 2948 (U.S. 2017).

32.Harmless Error.

Where policemen were ordered to be able to be reached by telephone, and report on duty within 30 minutes thereafter, 24 hours a day, they were not to be paid for “on call” time since policemen are considered to normally be under a duty to respond, as such, at any time, and although it was error for the court to deny a jury trial on this issue, it would be harmless since a directed verdict for the county would have been proper. Spellman v. Fiscal Court of Jefferson County, 574 S.W.2d 342, 1978 Ky. App. LEXIS 623 (Ky. Ct. App. 1978).

33.Civil Rights Actions.
34.—Right to Jury Trial.

The Kentucky Civil Rights Act creates a jural right as well as a right to redress by administrative procedure. To the extent it creates a jural right both plaintiff and defendant are entitled to a trial by jury. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

The Kentucky Constitution protects the right to trial by jury. A cause of action pursued under the Kentucky Civil Rights Act is a damage suit like any other. Once a cause of action for damages to be tried in the courts of this Commonwealth has been created by statute, a further provision providing the parties shall have a right to trial by jury is surplusage. To state otherwise would conflict with the Kentucky Constitution. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Executrix was not wrongly denied a jury trial when the circuit court granted the attorney and law firm summary judgment where even though she requested punitive damages, the circuit court determined that her negligence claims did not exist under Kentucky law. Martin v. Bell, 2018 Ky. App. LEXIS 229 (Ky. Ct. App. Aug. 24, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 990 (Ky. Ct. App. Aug. 24, 2018).

35.— Review.

Deciding whether evidence of sexual harassment rises to the level of “severe or pervasive” contains an interpretive component. But this does not mean the reviewing court should substitute its judgment on the issue for that of the jury and the trial judge. Utilizing de novo review, is inappropriate as to ultimate fact questions determined by the jury under the Kentucky Civil Rights Act. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

36.Denial of Right by Court Rule.

Former clause (c) of the second sentence of CR 39.01 violated the right to a trial by jury as guaranteed in this section in at least two (2) respects: it has been used to deny a jury trial where there are raised issues of law and fact and it has broadened the range of application beyond cases of account by authorizing complexity as a basis for constitutionally removing a case from a jury. Steelvest, Inc. v. Scansteel Serv. Ctr., 908 S.W.2d 104, 1995 Ky. LEXIS 97 ( Ky. 1995 ).

Cited:

Louisville Salvage Corps v. Lyons, 145 Ky. 743 , 141 S.W. 42, 1911 Ky. LEXIS 924 ( Ky. 1911 ); Aetna Life Ins. Co. v. Rustin, 151 Ky. 103 , 151 S.W. 366, 1912 Ky. LEXIS 765 ( Ky. 1912 ); Daniel v. Commonwealth, 154 Ky. 601 , 157 S.W. 1127, 1913 Ky. LEXIS 127 ( Ky. 1913 ); Chesapeake & O. R. Co. v. Dean, 160 Ky. 757 , 170 S.W. 167, 1914 Ky. LEXIS 534 ( Ky. 1914 ); Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ); Keeling v. Commonwealth, 178 Ky. 624 , 199 S.W. 789, 1918 Ky. LEXIS 437 ( Ky. 1918 ); McLaughlin v. Barr, 191 Ky. 346 , 230 S.W. 304, 1921 Ky. LEXIS 319 ( Ky. 1921 ); Stamp v. Commonwealth, 195 Ky. 404 , 243 S.W. 27, 1922 Ky. LEXIS 374 ( Ky. 1922 ); Payne v. Lexington, 210 Ky. 437 , 276 S.W. 111, 1925 Ky. LEXIS 698 ( Ky. 1925 ); Burton v. Ott, 226 Ky. 647 , 11 S.W.2d 700, 1928 Ky. LEXIS 148 ( Ky. 1928 ); Hurd v. Commonwealth, 229 Ky. 356 , 17 S.W.2d 201, 1929 Ky. LEXIS 74 2 ( Ky. 1929 ); Bowling v. Commonwealth, 230 Ky. 387 , 19 S.W.2d 1086, 1929 Ky. LEXIS 97 ( Ky. 1929 ); Knoxville Tinware Mfg. Co. v. American Safety Mine Appliance Co., 231 Ky. 282 , 21 S.W.2d 451, 1929 Ky. LEXIS 270 (Ky. 1929); Alexander’s Adm’r v. Kentucky Bankers’ Ass’n, 237 Ky. 232 , 35 S.W.2d 287, 1931 Ky. LEXIS 580 ( Ky. 1931 ); Mills v. Commonwealth, 240 Ky. 359 , 42 S.W.2d 505, 1931 Ky. LEXIS 405 ( Ky. 1931 ); Drury v. Franke, 247 Ky. 758 , 57 S.W.2d 969, 1933 Ky. LEXIS 453 , 88 A.L.R. 917 ( Ky. 1933 ); Heil v. Seidel, 249 Ky. 314 , 60 S.W.2d 626, 1933 Ky. LEXIS 516 ( Ky. 1933 ); Abney v. Commonwealth, 251 Ky. 358 , 65 S.W.2d 71, 1933 Ky. LEXIS 877 (Ky. 1933); Nashville, C. & S. L. Ry. v. Byars, 252 Ky. 507 , 67 S.W.2d 497, 1933 Ky. LEXIS 1024 (Ky. 1933); Blackburn v. Beverly, 272 Ky. 346 , 114 S.W.2d 98, 1938 Ky. LEXIS 115 ( Ky. 1938 ); Bowman v. Commonwealth, 276 Ky. 745 , 125 S.W.2d 213, 1939 Ky. LEXIS 574 ( Ky. 1939 ); Garner v. Shouse, 292 Ky. 798 , 168 S.W.2d 42, 1943 Ky. LEXIS 74 7 ( Ky. 1943 ); Williams v. Pierson, 301 Ky. 302 , 191 S.W.2d 574, 1945 Ky. LEXIS 740 ( Ky. 1945 ); Tabor v. Commonwealth, 303 Ky. 810 , 199 S.W.2d 613, 1947 Ky. LEXIS 561 ( Ky. 1947 ); Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ); In re Kenton County Bar Ass’n, 314 Ky. 664 , 236 S.W.2d 906, 1951 Ky. LEXIS 715 ( Ky. 1951 ); Lanning v. Brown, 377 S.W.2d 590, 1964 Ky. LEXIS 497 ( Ky. 1964 ); Idol v. Knuckles, 383 S.W.2d 910, 1964 Ky. LEXIS 64 ( Ky. 1964 ); B. F. M. Bldg., Inc. v. Trice, 464 S.W.2d 617, 1971 Ky. LEXIS 491 ( Ky. 1971 ); Probus v. Sirles, 569 S.W.2d 707, 1978 Ky. App. LEXIS 569 (Ky. Ct. App. 1978); Godsey v. Commonwealth, 661 S.W.2d 2, 1983 Ky. App. LEXIS 399 (Ky. Ct. App. 1983); Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 1985 Ky. LEXIS 220 ( Ky. 1985 ); Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ); Belt v. Commonwealth, 2 S.W.3d 790, 1999 Ky. App. LEXIS 136 (Ky. Ct. App. 1999); Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004); Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ); Colvard v. Commonwealth, 309 S.W.3d 239, 2010 Ky. LEXIS 62 ( Ky. 2010 ); Kerr v. Commonwealth, — S.W.3d —, 2012 Ky. App. LEXIS 21 (Ky. Ct. App. 2012); Dunlap v. Commonwealth, — S.W.3d —, 2013 Ky. LEXIS 292 ( Ky. 2013 ); Pennington v. Wagner’s Pharm., Inc., — S.W.3d —, 2013 Ky. App. LEXIS 104 (Ky. Ct. App. 2013); Rudd v. Commonwealth, 584 S.W.3d 742, 2019 Ky. LEXIS 412 ( Ky. 2019 ).

Notes to Unpublished Decisions

1.Waiver of Right.

Unpublished decision: Where defendants waived their right to a jury trial, the Commonwealth of Kentucky’s consent was not required for the bench trial on defendants’ charges of driving under the influence, first offense; disregarding a stop sign; and reckless driving. Commonwealth v. Green, 2004 Ky. App. LEXIS 171 (Ky. Ct. App. June 11, 2004), rev'd, 194 S.W.3d 277, 2006 Ky. LEXIS 171 ( Ky. 2006 ).

Opinions of Attorney General.

In a misdemeanor case in district court the defendant may waive his right to be tried by a jury, and he may instead be tried by the judge of the court without the intervention of a jury, provided that (1) the defendant affirmatively in open court waives such right and enters into the waiver understandingly and voluntarily and (2) the Commonwealth agrees and the trial court approves; thus, the waiver would require both the consent of the prosecutor and the judge and, in addition, where the prosecutor objects to the waiver, and thus in effect demands a trial by jury, he is not required to advance any specific reason for his demanding a trial by jury. OAG 80-533 .

Research References and Practice Aids

Cross-References.

Juries, Ky. Const., § 248; KRS, ch. 29A.

Kentucky Law Journal.

Comments, No-Fault Insurance In Kentucky — A Constitutional Analysis, 62 Ky. L.J. 590 (1973-74).

Kentucky Law Survey, Campbell, Criminal Procedure, 64 Ky. L.J. 325 (1975-76).

Comments, Wrongful Refusal to Settle: The Implications of Grundy in Kentucky, 65 Ky. L.J. 220 (1976-77).

Comments, The Employee Defense Act: Wearing Down Sovereign Immunity, 66 Ky. L.J. 150 (1977-78).

Kentucky Law Survey: Cooper, Civil Procedure, 66 Ky. L.J. 531 (1977-1978).

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Leathers and Mooney, Civil Procedure, 74 Ky. L.J. 355 (1985-86).

Leibson, Legal Malpractice Cases: Special Problems in Identifying Issues of Law and Fact and in the Use of Expert Testimony, 75 Ky. L.J. 1 (1986-87).

Notes, Court-Annexed Arbitration: Kentucky’s Viable Alternative to Litigation, 77 Ky. L.J. 881 (1988-89).

Harris, Complex Product Design Litigation: A Need for More Capable Fact-Finders, 79 Ky. L.J. 477 (1990-91).

Northern Kentucky Law Review.

Sower, “Complicated Issues” v. The Right to a Jury Trial: A Procedural Remnant in Kentucky Law Raises Constitutional Problems, 3 N. Ky. L. Rev. 173 (1976).

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

Treatises

Petrilli, Kentucky Family Law, Marriage in General, § 1.2.

§ 8. Freedom of speech and of the press.

Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.

NOTES TO DECISIONS

1.In General.

The free speech and free expression protections under Ky. Const. § 8 are consistent with those in U.S. Const. amend. I. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 2007 Ky. App. LEXIS 370 (Ky. Ct. App. Oct. 5, 2007), aff'd in part and rev'd in part, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ).

2.Advertising.

The provisions of KRS 313.140 prohibiting dentists from advertising credit or terms of credit do not violate this section. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

KRS 320.300 , prohibiting certain types of advertising by optometrists and others, was not violative of this section when applied to ophthalmic dispensers, since such regulation was reasonable and proper exercise of police power in interest of public health. Economy Optical Co. v. Kentucky Board of Optometric Examiners, 310 S.W.2d 783, 1958 Ky. LEXIS 408 ( Ky. 1958 ).

3.Libel.

Common-law crime of criminal libel is analyzed and held not so vague, indefinite or uncertain as to violate the due process or free speech provisions of the Constitution. Ashton v. Commonwealth, 405 S.W.2d 562, 1965 Ky. LEXIS 4 ( Ky. 1965 ), rev'd, 384 U.S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469, 1966 U.S. LEXIS 1644 (U.S. 1966).

4.— Discovery Order.

In a libel action brought against a newspaper on grounds that it negligently and with reckless disregard for the truth published false and defamatory statements, trial court’s discovery order which required reporters to furnish copies of their notes in lieu of the original notes while permitting them to delete from such copies the portions that referred solely to matters other than the issues raised by the allegations of the complaint and permitted a further hearing whenever there was doubt as to whether further material should or should not be deleted was proper, even though the newspaper asserted that a privilege against disclosure existed by virtue of freedom of the press as guaranteed by the First Amendment to the United States Constitution, this section, and KRS 421.100 . Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 1984 Ky. LEXIS 281 ( Ky. 1984 ).

5.Newspapers, Source Protection.

Where newspaper reporter refused to honor subpoena to appear before grand jury but made no showing that such appearance would have a chilling effect on his sources of information, his action did not have the protection of either this section or United States Const., Amend. 1. Branzburg v. Meigs, 503 S.W.2d 748, 1971 Ky. LEXIS 50 ( Ky. 1971 ), aff'd, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626, 1972 U.S. LEXIS 132 (U.S. 1972).

6.Closure of Trial to Press and Public.

Before ordering closure the trial judge should consider the utility of other reasonable methods available to protect the rights of the accused short of closure, and at the time the motion for closure is made or heard any member of the public or press who is then present and objects must be given an opportunity to be heard on the question and if closure is ordered, specific findings should be made setting out the need for closure. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

Trial court did not abuse its discretion by not declaring a mistrial during a trial’s guilt phase where the juror was unaware that he was one of defendant’s former robbery victims until the trial’s sentencing phase, and since neither the juror, the parties, nor the court were aware of the bias, defendant’s right to a fair trial was not impeded. Commonwealth v. Douglas, 553 S.W.3d 795, 2018 Ky. LEXIS 294 ( Ky. 2018 ).

7.— Pretrial Hearing.

Where evidence presented only by one side in murder trial is evidence which jury would hear at trial along with countervailing evidence, an accused’s right to fair trial would not be irreparably damaged by permitting the evidence to be disseminated before trial; thus, trial judge’s order closing all pretrial hearings involving evidentiary matters presented by only one side was too broad. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

A pretrial hearing should be closed to the public and press only after a determination is made that there is a substantial probability that the right of the accused to a fair trial or his other constitutional rights will be otherwise irreparably damaged; thus, if the evidence to be introduced at the pretrial hearing is found to be of a kind that would not be admissible at the trial itself, and is not otherwise already known generally to the press and public, and if the trial court reasonably believes that its dissemination to the public will probably irreparably damage the constitutional rights of the accused, then closure should be ordered. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

Where trial judge ordered that transcripts of all closed pretrial hearings be made available to the public after the jury was empaneled and sequestered or after trial, the public’s acquisition of information was delayed but not frustrated and, although there was slight damage to the commercial interest of the news media, the competing societal interests of fair trial and public access were met. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

While the same policy which calls for openness in criminal trials also calls for openness in pretrial proceedings, sequestration of the jury would not be a remedy to prevent the circulation throughout the community or state of prejudicial information from a pretrial proceeding; thus closing pretrial proceedings to the press and public may be proper in preventing jurors from considering inadmissible prejudicial evidence. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

8.— Juvenile Proceedings.

Excluding the press from juvenile proceedings does not violate or do violence to either the federal or the state Constitution; a juvenile’s right to a fair trial, and the public’s interest in fostering opportunities for rehabilitation transcend the right of the press to an instantaneous reporting. F.T.P. v. Courier-Journal, 774 S.W.2d 444, 1989 Ky. LEXIS 48 ( Ky. 1989 ).

7.—Pretrial Hearing.

Circuit court judge was ordered to provide members of the media with a copy of the recording of a criminal arraignment and to refrain from closing any future proceeding that was ordinarily open to the public and from sealing records because he failed to conduct a hearing and closed the arraignment without making specific finding or considering less restrictive measures; without the hearing, there was no justification for closing any hearings and no justification for sealing any records. WPSD TV v. Jameson, 552 S.W.3d 93, 2018 Ky. App. LEXIS 178 (Ky. Ct. App. 2018).

9.Standard of Liability for Defamation.

This section mandates that the Supreme Court adopt a standard of liability for defamation by the news media which adequately protects the private individual from defamation and the standard adopted is that a private plaintiff may recover on a showing of simple negligence, measured by what a reasonably prudent person would or would not have done under the same or similar circumstances; adoption of such standard does not imply any change in the basic common law and statutory rules of libel and slander. McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 1981 Ky. LEXIS 289 ( Ky. 1981 ), cert. denied, 456 U.S. 975, 102 S. Ct. 2239, 72 L. Ed. 2d 849, 1982 U.S. LEXIS 2104 (U.S. 1982).

10.Conduct.

The prohibition of the use of a minor in a sexual performance, pursuant to KRS 531.310 , as interpreted through its definitional counterpart in subdivision (3)(b) of KRS 531.300 , is not so vague and overbroad as to impinge on freedom of expression in violation of this section and Const., § 11 or U.S. Const., Amends. 1 and 14 since KRS 531.300 , when read as a whole and coupled with a reference to any standard dictionary, should provide the ordinary person of common sense a clear enough indication of the type of acts prohibited. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

Local municipality’s ordinance requiring the licensing of adult entertainment businesses, prohibiting nudity, restricting operation hours, requiring a buffer zone, prohibiting touching and other restrictions, was constitutional upon application of an intermediate scrutiny level of review. The ordinance was content neutral and within the municipality’s police power to regulate the secondary effects of such establishments. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 2007 Ky. App. LEXIS 370 (Ky. Ct. App. Oct. 5, 2007), aff'd in part and rev'd in part, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ).

11.Insults.

KRS 161.190 , which provides that no person shall upbraid, insult or abuse a public school teacher in the presence of the school or a pupil thereof, is an unconstitutional violation of the First Amendment, Section 1(4) and Section 8 of the Kentucky Constitution. Commonwealth v. Ashcraft, 691 S.W.2d 229, 1985 Ky. App. LEXIS 554 (Ky. Ct. App. 1985).

Where a motorist called a police officer a vernacularism meaning a little, fat person who has a continuing incestuous relationship with his mother, such words would constitute a violation of a statute written narrowly enough to provide criminal penalty without infringing upon the right of free speech as guaranteed by this section. Musselman v. Commonwealth, 705 S.W.2d 476, 1986 Ky. LEXIS 242 ( Ky. 1986 ).

As written, subdivision (1) (b) of KRS 525.070 is unconstitutionally vague and overbroad; this subdivision has no measuring stick, so that persons could be found guilty of its violation in circumstances that would infringe constitutional guarantees of free speech. Musselman v. Commonwealth, 705 S.W.2d 476, 1986 Ky. LEXIS 242 ( Ky. 1986 ).

12.Code of Judicial Conduct.

Former Canon 7B(1)(c) of SCR 4.300 prohibition against candidates use of newsletter format and letter that intimated what approach the candidate would take in a particular class of cases did not infringe on candidates right of free speech under U.S. Constitution, First Amendment or Ky. Const., § 8 and is not unconstitutional as overboard or vague. Summe v. Judicial Retirement & Removal Comm'n, 947 S.W.2d 42, 1997 Ky. LEXIS 69 ( Ky. 1997 ).

13.Defamation.
14.— Proof of Malice.

Amusement park presented clear and convincing evidence that a television station’s statements following an accident involving a roller coaster at the park were made with malice by its proof to the effect that the reporter’s statement that state inspectors thought that the ride was too dangerous was made after the station received specific knowledge that the claim was false, that the statement that the ride “malfunctioned” was made after it had acknowledged to the park that the charge was wrong and would be corrected, and that the station’s reporter admitted that his report that the park removed a key component of the ride was false. Ky. Kingdom Amusement Co. v. Belo Ky., Inc., 179 S.W.3d 785, 2005 Ky. LEXIS 242 ( Ky. 2005 ).

15.— Standard of Review.

Constitutional standard of review under Ky. Const., § 8 applicable to a defamation case relates only to the findings of actual malice, which should be reviewed de novo, and not to other parts of the verdict. There is no constitutional requirement for a heightened review of the determination by the jury that the statements at issue are false or defamatory, and even in considering all the evidence of actual malice, the reviewing court must accept all subsidiary facts that the jury could have found, including those disputed facts constituting the proof of actual malice. Ky. Kingdom Amusement Co. v. Belo Ky., Inc., 179 S.W.3d 785, 2005 Ky. LEXIS 242 ( Ky. 2005 ), rehearing denied, — S.W.3d —, 2006 Ky. LEXIS 433 (Ky. Jan. 19, 2006).

16.Public Employee Speech.

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. Because hiring school district employees is an act essential to the function of the school district, Kentucky’s governmental immunity protected the school district and the school superintendent, in his official capacity, from liability for the teacher’s state-law claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. For claims against the school superintendent in his individual capacity for hiring decisions in which he actually participated and or in which his role was unclear, the superintendent was not entitled to summary judgment; it had long been established that discharging or failing to hire or retain an employee because she engaged in protected speech was wrongful, so the superintendent was not entitled to qualified immunity from liability for those claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

17.Injunctions.

Ky. Const. § 8 appears to adopt the classic law against prior restraints in a defamation case where a party seeks an injunction against speech or writing. The District Court’s best assessment of the Kentucky courts’ likely resolution of the propriety of injunctive relief against defamation or invasion of privacy is that, if they permitted an injunction at all, they would at least require that the court be persuaded by clear and convincing evidence that the expressive matter to be enjoined is false or illegal. Lassiter v. Lassiter, 456 F. Supp. 2d 876, 2006 U.S. Dist. LEXIS 70286 (E.D. Ky. 2006 ), aff'd, 280 Fed. Appx. 503, 2008 FED App. 0318N, 2008 U.S. App. LEXIS 12064 (6th Cir. Ky. 2008 ).

Father's constitutional right to free speech was not violated by a family court's order that restricted his ability to convey specific, private content through email; there was a final adjudication prior to issuance of the injunction, substantial evidence supported the determination the enjoined speech was unprotected, and the speech was not subject to heightened scrutiny because of its nature. The balance of equities weighed in favor of enjoining the father's conduct because the mother had a right to be left alone, and the father's conduct ran counter to the best interests of his children. Wedding v. Harmon, 492 S.W.3d 150, 2016 Ky. App. LEXIS 52 (Ky. Ct. App. 2016).

Cited:

Evening Post Co. v. Richardson, 113 Ky. 641 , 24 Ky. L. Rptr. 456 , 68 S.W. 665, 1902 Ky. LEXIS 88 ( Ky. 1902 ); Berea College v. Commonwealth, 123 Ky. 209 , 29 Ky. L. Rptr. 284 , 94 S.W. 623, 1906 Ky. LEXIS 139 ( Ky. 1906 ); Seevers v. Somerset, 295 Ky. 595 , 175 S.W.2d 18, 1943 Ky. LEXIS 304 ( Ky. 1943 ); Hibsman v. Madisonville, 295 Ky. 601 , 175 S.W.2d 21, 1943 Ky. LEXIS 305 ( Ky. 1943 ); Ladd v. Commonwealth, 313 Ky. 754 , 233 S.W.2d 517, 1950 Ky. LEXIS 97 5 ( Ky. 1950 ); O’Leary v. Commonwealth, 441 S.W.2d 150, 1969 Ky. LEXIS 304 ( Ky. 1969 ); Lee v. Commonwealth, 565 S.W.2d 634, 1978 Ky. App. LEXIS 511 (Ky. Ct. App. 1978); Capital Area Right to Life v. Downtown Frankfort, 862 S.W.2d 297, 1993 Ky. LEXIS 97 ( Ky. 1993 ); Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 2010 Ky. LEXIS 254 ( Ky. 2010 ).

Research References and Practice Aids

Cross-References.

Free speech, Ky. Const., § 1.

Prohibited publications, KRS 438.230 , 531.010 to 531.080 .

Kentucky Bench & Bar.

Mitchell, Beyond McCall: Toward a Neutral Reportage Privilege in Kentucky, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 32.

Alley, Kentucky Courts Have Blazed a Public Access Trail: An Examination of the Evolution of the Law with Respect to the Public’s Access to Court Proceedings, Vol. 76, No. 4, July 2012, Ky. Bench & Bar 24.

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Northern Kentucky Law Review.

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

2012 Law & Informatics Issue: Article: The Emerging Conflict between Newsworthiness and the Right to be Forgotten, 39 N. Ky. L. Rev. 119 (2012).

§ 9. Truth may be given in evidence in prosecution for publishing matters proper for public information — Jury to try law and facts in libel prosecutions.

In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

NOTES TO DECISIONS

1.Criminal Libel.

In prosecution for criminal libel, court could charge jury as to law or even direct verdict without violation of this section. Walston v. Commonwealth, 106 S.W. 224, 32 Ky. L. Rptr. 535 (1907).

Cited:

Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125, 1964 U.S. LEXIS 150 (1964); Evening Post Co. v. Richardson, 113 Ky. 641 , 24 Ky. L. Rptr. 456 , 68 S.W. 665, 1902 Ky. LEXIS 88 ( Ky. 1902 ); Ashton v. Commonwealth, 405 S.W.2d 562, 1965 Ky. LEXIS 4 ( Ky. 1965 ).

Research References and Practice Aids

Cross-References.

Actions for libel, KRS 411.045 , 411.051 , 411.060 .

Criminal action for libel or slander of judge or court, KRS 432.280 .

Libel actions, laws governing, KRS 411.045 , 411.051 to 411.062 .

Kentucky Bench & Bar.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

Northern Kentucky Law Review.

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

§ 10. Security from search and seizure — Conditions of issuance of warrant.

The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.

NOTES TO DECISIONS

Analysis

1.In General.

Post mortem examination was not violation of this section. Streipe v. Hubbuch Bros. & Wellendorf, 233 Ky. 194 , 25 S.W.2d 358, 1930 Ky. LEXIS 522 ( Ky. 1930 ).

In close cases, question of legality of search must be determined on facts of particular case. Willoughby v. Commonwealth, 313 Ky. 291 , 231 S.W.2d 79, 1950 Ky. LEXIS 889 ( Ky. 1950 ).

This section protects against unreasonable search and seizure, accompanied by a requirement that no search warrant shall issue except upon probable cause supported by oath or affirmation. Berkshire v. Commonwealth, 471 S.W.2d 695, 1971 Ky. LEXIS 243 ( Ky. 1971 ), overruled, Beemer v. Commonwealth, 665 S.W.2d 912, 1984 Ky. LEXIS 215 ( Ky. 1984 ).

This section of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment. LaFollette v. Commonwealth, 915 S.W.2d 747, 1996 Ky. LEXIS 11 ( Ky. 1996 ).

Ky. Const., § 10 is broader than the Fourth Amendment with respect to due process protections when the nature of the error goes to the accused’s right to have a probable cause determination made by a neutral and detached judicial officer; an error of this magnitude taints the entire judicial process, and can only be cured by suppression of any evidence obtained pursuant to the tainted search, regardless of the good faith of all the parties. Commonwealth v. Brandenburg, 114 S.W.3d 830, 2003 Ky. LEXIS 210 ( Ky. 2003 ).

2.Purpose.

This section did not mean to substitute the good intentions of the police for judicial authorization except in narrowly confined situations. Benge v. Commonwealth, 321 S.W.2d 247, 1959 Ky. LEXIS 272 ( Ky. 1959 ).

3.Construction.

This section means that person may be searched only by proceeding to do so under search warrant or when such person is under a legal arrest or upon strong indication that illegal object of search is actually upon person suspected. Powell v. Commonwealth, 307 Ky. 545 , 211 S.W.2d 850, 1948 Ky. LEXIS 796 ( Ky. 1948 ).

An examination of this section and the Fourth Amendment to the Constitution of the United States reveals little textual difference. The language used is virtually the same and only the arrangement of the words is different. The absence of material difference between these constitutional provisions was recognized in Benge v. Commonwealth, Ky., 321 S.W.2d 247, 1959 Ky. LEXIS 272 (1959).Holbrook v. Knopf, 847 S.W.2d 52, 1992 Ky. LEXIS 191 ( Ky. 1992 ).

To the extent not previously made clear over 20 years of case law, the Supreme Court of Kentucky expressly overrules the holding in Wagner v. Commonwealth, 581 S.W.2d 352, 356 ( Ky. 1979 ), that within the context of warrantless searches, Ky. Const. § 10 provides greater protection than the Fourth Amendment of the Constitution of the United States.Cobb v. Commonwealth, 509 S.W.3d 705, 2017 Ky. LEXIS 6 ( Ky. 2017 ).

4.Application.

Guilt of defendant was no justification for violation of this section, since this protection applied to guilty and innocent alike. Youman v. Commonwealth, 189 Ky. 152 , 224 S.W. 860, 1920 Ky. LEXIS 394 ( Ky. 1920 ).

This section applies notwithstanding possibility in certain cases of results adverse to ends of justice. Bruner v. Commonwealth, 192 Ky. 386 , 233 S.W. 795, 1921 Ky. LEXIS 75 ( Ky. 1921 ).

This section applied to seizure of one’s person as well as possessions. Lewis v. Commonwealth, 197 Ky. 449 , 247 S.W. 749, 1923 Ky. LEXIS 687 ( Ky. 1923 ).

This section applies only to state actions and not to actions of private citizens. Brock v. Commonwealth, 947 S.W.2d 24, 1997 Ky. LEXIS 18 ( Ky. 1997 ).

Although the search warrant issued regarding a search of defendant’s house in a murder case did not comply with RCr P. 2.02 because a notary public could not administer oaths to complaining parties and did not comply with RCr P. 13.10 because it was issued by a court clerk, the motion to suppress that defendant filed could still be denied. The violations of those rules was inadvertent, defendant was not prejudiced by the violations, the violations were not of constitutional magnitude because the provisions of Ky. Const. § 10 and the Fourth Amendment, U.S. Const. amend. IV were still met, and the trial court’s findings of fact regarding the motion to suppress was supported by RCr P. 9.78 substantial evidence. Copley v. Commonwealth, 361 S.W.3d 902, 2012 Ky. LEXIS 26 ( Ky. 2012 ).

5.Search and Seizure.

All persons’ houses, and any parts thereof, were protected under this section. Fleming v. Commonwealth, 217 Ky. 169 , 289 S.W. 212, 1926 Ky. LEXIS 39 ( Ky. 1926 ).

Search was unlawful when conducted without warrant and without arrest. Ross v. Commonwealth, 275 S.W.2d 424, 1955 Ky. LEXIS 353 ( Ky. 1955 ).

Immunity from unlawful search and seizure, guaranteed by constitution, extends not only to home and person of citizen but also to his premises and possessions including truck or automobile, and invasion of such premises for purpose of search by officers without search warrant is unlawful and evidence obtained thereby is incompetent. Alred v. Commonwealth, 272 S.W.2d 44, 1954 Ky. LEXIS 1080 ( Ky. 1954 ).

Search of one’s person, as distinguished from his residence or premises, without a search warrant, may be justified as incident of arrest, but it is limited to a search contemporaneous with, or subsequent to, an arrest prior to an arrest in order to secure evidence to support a future arrest. Manning v. Commonwealth, 328 S.W.2d 421, 1959 Ky. LEXIS 112 ( Ky. 1959 ), overruled, Commonwealth v. Sebastian, 500 S.W.2d 417, 1973 Ky. LEXIS 217 ( Ky. 1973 ).

Where officers had reasonable grounds to believe the occupants of the automobile had committed a felony or felonies and had the fruits of the crimes in their possession, and the officers were authorized to arrest the suspects at once and to conduct a search, the legal efficacy of the search did not depend on whether the officers actually had accomplished the arrest they were empowered to make. Irvin v. Commonwealth, 446 S.W.2d 570, 1969 Ky. LEXIS 128 ( Ky. 1969 ), cert. denied, 400 U.S. 830, 91 S. Ct. 61, 27 L. Ed. 2d 61, 1970 U.S. LEXIS 976 (U.S. 1970).

Where defendant was informed of his right not to consent and was not threatened in any way, a search of his car, which was consented to by the defendant, did not violate his right against unlawful search and seizure. Bowers v. Commonwealth, 555 S.W.2d 241, 1977 Ky. LEXIS 497 ( Ky. 1977 ).

The question of the propriety of a search is generally determined upon the particular facts of each case. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ).

6.—Expectation of Privacy.

When one takes lodging in a motel it is with the certain knowledge that substantial numbers of persons unknown to him will be nearby and in a position to invade his privacy unless caution is exercised to prevent it; as such, for the purpose of determining whether there has been an impermissible search and seizure under this section, what would be sufficient vigilance to preserve one’s privacy in a home, apartment or office may be insufficient in a motel room. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

In those instances when the police have a legitimate reason for their presence on motel premises, one who asserts that his rights have been violated by an unreasonable search accomplished by looking through a motel room window or door must show that he took precautions sufficient to create an objectively reasonable expectation of privacy; otherwise, that which was seen was in plain view. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

Parole officer had no lawful Fourth Amendment basis to enter the parolee defendant’s residence to conduct a warrantless search without defendant’s consent; even though defendant recently tested positive for drugs and defendant’s use of drugs was a parole violation and the officers smelled marijuana when defendant opened defendant’s front door, these facts did not create reasonable suspicion to enter defendant’s residence without defendant’s consent or a search warrant. Defendant’s parole agreement to allow defendant’s parole officer to enter defendant’s residence, and refusal to consent to entry, was a parole violation which made defendant subject to immediate arrest for a parole violation; but the officers did not arrest defendant until after the search, and so the search was not incidental to a lawful arrest. No search warrant exceptions overrode defendant’s expectation of privacy in defendant’s home. Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ).

Defendant had no standing to object to a search of the vehicle in which he was a passenger, as he claimed no possessory interest in it, and, while he had a subjective expectation of privacy in marijuana that was seized from the vehicle, that expectation was not objectively reasonable, as he had no legal right to limit access to the vehicle or its contents, and the marijuana was not concealed in luggage. Garcia v. Commonwealth, 185 S.W.3d 658, 2006 Ky. App. LEXIS 62 (Ky. Ct. App. 2006).

KRS 218A.202(6)(a) and (b) are facially constitutional as the examination of the Kentucky All-Schedule Prescription Electronic Reporting System reports does not constitute a search under the Fourth Amendment or Ky. Const. § 10 since citizens had no reasonable expectation of privacy in the limited examination of and access to their prescription records. Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

Trial court did not err in denying defendant’s motion to suppress evidence police officers seized from the vehicle he was driving prior to his arrest because defendant lacked standing to challenge the search when the vehicle had been abandoned; defendant could not establish that he retained a reasonable expectation of privacy in the car once he fled the scene. Watkins v. Commonwealth, 2008 Ky. App. LEXIS 213 (Ky. Ct. App. July 11, 2008), aff'd, 307 S.W.3d 628, 2010 Ky. LEXIS 60 ( Ky. 2010 ).

Motion to suppress evidence was improperly denied under Ky. Const. § 10 as defendant possessed a reasonable expectation of privacy in defendant’s “trash toter” that was searched because it was located within the curtilage of defendant’s home where others would not have reasonably felt free to rummage through it, so the search was unconstitutional. Ousley v. Commonwealth, 2011 Ky. App. LEXIS 110 (Ky. Ct. App. June 24, 2011), sub. op., 2011 Ky. App. Unpub. LEXIS 966 (Ky. Ct. App. June 24, 2011), aff'd, 393 S.W.3d 15, 2013 Ky. LEXIS 43 ( Ky. 2013 ).

Where a 14-year-old boy disclosed that he was being sodomized by defendant and told the police that he could take them to the place in the woods outside of defendant’s home where one of the assaults occurred, where the police took the boy to the location and discovered a condom that defendant had discarded and that contained the DNA of both defendant and the boy, and where defendant moved to suppress the condom but the trial court denied the motion and held that the evidence was not found in an area that constituted the curtilage of defendant’s home, the appellate court held that, although there was a fence around at least some of defendant’s property, it was not an enclosure that demarked a specific area of land immediately adjacent to the house that was readily identifiable as part and parcel of the house. The fence marked portions of the edge of defendant’s large property rather than enclosing a small area around the house; it was not a fence that enclosed a backyard or patio. Dunn v. Commonwealth, 360 S.W.3d 751, 2012 Ky. LEXIS 8 ( Ky. 2012 ).

Where a 14-year-old boy disclosed that he was being sodomized by defendant and told the police that he could take them to the place in the woods outside of defendant’s home where one of the assaults occurred, where the police took the boy to the location and discovered a condom that defendant had discarded and that contained the DNA of both defendant and the boy, and where defendant moved to suppress the condom but the trial court denied the motion and held that the evidence was not found in an area that constituted the curtilage of defendant’s home, the appellate court held that the use of the area element of the Dunn test weighed against defendant’s claim that the area was part of the curtilage because the area was a wooded area near a deer blind and a four-wheeler trailer. While defendant testified that he managed the vegetation in the area with the goal of attracting deer, hunting and riding four-wheelers were not intimate activities of the home that would show that the area was part of the curtilage. Dunn v. Commonwealth, 360 S.W.3d 751, 2012 Ky. LEXIS 8 ( Ky. 2012 ).

No constitutional violation arose from the admission, in an arson trial, of a stack of overdue bills found in two open trash cans located approximately two feet beyond a rear entrance to defendant’s business because defendant never expressed a subjective belief that the financial documents were in a private location. Further, defendant enjoyed no objective privacy interest in the contents of the trash. Lukjan v. Commonwealth, 358 S.W.3d 33, 2012 Ky. App. LEXIS 5 (Ky. Ct. App. 2012).

There is no expectation of privacy in a license plate affixed to the exterior of one’s motor vehicle that merits constitutional protection and, as a result, when a police officer checks or runs a motor vehicle’s license plate, randomly or otherwise, there is no search as contemplated by Fourth Amendment jurisprudence. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (Ky. Ct. App. Oct. 12, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1040 (Ky. Ct. App. Oct. 12, 2012).

In a rape case, a motion to suppress was properly denied because defendant relinquished any privacy interest he had when he left a Styrofoam cup on a table after a police interview; under both the United States and Kentucky Constitutions, abandoned property was outside of constitutional protection. The taking of the saliva sample from the cup and testing it was not a search or a seizure. Marino v. Commonwealth, 488 S.W.3d 621, 2016 Ky. App. LEXIS 64 (Ky. Ct. App. 2016).

7.—Persons.

An officer has no right to search a person upon a suspicion that he is carrying concealed a deadly weapon in violation of law, as the statute, which furnishes the legislative construction of what are reasonable searches and seizures, does not authorize such search. Hughes v. Commonwealth, 41 S.W. 294, 19 Ky. L. Rptr. 497 (1897).

Search was illegal when made of defendant’s person in absence of lawful arrest. Alred v. Commonwealth, 272 S.W.2d 44, 1954 Ky. LEXIS 1080 ( Ky. 1954 ).

Where defendant arrested for drinking on public highway under former law that prohibited drinking or being under the influence of alcoholic beverage in a public place was wanted for questioning in murder-robbery case which arresting officer had helped investigate two (2) days earlier, and officer observed dark stain on eyelet of defendant’s tennis shoes as he stepped out of van, asked defendant to lift his tennis shoe which defendant did voluntarily, then advised defendant that he was suspect in murder-robbery and read him his Miranda rights, after which defendant voluntarily surrendered his tennis shoes to the officer, there was no unreasonable search and seizure under this section or the Fourth Amendment of the United States Constitution, since the officer had an absolute right to stop the van under the circumstances, the action of officer in inspecting the tennis shoes was not a “search,” the tennis shoes were voluntarily surrendered after defendant was given his Miranda rights and it was irrelevant that defendant was charged with another offense. Baril v. Commonwealth, 612 S.W.2d 739, 1981 Ky. LEXIS 217 ( Ky. 1981 ).

Even though defendant was detained beyond time necessary to effectuate purpose of traffic stop, her detention was justified by detective’s reasonable and articulable suspicion that she was engaged in criminal activity, as detective had information that defendant was local staying at hotel for 15 days paying cash and refusing maid service, she was traveling to another hotel, and methamphetamine paraphernalia was found in vehicle hauling her personal belongings. Length of stop was not unreasonable because canine unit responded within 10 minutes of detective’s call. Commonwealth v. Bucalo, 422 S.W.3d 253, 2013 Ky. LEXIS 633 ( Ky. 2013 ).

Under both the United States Constitution and the Kentucky Constitution, a seizure does not occur if in response to a show of authority, the subject does not yield; in that event, the seizure occurs only when the police physically subdue the subject. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

8.— —Rights of 3rd Parties.

Strangers to property were not protected under this section. Lakes v. Commonwealth, 200 Ky. 266 , 254 S.W. 908, 1923 Ky. LEXIS 78 ( Ky. 1923 ). See Combs v. Commonwealth, 242 Ky. 793 , 47 S.W.2d 725, 1932 Ky. LEXIS 366 ( Ky. 1932 ).

Owner of premises could direct police to search same, without warrant, and evidence thus found was admissible against trespassing defendants. Carter v. Commonwealth, 234 Ky. 695 , 28 S.W.2d 976, 1930 Ky. LEXIS 246 ( Ky. 1930 ).

Immunity from an illegal search is personal, and protection against same may be asserted only by one whose rights are violated. Powell v. Commonwealth, 282 S.W.2d 340, 1955 Ky. LEXIS 241 ( Ky. 1955 ). See Willoughby v. Commonwealth, 313 Ky. 291 , 231 S.W.2d 79, 1950 Ky. LEXIS 889 ( Ky. 1950 ).

9.— —Minors.

This section applied to search of house lived in by minor defendant and his parents. Elmore v. Commonwealth, 282 Ky. 443 , 138 S.W.2d 956, 1940 Ky. LEXIS 186 ( Ky. 1940 ).

10.— —Detention.

Evidence was properly suppressed under RCr 9.78 because defendant had been detained longer than the time required to write him a citation, there was no evidence that defendant was in a high crime area, drug activity had not been confirmed at the residence where defendant had been, and defendant’s prior record alone was not sufficient for the longer detention. Commonwealth v. Gilbert, 2007 Ky. App. LEXIS 15 (Ky. Ct. App. 2007).

Continued questioning and detention of defendant after defendant was given traffic citation was not unreasonable where the officer checked defendant’s license and registration, and believing that defendant’s address was associated with methamphetamine activity, the officer asked for consent to search defendant’s car, and where defendant advised the officer that defendant had two (2) guns for which defendant did not have a permit in defendant’s gym bag. Simmons v. Commonwealth, 2007 Ky. App. LEXIS 405 (Ky. Ct. App. Oct. 19, 2007).

11.—Houses, Structures.

Hillside dugout was house within this section. Morse v. Commonwealth, 204 Ky. 672 , 265 S.W. 37, 1924 Ky. LEXIS 547 ( Ky. 1924 ). See Stafford v. Commonwealth, 212 Ky. 229 , 278 S.W. 574, 1925 Ky. LEXIS 1110 ( Ky. 1925 ).

Warrant which described house occupied and possessed by certain person was not valid for search of separate part of house occupied exclusively by tenants of such person. Nestor v. Commonwealth, 202 Ky. 748 , 261 S.W. 270, 1924 Ky. LEXIS 810 ( Ky. 1924 ).

Where defendant had key to girl friend’s apartment which he was not to use unless she was at home, and did not maintain any property in the apartment except possibly a bottle of after shave or a coat, he had no reasonable expectation of privacy or sufficient property interest in the apartment and thus lacked standing to challenge a search conducted pursuant to a search warrant wherein the police recovered cocaine and morphine hidden by the defendant. Sussman v. Commonwealth, 610 S.W.2d 608, 1980 Ky. LEXIS 286 ( Ky. 1980 ).

Police officer’s shining of a flashlight into the defendant’s darkened motel room was an illegal search where the defendant did not consent to the search, the defendant was not arrested until after the flashlight search, no crime had been committed in the presence of the police, nor did they have any reasonable belief that the defendant had committed a felony, the officers were not responding to an emergency, the contents of his room were not in “plain view,” and despite the officer’s testimony that he did so for his own protection, there was no evidence that any other person was with the defendant, and no noises emanated from within the room. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

Where the officer conducted an illegal search by shining a flashlight into the defendant’s darkened motel room and then obtained a search warrant, the evidence taken under the search warrant was clearly the fruit of the initial illegal search and seizure, and the first search was patently illegal, and the officer’s affidavit given to the magistrate to support the issuance of the warrant was clearly and materially misleading because he testified that he had seen “white powder and drug paraphernalia,” but omitted any mention that he saw them only because he searched a darkened room by illuminating it with a flashlight. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

Remand was required to determine whether a search warrant sufficiently identified the house that was searched, which was found to be a multiple-occupancy structure; for if the premises were found to contain subunits, the search warrant would be invalid as a search warrant directed against a multiple-occupancy structure will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of other units located in the building and occupied by innocent persons, but if the premises were occupied in community-living fashion, the search warrant would have been valid as an exception to this general rule. Commonwealth v. Smith, 898 S.W.2d 496, 1995 Ky. App. LEXIS 96 (Ky. Ct. App. 1995).

Warrantless search of a home was supported by exigent circumstances, as (1) it had been under surveillance on suspicion it housed a methamphetamine lab; (2) police had received information that fugitives were living there; (3) police knew the occupants had purchased ingredients used to manufacture methamphetamine; and (4) police had stopped a woman who said she planned to deliver pseudoephedrine tablets to the home, and they reasonably believed she would tip off the occupants so they could destroy evidence before a warrant could be obtained. Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (Ky. Ct. App. May 4, 2007), review denied, ordered not published, 2008 Ky. LEXIS 45 (Ky. Jan. 16, 2008).

Defendant had no standing to contest a search of another’s home because defendant did not claim to own or live there at the time of the search and, thus, had no reasonable expectation of privacy in the home. Guinn v. Commonwealth, 2014 Ky. App. LEXIS 53 (Ky. Ct. App. Mar. 28, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1051 (Ky. Ct. App. Mar. 28, 2014).

Defendant lacked sufficient standing to challenge the validity of a warrantless search of a house due to his failure to establish a possessory or ownership interest in the property. Based on the lack of evidence indicating that defendant owned or lived on the property at the time of the search, the trial court was correct in denying defendant’s motion to suppress. Mackey v. Commonwealth, 407 S.W.3d 554, 2013 Ky. LEXIS 378 ( Ky. 2013 ).

Kentucky Supreme Court continues to follow a plain reading of the rule in Payton v. New York, 445 U.S. 573 (1980), which allows police to enter a suspect's residence with a valid arrest warrant when they have a reason to believe that the suspect lives in the residence and can currently be found inside; reason to believe requires less proof than probable cause and is established by evaluating the totality of the circumstances and common sense factors. Therefore, a motion to suppress was properly denied in a drug case because officers lawfully entered a residence after an anonymous tip gave the residence where defendant was located, and there were warrants out for his arrest. Barrett v. Commonwealth, 470 S.W.3d 337, 2015 Ky. LEXIS 1859 ( Ky. 2015 ), cert. denied, 577 U.S. 1159, 136 S. Ct. 1208, 194 L. Ed. 2d 212, 2016 U.S. LEXIS 1557 (U.S. 2016).

In a drug case, officers did not exceed the scope of a lawful search during the execution of an arrest warrant when they entered upstairs bedrooms after being told that defendant was located in an upstairs closet, but which closet was not specified; moreover, the search ended when defendant was located in a hallway closet. The search was also proper as a protective sweep where a cursory visual inspection of the upstairs rooms was done to look for defendant or anyone else who might have been hiding. Barrett v. Commonwealth, 470 S.W.3d 337, 2015 Ky. LEXIS 1859 ( Ky. 2015 ), cert. denied, 577 U.S. 1159, 136 S. Ct. 1208, 194 L. Ed. 2d 212, 2016 U.S. LEXIS 1557 (U.S. 2016).

12.— —Premises Covered.

Garden and pond appurtenant to defendant’s house came within the purview of this section that prohibited the unreasonable search and seizure of house and possessions. Childers v. Commonwealth, 198 Ky. 848 , 250 S.W. 106, 1923 Ky. LEXIS 564 ( Ky. 1923 ).

Trial court properly denied defendant’s suppression motion as: (1) there was substantial evidence to support a finding that the camper was under defendant’s control and that there was a fair probability that contraband would be found in it; (2) the camper was simply an outbuilding in the curtilage of defendant’s house; and (3) a search of the camper would not have violated the Fourth Amendment, even if the warrant had not specifically designated the camper, as it belonged to defendant, it was located on his property, it was under his control, and it was the type of structure in which drugs could easily be hidden. Swift v. Commonwealth, 2005 Ky. App. LEXIS 285 (Ky. Ct. App. July 29, 2005), sub. op., 2005 Ky. App. Unpub. LEXIS 923 (Ky. Ct. App. July 29, 2005), aff'd, 237 S.W.3d 193, 2007 Ky. LEXIS 202 ( Ky. 2007 ).

13.— — Premises Not Covered.

Wooded area 500 yards from residence was not within purview of this section that prohibited unreasonable search and seizure of house and possessions. Cotton v. Commonwealth, 200 Ky. 349 , 254 S.W. 1061, 1923 Ky. LEXIS 98 ( Ky. 1923 ).

This section does not require a warrant to search for an unlawful thing in a woodland belonging to defendant, situated somewhat remote from the dwelling. Simmons v. Commonwealth, 210 Ky. 33 , 275 S.W. 369, 1925 Ky. LEXIS 623 ( Ky. 1925 ).

Woodland approximately 30 yards from defendant’s house was near enough to require warrant for search. Mullins v. Commonwealth, 220 Ky. 656 , 295 S.W. 987, 1927 Ky. LEXIS 593 ( Ky. 1927 ).

Piece of land some distance up creek from dwelling house, and not used in connection with dwelling, could be searched without warrant. Fugate v. Commonwealth, 294 Ky. 410 , 171 S.W.2d 1020, 1943 Ky. LEXIS 461 ( Ky. 1943 ), overruled, Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

14.— —Curtilage.

The curtilage, defined as piece of ground commonly used in connection with dwelling house, is exempt from search without a search warrant. Fugate v. Commonwealth, 294 Ky. 410 , 171 S.W.2d 1020, 1943 Ky. LEXIS 461 ( Ky. 1943 ), overruled, Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

Trash pulls were illegal because the trash cans were in defendant’s curtilage, and the officer never tried to contact defendant; indeed, the officer’s chosen approach to investigating—a covert trash pull—depended entirely on not encountering the residents; he went directly to the trash cans under cover of darkness to search them. His goal was not engaging the homeowner, but to approach the house under cover and to avoid detection, thereby avoiding interacting with defendant at all. Commonwealth v. Ousley, 393 S.W.3d 15, 2013 Ky. LEXIS 43 ( Ky. 2013 ).

Officers' viewing of the marijuana baggies in defendants' apartment prior to the search was illegal where the baggies were only viewable from the back patio of their apartment, that patio enjoyed curtilage protection, and it was not reasonable to enter the back patio enclosure and knock on the sliding glass door. Pace v. Commonwealth, 529 S.W.3d 747, 2017 Ky. LEXIS 389 ( Ky. 2017 ).

15.— —Hotel/Motel Room.

The forced, warrantless entry into the defendant’s motel room constituted a search and seizure. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

The government unquestionably conducted a search of the defendant’s motel room when one of the officers shone a flashlight’s beam into his darkened room; the government conducts a search when it uses enhanced viewing of the interior of a home, because it impairs a legitimate expectation of privacy. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

Where the police made a forced, warrantless entry into the defendant’s motel room, the defendant did not consent to the search by failing to ask them to leave; the government has the burden of justifying a warrantless, forcible entry into a citizen’s motel room, and a lone citizen does not bear the burden of disproving his final acquiescence to the entry of his abode by a group of armed police officers, representative of the weighty authority of the government by the badges they wear. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

Because it was unreasonable for an officer to believe that a crime was in progress, exigent circumstances did not justify the officer’s warrantless entry into defendant’s motel room; since the officer had no justifiable reason to enter the room without a warrant, drugs and paraphernalia in the room, which were the fruits of the illegal entry, should have been suppressed. Southers v. Commonwealth, 210 S.W.3d 173, 2006 Ky. App. LEXIS 350 (Ky. Ct. App. 2006), overruled in part, Brumley v. Commonwealth, 413 S.W.3d 280, 2013 Ky. LEXIS 587 ( Ky. 2013 ).

Trial court did not err in denying defendant's motion to suppress because a warrant was clearly obtained before police officers conducted a search of his hotel room, the constitutional protection against unlawful searches and seizures only applied to public officers and not private individuals, and a hotel employee was performing a work-related search of defendant's room when he discovered the marijuana. Rabe v. Commonwealth, 2015 Ky. App. LEXIS 30 (Ky. Ct. App. Feb. 27, 2015).

16.— — Invasion of Privacy.

There was no trespass where search was made under valid warrant. Ingraham v. Blevins, 236 Ky. 505 , 33 S.W.2d 357, 1930 Ky. LEXIS 783 ( Ky. 1930 ).

Search was illegal when made by trespassing on defendant’s private property. Alred v. Commonwealth, 272 S.W.2d 44, 1954 Ky. LEXIS 1080 ( Ky. 1954 ).

There was no invasion of privacy and thus no illegal search and seizure in the inspection of the exterior of the defendant’s automobile for marks of an accident. Smith v. Commonwealth, 424 S.W.2d 835, 1967 Ky. LEXIS 27 ( Ky. 1967 ).

The actions of a police officer did not constitute an impermissible entry onto property when said police officer, in pursuit of a fleeing suspect and without a warrant, entered a house located in close proximity to the scene of an alleged drug offense, as under the circumstances there existed both probable cause and the necessary exigent circumstances to justify the officer’s actions. United States v. Henry, 878 F.2d 937, 1989 U.S. App. LEXIS 9534 (6th Cir. Ky. 1989 ).

When an agent and a detective came to a residence to conduct a knock and talk, it was impermissible to get a landlord to open the door; moreover, the exigent circumstances of plain smell were created when the agent and the detective improperly permitted the landlord to unlock the door. Hall v. Commonwealth, 438 S.W.3d 387, 2014 Ky. App. LEXIS 6 (Ky. Ct. App. 2014).

17.— —Unlawful Entry onto Premises.

The police were not authorized, in anticipation of executing a search warrant upon a person’s property in another location, to enter his motel room and constantly observe him therein at a time when he is not under arrest; if such an intrusion were permitted, even upon the basis of generalized police safety considerations, the police would be authorized to engage in forced, warrantless searches in a multitude of otherwise prohibited circumstances. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

Where police officers, having knowledge that defendant was known to be armed, forcibly entered and remained in his motel room while defendant dressed in preparation for accompanying the officers as they searched his car, and where the officers while inside the room, were able to observe drugs and drug paraphernalia, under the circumstances of this case, a mere apprehension for personal safety on the part of the officers was insufficient to permit such an entry by the police and accordingly, was sufficient to create an exception to the warrant requirement as provided for under this section. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

Defendant's motion to suppress evidence seized from his apartment should have been granted where there was no evidence from which to conclude that defendant was lying to the police officers when they knocked on his door searching for a juvenile, and the odor of marijuana immediately outside was insufficient, on its own, to constitute exigent circumstances for a warrantless search. Lydon v. Commonwealth, 490 S.W.3d 699, 2016 Ky. App. LEXIS 78 (Ky. Ct. App. 2016).

18.— — Entry by Ruse.

Officers who used the ruse of pretending to be delivering a pizza in order to gain entry into defendant’s residence and execute a search warrant did not violate defendant’s constitutional right against searches and seizures, and drugs seized pursuant to the entry and search were admissible at trial. Adcock v. Commonwealth, 967 S.W.2d 6, 1998 Ky. LEXIS 59 ( Ky. 1998 ).

Substantial evidence supported a Circuit Court’s finding that defendant’s U.S. Const. amend. IV and Ky. Const. § 10 rights were not violated because she voluntarily consented to a police officer’s warrantless entry into a motel room, which led to the discovery of drugs and drug paraphernalia evidence that was sitting in plain view in the room. Although the officer told defendant that he was there to investigate a noise complaint and did not disclose that he had also received a report of suspicious drug activity, that ruse was not a heinous fabrication given that defendant immediately conceded that the television had been playing loudly, nor was the ruse so unfair and unconscionable as to be coercive. Rogers v. Commonwealth, 2008 Ky. App. LEXIS 280 (Ky. Ct. App. Sept. 12, 2008), review denied, ordered not published, 2009 Ky. LEXIS 117 (Ky. Feb. 11, 2009).

19.—Possessions.

Game wardens’ search of saddlebags of unlicensed hunter was not violative of this section. Manning v. Roberts, 179 Ky. 550 , 200 S.W. 937, 1918 Ky. LEXIS 248 ( Ky. 1918 ).

Possessions within context of this section, and in keeping with rule of ejusdum generis, was defined as items intimately associated with one’s person, as opposed to all of one’s property. Brent v. Commonwealth, 194 Ky. 504 , 240 S.W. 45, 1922 Ky. LEXIS 196 ( Ky. 1922 ).

When suspect left arrest jurisdiction by going out of state, any possessions he left behind by which he could be identified were legally subject to search and seizure without warrant. Sexson v. Commonwealth, 239 Ky. 177 , 39 S.W.2d 229, 1931 Ky. LEXIS 750 ( Ky. 1931 ).

20.— —Automobiles.

Under this section, an individual’s automobile is afforded the same protection from unreasonable search and seizure as is his house or person. Commonwealth v. Chaplin, 307 Ky. 630 , 211 S.W.2d 841, 1948 Ky. LEXIS 793 ( Ky. 1948 ).

Trial court properly denied defendant’s motion to suppress evidence seized from the vehicle he was driving when he was stopped because he could not demonstrate a violation of his Fourth Amendment rights since he did not have a reasonable and legitimate expectation of privacy with respect to the interior of the vehicle; defendant made no showing the owner/passenger relinquished any possessory control or interest to him, and she had the right to decide whether to admit entry to another person. Bolin v. Commonwealth, 592 S.W.3d 305, 2019 Ky. App. LEXIS 198 (Ky. Ct. App. 2019).

Whether the non-owner driver of a vehicle has a reasonable expectation of privacy with respect to the vehicle’s compartments and interior hinges on whether the owner has relinquished both possession of and control over the vehicle to the non-owner such that the non-owner driver formed a subjective expectation of privacy that society is prepared to accept as reasonable; this is a fact intensive inquiry and one that the defendant bears the burden of proving. Bolin v. Commonwealth, 592 S.W.3d 305, 2019 Ky. App. LEXIS 198 (Ky. Ct. App. 2019).

21. —Consent.

Consent waived rights under this section, even where it was given only in return for certain privileges. Richardson v. Commonwealth, 205 Ky. 434 , 266 S.W. 1, 1924 Ky. LEXIS 136 ( Ky. 1924 ).

Notwithstanding provision of prohibition law for issuance of search warrant to search dwelling used for unlawful sale, officer’s search without warrant of house of defendant who had illegal still was not violative of this section, since defendant consented thereto. French v. Commonwealth, 211 Ky. 288 , 277 S.W. 265, 1925 Ky. LEXIS 868 ( Ky. 1925 ).

A search of premises is not unlawful if the owner does not object, since only compulsory search and seizure is prohibited by this section. Davenport v. Commonwealth, 285 Ky. 628 , 148 S.W.2d 1054, 1941 Ky. LEXIS 444 ( Ky. 1941 ).

Consent may be given for search of house by owner or one in charge at time. Cline v. Commonwealth, 312 Ky. 645 , 229 S.W.2d 435, 1950 Ky. LEXIS 724 ( Ky. 1950 ). See Hightower v. Commonwealth, 286 Ky. 561 , 151 S.W.2d 39, 1941 Ky. LEXIS 282 ( Ky. 1941 ); Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

Defendant’s response of “come in” to knock on door by police was not consent to search of house without warrant. Adams v. Commonwealth, 313 Ky. 298 , 231 S.W.2d 55, 1950 Ky. LEXIS 879 ( Ky. 1950 ).

No search can be made of a citizen’s house without a warrant unless a citizen waives his constitutional rights by consenting thereto, and this consent may be actual or imputed. Hall v. Commonwealth, 261 S.W.2d 677, 1953 Ky. LEXIS 1051 ( Ky. 1953 ).

When defendant was lawfully arrested and consented to search of his car, such search was lawful. Brewster v. Commonwealth, 278 S.W.2d 63, 1955 Ky. LEXIS 473 ( Ky. 1955 ).

Concomitant with the right of the owner or permissive user of a vehicle to prevent a routine inventory by police is the right to have a representative present during any inventory that is authorized and his right to limit the inventory to only specific portions of the vehicle. Wagner v. Commonwealth, 581 S.W.2d 352, 1979 Ky. LEXIS 262 ( Ky. 1979 ), overruled, Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ), overruled, Cobb v. Commonwealth, 509 S.W.3d 705, 2017 Ky. LEXIS 6 ( Ky. 2017 ).

Where allegedly intoxicated defendant asked if he could get into the back seat of the police cruiser at the scene of the accident, and voluntarily submitted to a preliminary breath test, he was neither under arrest nor in custody and the taking of his breath did not constitute an illegal search. Allen v. Commonwealth, 817 S.W.2d 458, 1991 Ky. App. LEXIS 125 (Ky. Ct. App. 1991).

Trial court properly admitted evidence seized from the defendant’s home after he had given a child protective services investigator and deputies consent to enter his home to conduct a mandatory investigation pursuant to KRS 620.040(1). It was not unreasonable for the deputies to enter the bedroom after the investigator informed the appellant that she was required to look into that room, where the drug manufacturing evidence was in plain view. Hallum v. Commonwealth, 219 S.W.3d 216, 2007 Ky. App. LEXIS 89 (Ky. Ct. App. 2007).

Defendant’s consent to a search of the vehicle was voluntary since the officer’s statements that defendant had little choice after admitting possession of two concealed weapons and that the officer could obtain a search warrant if needed were not baseless or deceptive, and did not vitiate defendant’s consent to search the vehicle, and the fact that the officer asked several times before defendant gave consent did not negate the voluntariness of the consent. Simmons v. Commonwealth, 2007 Ky. App. LEXIS 405 (Ky. Ct. App. Oct. 19, 2007).

Supreme Court of Kentucky holds that under Ky. Const. § 10 consent by the owner for the police to enter his home does not extend to the entire house, even for a protective sweep. Guzman v. Commonwealth, 375 S.W.3d 805, 2012 Ky. LEXIS 84 ( Ky. 2012 ).

22.— — Competency.

Consent of defendant’s incompetent father was not valid. Gilliland v. Commonwealth, 224 Ky. 453 , 6 S.W.2d 467, 1928 Ky. LEXIS 608 ( Ky. 1928 ).

23.— — Coercion.

Waiver of constitutional guarantee will not result from a consent that the premises be searched, where the consent is coerced or given in response to a demand by an officer accompanied by the statement that he possesses a warrant authorizing the search. Callebs v. Commonwealth, 290 Ky. 529 , 161 S.W.2d 932, 1942 Ky. LEXIS 431 ( Ky. 1942 ).

Search was not illegal where no objection was made and no coercion was used such as would have induced occupants not to object. Smith v. Commonwealth, 375 S.W.2d 242, 1963 Ky. LEXIS 184 ( Ky. 1963 ). See Pigg v. Commonwealth, 284 S.W.2d 670, 1955 Ky. LEXIS 35 ( Ky. 1955 ); Johnson v. Commonwealth, 291 S.W.2d 550, 1956 Ky. LEXIS 385 ( Ky. 1956 ).

Since the officer did not threaten, force, or assert custody over defendant’s wife, the fact that he merely stated that he had a warrant for defendant’s arrest did not vitiate the voluntariness of her consent for his searching the residence to verify that defendant was not there. Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

24.— — Other Parties.

Father of defendant, who was owner of house, could consent to search by police, without warrant, of such house. Banks v. Commonwealth, 190 Ky. 330 , 227 S.W. 455, 1921 Ky. LEXIS 436 ( Ky. 1921 ).

Wife’s consent to search by officers without warrant did not render such search legal as to evidence against defendant husband, since fact that she knew such officers to be law enforcement officials invalidated any voluntary consent by her. Potowick v. Commonwealth, 198 Ky. 843 , 250 S.W. 102, 1923 Ky. LEXIS 563 ( Ky. 1923 ).

Where officer went to defendant’s home with search warrant, but did not read it to defendant’s wife, and she got defendant’s pistol from house and gave it to officer at his request, pistol was not obtained by an unlawful search. Brooks v. Commonwealth, 281 Ky. 415 , 136 S.W.2d 552, 1940 Ky. LEXIS 51 ( Ky. 1940 ).

The search of a house without warrant, with permission of mother of minor accused of crime, made hours after minor’s arrest, was an unlawful search, and evidence found as result of search was inadmissible, since under implied coercion mother could not waive minor’s immunity from search of his dwelling without a warrant. Elmore v. Commonwealth, 282 Ky. 443 , 138 S.W.2d 956, 1940 Ky. LEXIS 186 ( Ky. 1940 ).

Taking of articles by officers for use as evidence from defendant’s home while he was unconscious was not a search without his consent, because of defendant’s subsequent actions in voluntarily delivering article of clothing and voluntarily submitting sample of his blood. Davenport v. Commonwealth, 285 Ky. 628 , 148 S.W.2d 1054, 1941 Ky. LEXIS 444 ( Ky. 1941 ).

Where defendant in murder case lived in father’s house, and father consented to search of the house by police officers, empty cartridge case found in kitchen by officers could properly be introduced in evidence. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

A stranger or a kinsman, who does not reside in or have possession and control over the premises to be searched, cannot consent to the search of another’s home. Hall v. Commonwealth, 261 S.W.2d 677, 1953 Ky. LEXIS 1051 ( Ky. 1953 ).

Automobile guest could not object to search without warrant of vehicle controlled by another. Brown v. Commonwealth, 378 S.W.2d 608, 1964 Ky. LEXIS 187 , 14 A.L.R.3d 1330 ( Ky. 1964 ), overruled, Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 ( Ky. 1983 ), overruled in part, Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 ( Ky. 1983 ), overruled on other grounds, Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 (Ky. 1983). See West v. Commonwealth, 273 Ky. 779 , 117 S.W.2d 998, 1938 Ky. LEXIS 722 ( Ky. 1938 ); Anderson v. Commonwealth, 312 Ky. 768 , 229 S.W.2d 756, 1950 Ky. LEXIS 760 ( Ky. 1950 ).

Where the defendant’s sister had possessory rights in the searched premises coextensive with the defendant’s, the sister had the authority to grant permission for the search. Garr v. Commonwealth, 463 S.W.2d 109, 1971 Ky. LEXIS 570 (Ky.), cert. denied, 403 U.S. 910, 91 S. Ct. 2219, 29 L. Ed. 2d 687, 1971 U.S. LEXIS 1782 (U.S. 1971).

Pantyhose matching stocking mask used in two (2) robberies were legally seized under this section and the Fourth Amendment to the United States Constitution in warrantless search of defendant’s apartment where defendant’s cotenant in the apartment, his mother-in-law, gave her permission to police officers to enter and search, since a third party with common authority over the premises could give valid consent. Sanders v. Commonwealth, 609 S.W.2d 690, 1980 Ky. LEXIS 275 ( Ky. 1980 ).

Insofar as Louisville Housing Code requires a landlord to consent to an inspection of premises prior to renting out those premises, the landlord’s rights under the Fourth Amendment to the United States Constitution are not abridged, nor does this requirement of the Housing Code violate this section. However, landlord’s consent to an inspection cannot justify a warrantless inspection of premises after they have become the home of a tenant, and such an inspection could not be made absent consent of the tenant or an emergency. Louisville Bd. of Realtors v. Louisville, 634 S.W.2d 163, 1982 Ky. App. LEXIS 218 (Ky. Ct. App. 1982).

The 19 year old defendant’s mother had authority to give consent to a search of his bedroom and a safe therein, notwithstanding that he was on the premises and that officers bypassed asking him for consent. Colbert v. Commonwealth, 43 S.W.3d 777, 2001 Ky. LEXIS 23 (Ky., cert. denied, 534 U.S. 964, 122 S. Ct. 375, 151 L. Ed. 2d 285, 2001 U.S. LEXIS 9680 (U.S. 2001), modified, 2001 Ky. LEXIS 88 (Ky. May 24, 2001).

When an officer stopped to determine why a truck was parked alongside the highway at 3:30 a.m., the truck’s owner had full authority to consent to a search of the vehicle, including a search of a suspicious article in the truck’s bed, despite the objection of the person who was driving the truck. Travis v. Commonwealth, 2004 Ky. App. LEXIS 149 (Ky. Ct. App. May 21, 2004).

Defendant’s wife voluntarily consented for Fourth Amendment and Ky. Const. § 10 purposes to the officers’ search of a residence by opening the door and stating “Come on in” after a child abuse investigator explained that there had been a complaint of possible child neglect and drugs; also, defendant did not revoke the wife’s consent, or object to the search of the residence, as defendant stated “Fine,” or “Well, okay” after a deputy responded to defendant’s questioning of the officers’ presence by stating that the wife had consented to the search. Payton v. Commonwealth, 2008 Ky. App. LEXIS 370 (Ky. Ct. App. Dec. 5, 2008, sub. op., 2008 Ky. App. Unpub. LEXIS 1221 (Ky. Ct. App. Dec. 5, 2008).

Suppression of evidence was not warranted as it related to postal employees’ search of a package that was sent from a business because it was reasonable to rely on the consent given by the business. Hall v. Commonwealth, 438 S.W.3d 387, 2014 Ky. App. LEXIS 6 (Ky. Ct. App. 2014).

25.— — Defendant on Parole.

Where defendant, as part of his conditions of parole, signed an agreement wherein he consented to a search of his person or property any time probable cause existed for the parole officers to believe that defendant possessed contraband, actions by parole officers were proper because they entered defendant’s residence to discuss his failure to report, saw bullets on the dresser, and after arresting defendant, search revealed cash and contraband drugs; therefore findings of trial court supporting probable cause were based on substantial evidence. Clay v. Commonwealth, 818 S.W.2d 264, 1991 Ky. LEXIS 158 ( Ky. 1991 ), cert. denied, 503 U.S. 923, 112 S. Ct. 1304, 117 L. Ed. 2d 525, 1992 U.S. LEXIS 1609 (U.S. 1992), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ).

25.5.— —Defendant on Probation.

Trial court properly denied defendant's suppression motion because a warrantless search was constitutional where the detectives had a reasonable suspicion, based on a tip, that defendant was selling heroin at the hospital where his girlfriend had just given birth to their child, the search was done with the knowledge of drug court officers and pursuant to the consent form signed by defendant, the informant had been used in other cases and had shown truthfulness and accuracy, defendant waived his rights to be free from unreasonable searches and seizures by signing the drug court consent to search form, and the search did not have to be conducted by a drug court officer. Curtis v. Commonwealth, 2016 Ky. App. LEXIS 180 (Ky. Ct. App. Oct. 28, 2016).

26.— — Electronic Surveillance.

In a prosecution for the offense of bribing a witness, defendant’s Fourth Amendment rights were not violated by the admission of two (2) tape recorded conversations between the defendant and an informant, where the electronic surveillance was with the informant’s express consent, and where the informant and the police officers who monitored the conversations verified the tapes’ authenticity. Carrier v. Commonwealth, 607 S.W.2d 115, 1980 Ky. App. LEXIS 370 (Ky. Ct. App. 1980).

27.— With Warrant.

Where the defendants were apprehended on private property by the owners and were held until the police arrived and the police then inspected the property and found that it had been broken into and property taken, there was probable cause for the immediate warrantless search of the vehicle in which the defendants were found. Sullivan v. Commonwealth, 481 S.W.2d 49, 1972 Ky. LEXIS 217 ( Ky. 1972 ).

Where two (2) men were observed operating a van, which contained television and stereo sets with price tags attached, in a suspicious manner, and the two (2) men were identified by an associate found to be carrying a concealed weapon, the subsequent search by police officers of the occupants of the van was not unreasonable. Bays v. Commonwealth, 486 S.W.2d 706, 1972 Ky. LEXIS 119 ( Ky. 1972 ).

Assuming that the owners of a theater showing a pornographic film were within the scope of protection of this section, seizure of the film pursuant to a warrant issued on the basis of an affidavit of a police officer who saw the film in the theater did not violate this section. Western Corp. v. Commonwealth, 558 S.W.2d 605, 1977 Ky. LEXIS 540 ( Ky. 1977 ).

Where evidence of a suspect’s culpability was at least strong enough to cause investigating officers in possession of such evidence to come under a duty to present it to a judge, so the court could determine if there was probable cause to support the issuance of a search warrant and an arrest warrant, and where as a result of said evidence, such warrants did issue, and where there was no indication that said officers provided any false information in the affidavits used to secure these warrants, such investigation by said officers, without more, does not give rise to the level of a constitutional violation cognizable under 42 USCS § 1983, even where the execution of said warrants led to the seizure of no new evidence, and where all charges were eventually dropped with regard to the suspect. Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ).

Officer gained access to the defendant’s premises with a properly executed warrant to search for marijuana and cocaine and thus, the discovery of nude photos occurred in the course of a valid search for drugs. It was undisputed that the officer had a right to inspect the bureau and its contents for drugs as the officer reasonably believed that illegal drugs might be found in any of the drawers to the bureau, and that drugs could have been hidden by objects, such as photographs. In fact, drugs were discovered in the bottom drawer of the same bureau which contained the photographs and the nature of the subject matter of the photographs made it immediately apparent to the officer that some criminal activity had occurred. It was irrelevant that the top photograph did not depict or was not indicative of criminal activity since the investigating officer had a right to search under the photographs for the presence of marijuana or cocaine. The “plain view” doctrine was invoked at the time the officer saw the photograph of mother performing oral sex on her daughter. The remaining photographs were then properly reviewed by the officer and, thereafter, seized. Hazel v. Commonwealth, 833 S.W.2d 831, 1992 Ky. LEXIS 105 ( Ky. 1992 ).

28.—Without Warrant.

Moonshine still was legally seized without warrant where it was found by observation of smoke and was located in open area, notwithstanding it was situated on land of defendant’s father who did not consent, since there was no search of defendant’s property. Bowling v. Commonwealth, 193 Ky. 642 , 237 S.W. 381, 1922 Ky. LEXIS 59 ( Ky. 1922 ).

In prosecution for carrying concealed deadly weapon, evidence that arresting officer could see print of pistol in defendant’s shirt, and that defendant, in response to officer’s question, stated that he had pistol in shirt, was sufficient grounds for officer’s belief that defendant was committing the offense of carrying a concealed weapon, and justified his arrest and search without warrant. Johnson v. Commonwealth, 304 Ky. 490 , 200 S.W.2d 913, 1947 Ky. LEXIS 646 ( Ky. 1947 ).

Where a sheriff and his deputies concealed themselves at night near the defendant’s home and observed a man make several trips from the defendant’s home to his automobile, and the search of this man following his arrest revealed a pint bottle of whiskey, and the officers without a search warrant forced their way into defendant’s home, while he and his family were absent therefrom, and searched it and found a quantity of intoxicating liquor, the search was illegal and the evidence thereby obtained was incompetent. Hall v. Commonwealth, 261 S.W.2d 677, 1953 Ky. LEXIS 1051 ( Ky. 1953 ).

Violation of this section was not justified by belief of police that defendant’s home contained contraband. Hall v. Commonwealth, 261 S.W.2d 677, 1953 Ky. LEXIS 1051 ( Ky. 1953 ).

Where officers acting on reliable information giving them reasonable grounds to believe accused had committed wilful murder entered his unlocked apartment in his absence and upon his return arrested him without a valid warrant, then took him into the bedroom to observe the possible presence of a confederate on the street below, seizing while there a billfold lying in plain view on a table and subsequently identified as the property of the deceased, the seizure, which was without a search warrant, was lawful, since, although there may have been a limited intrusion, it was a reasonable one. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where police had been informed that heroin was being sold from a certain location and car, had obtained a search warrant for the former only, had searched it, finding nothing, and the defendant and his brother then arrived in the car and were searched at which time heroin was discovered both on them and in the car, there was probable cause for the search but no exigent circumstances justifying the second search without a warrant; therefore the evidence must be suppressed, and, since the conviction could not have been obtained without it, the conviction must be reversed. Shanks v. Commonwealth, 574 S.W.2d 688, 1978 Ky. App. LEXIS 630 (Ky. Ct. App. 1978), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

All warrantless searches are unreasonable and thus illegal unless they fall within one of the limited exceptions to the general rule that a search must be based upon a valid warrant. Cooper v. Commonwealth, 577 S.W.2d 34, 1979 Ky. App. LEXIS 372 (Ky. Ct. App. 1979), overruled, Mash v. Commonwealth, 769 S.W.2d 42, 1989 Ky. LEXIS 34 ( Ky. 1989 ), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

There is no general automobile exception to the search and seizure provisions of the federal and state constitutions; however, when probable cause to search an automobile is accompanied by exigent circumstances, a warrantless search may be justified, although neither “probable cause” nor “exigent circumstances” alone will justify a warrantless search. Cooper v. Commonwealth, 577 S.W.2d 34, 1979 Ky. App. LEXIS 372 (Ky. Ct. App. 1979), overruled, Mash v. Commonwealth, 769 S.W.2d 42, 1989 Ky. LEXIS 34 ( Ky. 1989 ), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

Evidence seized during a warrantless raid of defendant’s medical clinic should have been excluded as violative of the Fourth Amendment and Ky. Const. § 10 where criminal law enforcement investigators had supplied the information upon which the raid was based and had determined which files were to be seized by the medical board, and a short delay in obtaining a warrant would not have frustrated the governmental authorities involved in the case. Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

Officers’ warrantless entry into defendant’s apartment was not improper where the officers, while in the apartment building’s hallway, smelled a strong odor of burnt marijuana which they believed came from defendant’s apartment, after knocking and announcing the presence of law enforcement heard movement within the apartment, and with no response to the request to open the door, hearing movement within the apartment, and believing that evidence of a felony was in the apartment, the officers believed that the occupants of the apartment might be destroying evidence. Washington v. Commonwealth, 231 S.W.3d 762, 2007 Ky. App. LEXIS 249 (Ky. Ct. App. 2007).

Officers warrantless entry into defendant's apartment did not violate his Ky. Const. § 10 rights where there was a blood trail in the parking lot, defendant was seriously wounded, the debris along the stairs could have been interpreted as additional signs of a struggle, a light was on inside the apartment, the officers' knocks went unanswered, and as a result, the officers had an objectively reasonable basis to believe that medical assistance might be needed in that apartment, thereby justifying their warrantless entry. Goben v. Commonwealth, 503 S.W.3d 890, 2016 Ky. LEXIS 630 ( Ky. 2016 ).

Emergency aid exception did not justify denying defendants' motion to suppress evidence discovered in their apartment where the officers who entered the apartment were not responding to any violence, and there was no evidence of an altercation or injuries. Pace v. Commonwealth, 529 S.W.3d 747, 2017 Ky. LEXIS 389 ( Ky. 2017 ).

29.— —In Plain View.

When search is not required because items sought are in plain view to casual observer, seizure without warrant is legal. Hancock v. Commonwealth, 262 S.W.2d 670, 1953 Ky. LEXIS 1110 ( Ky. 1953 ). See Wilson v. Commonwealth, 258 S.W.2d 497, 1953 Ky. LEXIS 848 ( Ky. 1953 ).

Stolen coat observed in plain view in store of one suspected of receiving stolen goods was legally seized without warrant and was inadmissible. Patterson v. Commonwealth, 252 Ky. 285 , 66 S.W.2d 513, 1933 Ky. LEXIS 1012 ( Ky. 1933 ), overruled in part, Jett v. Commonwealth, 436 S.W.2d 788, 1969 Ky. LEXIS 489 ( Ky. 1969 ).

Where officers were invited into defendant’s room and saw an open paper sack on a coffee table in which officers discovered, on looking into the sack and reaching hand into it, marijuana, there was an illegal search. Nichols v. Commonwealth, 408 S.W.2d 189, 1966 Ky. LEXIS 82 ( Ky. 1966 ).

What cases under the “plain view” doctrine must have in common in order for the seizure to be lawful is that the officer had prior justification for an intrusion in the course of which he inadvertently discovered in plain view a piece of evidence incriminating the accused in which case the doctrine permits a warrantless seizure, serving to supplement the prior justification, whether that justification was a search warrant for another object, hot pursuit, search incident to a lawful arrest, or some other legitimate reason for the officer being present unconnected with a search directed against the accused, but this extension of the original justification for the officer’s presence is legitimate only where it was immediately apparent that he had evidence before him and the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where officers acting on reliable information giving them reasonable grounds to believe the defendant had committed wilful murder entered his apartment, which was unlocked, and upon his return arrested him and took him into a bedroom to observe the possible presence of a confederate in the street below and while there observed in plain view on a table a wallet which they seized and which subsequently was identified as belonging to the deceased, the seizure without a search warrant was lawful since the arrest was a legal one without a warrant under KRS 431.005 and the intrusion was limited and reasonable under the circumstances. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where police officer entered driveway of defendant’s neighbor to make inquiries unconnected with defendant and continued on driveway to defendant’s cabin, reasonably believing neighbor might be there, and where nothing indicated that areas within cabin’s curtilage were not impliedly open to his use, and where officer inadvertently observed motorcycle part in plain view which he had reasonable cause to believe was stolen, his seizure of the part was lawful. Cloar v. Commonwealth, 679 S.W.2d 827, 1984 Ky. App. LEXIS 520 (Ky. Ct. App. 1984).

A determination of whether or not contraband is in plain view should not depend on existing lighting conditions or the time of day; one seeking to maintain his privacy should reasonably expect that persons disposed to look inside a motel room will not hesitate to enhance their visibility by use of a widely available device such as a flashlight. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

Where the officer, attempting to execute a warrant to arrest defendant, saw items used to manufacture methamphetamine in plain view during a search of defendant’s residence with the consent of defendant’s wife, due to the dangers associated with the manufacture of methamphetamine, a warrantless seizure of these items was justified by exigent circumstances. Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

Where police saw, though an open door, packages of marijuana in defendant’s home, exigent circumstances justified their warrantless entry into the home to prevent the imminent destruction of evidence. The fact that possession of marijuana in violation of KRS 218A.1422 was a misdemeanor was immaterial, as defendant faced up to one year’s imprisonment if convicted. Posey v. Commonwealth, 185 S.W.3d 170, 2006 Ky. LEXIS 53 (Ky.), cert. denied, 549 U.S. 842, 127 S. Ct. 85, 166 L. Ed. 2d 73, 2006 U.S. LEXIS 6540 (U.S. 2006).

Seizure of a pipe from defendant’s house did not fall within the plain view doctrine, where the officer who came to investigate a report of an abandoned minor had no right to enter the house based on exigent circumstances, as he had requested entry only after seeing the pipe and had not attempted to find out whether the minor was actually alone, and he had no probable cause to believe the pipe was drug paraphernalia until he picked it up and smelled marijuana. Commonwealth v. Hatcher, 199 S.W.3d 124, 2006 Ky. LEXIS 131 ( Ky. 2006 ).

Plain view exception did not justify denying defendants' motion to suppress evidence found in their apartment where the exception only excused the seizure of evidence, not warrantless searches. Pace v. Commonwealth, 529 S.W.3d 747, 2017 Ky. LEXIS 389 ( Ky. 2017 ).

30.— — Administrative Search.

Police detective’s use of information from the Kentucky all schedules prescription electronic reporting system (KASPER) of KRS 218A.202 to investigate defendant’s possible violation of controlled substance laws was not an unreasonable search and seizure under U.S. Const. amend. IV or Ky. Const. § 10; instead, the administrative search exception to the warrant and probable cause requirements applied because the State had a substantial interest in tracing drug distributions, the KASPER system reasonably advanced that interest, and KRS 218A.202 (6) clearly informed practitioners and patients that the data was subject to limited police inspection and properly restrained officers’ discretion. Thacker v. Commonwealth, 80 S.W.3d 451, 2002 Ky. App. LEXIS 1276 (Ky. Ct. App. 2002), overruled in part, Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

Circuit court properly denied defendant’s motion to suppress information about her which was obtained by a police officer from records in the Kentucky All-Schedule Prescription Electronic Reporting System (KASPER). Defendant had no expectation that her KASPER prescription records were private or subject to protection from unreasonable search and seizure. Carter v. Commonwealth, 358 S.W.3d 4, 2011 Ky. App. LEXIS 82 (Ky. Ct. App. 2011).

31.— — Reasonable and Articulable Suspicion.

Where police officers received word that an apparent theft of a truck was in progress and that a yellow automobile was involved, and almost immediately after obtaining that information, the police officers spotted a yellow automobile within a very short distance of the site of the alleged theft, it was beyond any reasonable challenge that the officers had probable cause to stop that vehicle. Finney v. Commonwealth, 638 S.W.2d 709, 1982 Ky. App. LEXIS 242 (Ky. Ct. App. 1982), cert. denied, 459 U.S. 1176, 103 S. Ct. 826, 74 L. Ed. 2d 1022, 1983 U.S. LEXIS 3257 (U.S. 1983), overruled, Hibbard v. Commonwealth, 661 S.W.2d 473, 1983 Ky. LEXIS 318 ( Ky. 1983 ).

Based on recent thefts at a gas station and the fact that defendant’s vehicle was in its parking lot three times in two hours, under the totality of the circumstances, a police officer had reasonable and articulable suspicion of criminal activity by the occupants of defendant’s vehicle. Therefore, the trial court properly denied defendant’s motion to suppress evidence of his drunk driving obtained pursuant to a traffic stop. Barger v. Commonwealth, 2006 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 4, 2006, review denied, ordered not published, 2006 Ky. LEXIS 318 (Ky. Dec. 13, 2006), sub. op., 2006 Ky. App. Unpub. LEXIS 670 (Ky. Ct. App. Aug. 4, 2006).

Where a detective saw defendant walking along the road, he appeared to be hitchhiking; when defendant saw a marked police car, he left the road, approached a residence, knocked while looking at the police, and attempted to flee when they approached. Defendant’s conduct on the porch furnished the officers with an articulable, reasonable suspicion that criminal activity might be afoot; therefore, defendant was not permitted to suppress evidence of a handgun seized during a patdown search. Akins v. Commonwealth, 2009 Ky. App. LEXIS 199 (Ky. Ct. App. Oct. 16, 2009), review denied, ordered not published, 2010 Ky. LEXIS 429 (Ky. Aug. 18, 2010).

Officers encountered a frantic witness who informed them that defendant was involved in a fracas inside a nearby apartment unit, and as they proceeded through the apartment, defendant was in one of the rooms with defendant’s back-side partially turned toward an officer and with both hands down the front portion of his pants, and all the while another individual was yelling from inside the apartment “It’s in his crotch—it’s in his crotch!”; thus, the officers had a reasonable fear that defendant had a weapon to support their search of defendant’s groin area. Commonwealth v. Marshall, 319 S.W.3d 352, 2010 Ky. LEXIS 182 ( Ky. 2010 ), cert. denied, 563 U.S. 909, 131 S. Ct. 1793, 179 L. Ed. 2d 663, 2011 U.S. LEXIS 2462 (U.S. 2011).

Warrantless search of defendant’s home did not violate his constitutional rights under Ky. Const., § 10, because the officer’s knowledge that there were firearms present in defendant’s home, gained when defendant let the officer in, was sufficient to trigger the requisite reasonable suspicion to justify the subsequent search. Riley v. Commonwealth, 120 S.W.3d 622, 2003 Ky. LEXIS 119 ( Ky. 2003 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ).

32.— —Protective Sweep.

Trial court erred by denying defendant’s motion to suppress evidence of cocaine and drug paraphernalia seized from her apartment, because the protective sweep was illegal under Ky. Const. § 10 and the contraband discovered as the result of this unlawful invasion was fruit of the poisonous tree. Guzman v. Commonwealth, 375 S.W.3d 805, 2012 Ky. LEXIS 84 ( Ky. 2012 ).

Warrantless search satisfied neither the textual directives of federal or state constitution nor the judicially-created exception, and the Commonwealth failed to meet its burden of demonstrating articulable facts that warranted a reasonably prudent officer to believe the area to be swept harbored an individual posing a danger to those on the arrest scene; the order denying the motion to suppress evidence obtained from the protective sweep was reversed. Brumley v. Commonwealth, 413 S.W.3d 280, 2013 Ky. LEXIS 587 ( Ky. 2013 ).

Suppression of defendant's spontaneous utterance was not required because the initial entry of police officers into the residence where defendant was found to arrest a fugitive was consensual, the scope of the protective sweep in the residence was reasonable under the totality of the circumstances, the initial seizure of defendant during that protective sweep was lawful, and the incriminating statement which defendant uttered upon defendant's arrest was spontaneous and not a product of custodial interrogation. Simpson v. Commonwealth, 474 S.W.3d 544, 2015 Ky. LEXIS 1947 ( Ky. 2015 ).

Denying a motion to suppress evidence based on the protective sweep exception to the warrant requirement was error where the arrests made prior to the search of defendants' apartment occurred outside the front of the building, the arrested individuals were detained safely away from the building, and no other factors placed the officers or others on the scene in danger. Pace v. Commonwealth, 529 S.W.3d 747, 2017 Ky. LEXIS 389 ( Ky. 2017 ).

33.—Evidence.

Admissibility of evidence in state court obtained by search under federal warrant was determined by validity of such warrant under federal law, regardless of whether it was valid or not under state law, except that there must have been probable cause for issuance of such warrant as prescribed by state law. Walters v. Commonwealth, 199 Ky. 182 , 250 S.W. 839, 1923 Ky. LEXIS 790 ( Ky. 1923 ), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ).

Evidence obtained under federal warrant was admissible if such warrant was issued under valid affidavit, constituting probable cause as determined under state test. Vick v. Commonwealth, 204 Ky. 513 , 264 S.W. 1079, 1924 Ky. LEXIS 497 ( Ky. 1924 ).

Where justice of peace issued warrant, then led posse in search, such justice could not testify as private person to evidence found thereby since he had become member of search posse. Danella v. Commonwealth, 207 Ky. 660 , 269 S.W. 1011, 1925 Ky. LEXIS 161 ( Ky. 1925 ).

Defendant must make timely objection to evidence introduced under an alleged invalid search warrant to avail himself of its incompetence. Means v. Commonwealth, 256 Ky. 30 , 75 S.W.2d 546, 1934 Ky. LEXIS 347 ( Ky. 1934 ).

Defendant waives legal objections to evidence produced by illegal search where he does not object to testimony at the time it is introduced, he later admits the facts testified to, and he does not rely on this ground in his motion for a new trial. Smith v. Commonwealth, 283 Ky. 492 , 141 S.W.2d 881, 1940 Ky. LEXIS 360 ( Ky. 1940 ).

When accused is originally charged with one offense which is still pending and is subsequently charged with another offense of a different nature, no evidence obtained solely as a result of search made after the arrest for the first charge is admissible in the trial of the second charge until the offender is found guilty at first trial. Taylor v. Commonwealth, 386 S.W.2d 480, 1964 Ky. LEXIS 176 ( Ky. 1964 ).

Since Kentucky’s constitution prohibits unlawful search and seizure, person who does not seek to exclude the evidence under such provision at the time of his trial cannot be heard on a motion to vacate the judgment to say that his conviction is in violation of the federal constitution because of the admission of evidence obtained by an unlawful search. Collier v. Commonwealth, 387 S.W.2d 858, 1965 Ky. LEXIS 487 ( Ky. 1965 ).

By attempting to explain the possession of the property seized the defendant did not waive his claim that it was obtained by an illegal search. Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

Even if the police stopped defendant without the necessary reasonable suspicion of criminal activity, any taint that might have placed on the evidence later seized from defendant was cured by the fact that after stopping defendant, the police determined that there was an outstanding warrant for his arrest, and defendant was arrested pursuant to that warrant. Morris v. Commonwealth, 2008 Ky. App. LEXIS 262 (Ky. Ct. App. Aug. 15, 2008).

34.— —Admissible.

Evidence taken from person of lawfully arrested defendant was admissible. Turner v. Commonwealth, 191 Ky. 825 , 231 S.W. 519, 1921 Ky. LEXIS 390 ( Ky. 1921 ).

Where search of accused’s home was made with valid search warrant, the introduction of his lawful but incriminating articles of clothing together with a white substance found thereon, as evidence of guilt, was free from error, against contention that only property unlawfully possessed or used by accused could be taken. Boles v. Commonwealth, 304 Ky. 216 , 200 S.W.2d 467, 1947 Ky. LEXIS 620 ( Ky. 1947 ).

Where officers watched suspected liquor dispensary in wet territory and saw defendants drive up to rear door, carry out of store and load sacks containing bottles, the officers ascertained that the store sold nothing but liquor in bottles, and they followed car into dry territory before making arrest, the liquor revealed by a search of the car was admissible as evidence in a prosecution under KRS 242.260 because the search was legally made as a result of a misdemeanor committed in officers’ presence. Commonwealth v. Chaplin, 307 Ky. 630 , 211 S.W.2d 841, 1948 Ky. LEXIS 793 ( Ky. 1948 ).

Where warrant under which woodland was searched described appellant’s property on the east side of highway, and after searching the premises of appellant and finding nothing, the officers then searched the woodland across the highway from appellant’s fruitstand and found whiskey, the whiskey was competent evidence against appellant. Powell v. Commonwealth, 282 S.W.2d 340, 1955 Ky. LEXIS 241 ( Ky. 1955 ).

Search made without warrant by police in civilian clothes who purchased liquor from defendant in dry territory while posing as customers was lawful, and liquor seized pursuant thereto was admissible. Staton v. Commonwealth, 307 S.W.2d 570, 1957 Ky. LEXIS 98 ( Ky. 1957 ).

Since this section applied only to searches and seizures conducted in this state, evidence seized illegally in another state was admissible in trial in this state. Young v. Commonwealth, 313 S.W.2d 580, 1958 Ky. LEXIS 270 ( Ky. 1958 ).

Where police arrested defendant for driving without driver’s license and search of car revealed stolen merchandise, such merchandise was admissible in prosecution for burglary notwithstanding absence of trial and conviction of driving offense since defendant admitted he was guilty of such offense. Cole v. Commonwealth, 381 S.W.2d 318, 1964 Ky. LEXIS 319 ( Ky. 1964 ).

Where defendant was observed committing a violation of law that the police had been asked to anticipate, the trial court made findings, pursuant to RCr 9.78, that a police officer was justified in examining defendant’s identification and checking for warrants to investigate defendant’s presence at the scene; as a result, the trial court properly denied defendant’s motion to suppress. Gray v. Commonwealth, 150 S.W.3d 71, 2004 Ky. App. LEXIS 53 (Ky. Ct. App. 2004).

Trial court erred in dismissing defendant’s indictment for the third-degree assault of a police officer because the unlawfulness of the officer’s entry into the residence where defendant was sleeping was not a defense to the assault on the officer; moreover, the evidence regarding the alleged assault by was not tainted by the officer’s unlawful entry and was admissible at trial. Commonwealth v. Johnson, 245 S.W.3d 821, 2008 Ky. App. LEXIS 26 (Ky. Ct. App. 2008).

Defendant’s motion to suppress a gun was properly denied because the gun was not the fruit of any illegal police conduct since it was found along defendant’s flight path, and therefore, it was admissible; defendant was not seized until he was physically apprehended by the police following the chase. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

35.— —Inadmissible.

Where defendant’s suitcase was seized and searched without warrant, evidence thus obtained was inadmissible. Ash v. Commonwealth, 193 Ky. 452 , 236 S.W. 1032, 1922 Ky. LEXIS 29 ( Ky. 1922 ).

Where door opened at knock of officer investigating noise, moonshine thus found inside was not admissible. Simmons v. Commonwealth, 203 Ky. 621 , 262 S.W. 972, 1924 Ky. LEXIS 969 ( Ky. 1924 ).

Where commonwealth failed to produce search warrant or proof of its loss and contents, evidence seized thereunder was inadmissible. Danella v. Commonwealth, 207 Ky. 660 , 269 S.W. 1011, 1925 Ky. LEXIS 161 ( Ky. 1925 ).

Testimony of private citizen as to result of search by police under invalid warrant was inadmissible since such person was present at request of police. Copley v. Commonwealth, 219 Ky. 498 , 293 S.W. 981, 1927 Ky. LEXIS 371 ( Ky. 1927 ).

Liquor discovered by police officer, who claimed to have found it when he opened door of defendant’s car to get out of rain, was taken in violation of this section and was inadmissible. Young v. Commonwealth, 230 Ky. 767 , 20 S.W.2d 730, 1929 Ky. LEXIS 164 ( Ky. 1929 ).

Evidence as to possession of intoxicating liquor obtained by officers who searched defendant’s truck, parked on highway, without a search warrant and without any offense having been committed in officers’ presence, was not admissible. Settles v. Commonwealth, 294 Ky. 403 , 171 S.W.2d 999, 1943 Ky. LEXIS 453 ( Ky. 1943 ).

Where arrest for reckless driving was not justified without warrant, search incident thereto was illegal and concealed weapon found thereby was inadmissible. Cowan v. Commonwealth, 308 Ky. 842 , 215 S.W.2d 989, 1948 Ky. LEXIS 1058 ( Ky. 1948 ). See Gholson v. Commonwealth, 308 Ky. 82 , 212 S.W.2d 537, 1948 Ky. LEXIS 848 ( Ky. 1948 ).

Where police officers, having been informed that handbook was in operation but without a search warrant, entered defendant’s premises by force and through opened door observed handbook in operation, and, upon defendant’s admission that he was making book, arrested him and seized handbook equipment; in prosecution for receiving, making, transmitting or negotiating bets on horse races, the equipment was incompetent as evidence. Willoughby v. Commonwealth, 313 Ky. 291 , 231 S.W.2d 79, 1950 Ky. LEXIS 889 ( Ky. 1950 ).

When sheriff served temporary restraining order on defendant and discovered untaxed whiskey, such discovery was made in violation of this section. Walker v. Commonwealth, 279 S.W.2d 816, 1955 Ky. LEXIS 553 ( Ky. 1955 ). See Koehler v. Commonwealth, 222 Ky. 670 , 1 S.W.2d 1072, 1928 Ky. LEXIS 220 ( Ky. 1928 ).

Whiskey found in defendant’s apartment by officers who were uninvited and had only a warrant for arrest of woman in another apartment on the same floor was obtained by illegal search and was inadmissible in trial for illegal possession of alcoholic beverages. Johnson v. Commonwealth, 296 S.W.2d 210, 1956 Ky. LEXIS 186 ( Ky. 1956 ).

Evidence obtained under a federal search warrant is not admissible unless warrant is valid under federal law. Ratliff v. Commonwealth, 302 S.W.2d 853, 1957 Ky. LEXIS 226 ( Ky. 1957 ).

Evidence was inadmissible where found by search of home upon arrest of wife without search warrant and without evidence of wife’s consent. Benge v. Commonwealth, 321 S.W.2d 247, 1959 Ky. LEXIS 272 ( Ky. 1959 ).

Stolen goods, found in car of defendant and codefendant in search without warrant and without defendant’s consent, were inadmissible in prosecution of defendant as accomplice. Senibaldi v. Commonwealth, 338 S.W.2d 915, 1960 Ky. LEXIS 425 ( Ky. 1960 ).

Evidence found in search of defendant’s car without arrest and without search warrant was inadmissible. Tabor v. Commonwealth, 380 S.W.2d 245, 1964 Ky. LEXIS 296 ( Ky. 1964 ).

In prosecution for homicide, evidence as to the finding of a knife in the course of an illegal search held admitted erroneously notwithstanding the court excluded introduction of the knife itself. Trevathan v. Commonwealth, 384 S.W.2d 500, 1964 Ky. LEXIS 103 ( Ky. 1964 ).

Where after burglary and larceny of goods, officers followed tracks of car leaving scene of th