Commonwealth of Kentucky, Cabinet for Health and Family Services v. Kelsey E. Friend Jr Pike County District Judge

• Court: Kentucky Supreme Court
• Decided: December 19, 2019
• Docket: 2018-SC-0550
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 19, 2019 NOT TO BE PUBLISHED

2018-SC-000550-DG

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES

ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2017-CA-000228-MR PIKE CIRCUIT COURT NO. 17-CI-00058

HON. KELSEY E. FRIEND, JR., PIKE APPELLEE DISTRICT JUDGE

AND

ANGELA BENTLEY AND PATRICK CASEY REAL PARTIES IN INTEREST

MEMORANDUM OPINION OF THE COURT

AFFIRMING

This Court granted discretionary review to review the Court of Appeals’

affirmance of the Pike Circuit Court’s denial of the petition for writ of

prohibition filed by the petitioner, the Commonwealth of Kentucky, Cabinet for

Health and Family Services (“the Cabinet”). In its writ petition, the Cabinet

sought to prevent the Pike District Court from enforcing the show cause order

it issued against Mountain Comprehensive Care Center (“MCCC”), a Cabinet- regulated provider of alcohol and drug education and treatment under KRS1

189A.040, directing MCCC to appear and show cause why it should not be held

in contempt of court for failing to provide court-ordered alcohol and drug

education and treatment to the real parties in interest, Patrick Casey and

Angela Bentley. Because MCCC had the right to appeal any potential contempt

order issued by the Pike District Court, a writ of prohibition is inappropriate.

Therefore, we affirm the lower courts’ denials of the writ petition, albeit on

different grounds.

I. Background.

This case turns on a question of law, the facts are not in dispute, and

only an abbreviated recitation of the case history is necessary. The cases

underlying this one involve criminal prosecutions for DUI against the real

parties in interest, defendants Casey and Bentley, for violations of KRS

189A.010. Both Casey and Bentley entered guilty pleas in Pike District Court

to DUI, first offense. For whatever reason, the district court continued the

sentencing of both defendants but ordered that each complete alcohol and drug

education classes.

When Casey arrived at MCCC to enroll in alcohol and drug education

classes, MCCC contacted the Transportation Cabinet, which found no DUI

conviction of record for Casey in the state database. MCCC offered to perform

a substance abuse assessment on Casey to determine if, and what, level of care1

1 Kentucky Revised Statutes.

2 he needed and informed him that he would be credited for that assessment

upon his DUI conviction. Casey refused services.

When Bentley arrived at MCCC for alcohol and drug education

treatment, she informed MCCC that she had a DUI. Again, when MCCC

contacted the Transportation Cabinet it found no record of a DUI conviction for

Bentley. MCCC informed Bentley that upon her DUI conviction, she would

receive credit for any completed counseling classes, but that MCCC could not

generate a certificate of completion until the state database showed a

conviction of record. Thereafter, Pike District Court Judge Friend scheduled a

show cause hearing, directing MCCC to appear and show cause why it should

not be held in contempt for failing to provide proof of completion to Bentley and

failing to provide the court-ordered classes to Casey.

Approximately three weeks before the scheduled show case hearing, the

Cabinet filed a petition in the Pike Circuit Court for a writ seeking to prohibit

the district court from enforcing its show cause order against MCCC. The

Cabinet argued that the district court acted outside of its jurisdiction by

ordering MCCC to treat the defendants prior to formally sentencing them and,

even if acting within its jurisdiction, the district court’s issuance of the show

cause order was erroneous. The Cabinet asserted that without a conviction of

record, MCCC was not statutorily authorized to perform the act which the

district court ordered, and would be in violation of KRS 189A.040 leading to a

possible revocation of its license by the Cabinet. The circuit court conducted a

hearing on the matter, after which it denied the writ petition, concluding that

3 the defendants’ entry of a guilty plea constituted a “conviction” for purposes of

their eligibility for alcohol and drug treatment and for purposes of authorizing

the district court to order the defendants to seek treatment prior to entering a

final judgment of conviction and sentence.

The Cabinet appealed, arguing that the district court acted contrary to

the plain language of KRS 189A.040(1) which states that, in addition to other

penalties, the court “shall sentence” a defendant to the requisite alcohol and

drug education or treatment program.2 In a 2-1 decision, the Court of Appeals

affirmed the circuit court’s denial of the writ petition, reasoning that since the

district court had subject matter jurisdiction over DUI proceedings and

authority to enforce orders in those types of cases, it did not exceed its

jurisdiction by entering a show cause order against MCCC. The dissenting

opinion observed that KRS 189A.040(1) clearly limits the district court’s action

2 KRS 189A.040 addresses alcohol or substance abuse treatment and programs. It provides, in relevant part: “(1) In addition to any other penalty prescribed by KRS 189A.010(5)(a) or (6), the court shall sentence the person to attend an alcohol or substance abuse education or treatment program subject to the following terms and conditions for a first offender or a person convicted under KRS 189A.010(l)(f): (a) The treatment or education shall be for a period of ninety (90) days and the program shall provide an assessment of the defendant’s alcohol or other substance abuse problems, which shall be performed at the start of the program; (b) Each defendant shall pay the cost of the education or treatment program up to his ability to pay but no more than the actual cost of the treatment; (c) Upon written report to the court by the administrator of the program that the defendant has completed the program recommended by the administrator based upon the assessment of the defendant, the defendant shall be released prior to the expiration of the ninety (90) day period; and (d) Failure to complete the education or treatment program or to pay the amount specified by the court for education or treatment shall constitute contempt, and the court shall, in addition to any other remedy for contempt, reinstitute all penalties which were previously imposed but suspended or delayed pending completion of the education or treatment program.” (emphasis added).

4 in ordering a defendant to alcohol and drug treatment “to the time ‘sentence’ is

imposed, and not prior thereto.” Thus, the dissent opined that the circuit court

“erred in its consideration of whether or not the district court, though acting

within its jurisdiction, had acted erroneously.” Thereafter, the Cabinet

petitioned this Court for discretionary review, which was granted.

II. Analysis.

The “issuance of a writ is an extraordinary remedy that is disfavored by

our jurisprudence.” Caldwell v. Chauvin, 464 S.W.3d 139, 144 (Ky. 2015)

(citation omitted). Further, “the issuance of a writ is inherently discretionary”

and even upon a showing that the “requirements are met and error found, the

grant of a writ remains within the sole discretion of the Court.” Id. at 145-46

(citation omitted).

In reviewing the appeal of a denial of a writ of prohibition, we must

proceed with a two-step analysis:

First, the court must look at whether such an extraordinary remedy is even available, before deciding the merits of the claimed legal error. Second, if the court finds that the remedy is available, it may then look at the merits of the claimed error. And if the trial court has erred or is about to err, the court may issue the writ. Thus, we must first examine whether the remedy is even available.

Dunn v. Maze, 485 S.W.3d 735, 740 (Ky. 2016) (citation omitted).

“In deciding whether the remedy is available, this Court has divided writ

cases into ‘two classes . . ., one addressing claims that the lower court is

proceeding without subject matter jurisdiction and one addressing claims of

mere legal error.”’ Id. (citation omitted). Each writ requires a different

showing:

5 A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004) (emphasis added).

Under either class of writ, a petitioner must make a threshold showing

that the remedy is available, i.e., no other remedy exists through an application

to an intermediate court, by appeal or otherwise. Id. While many reasons have

been advanced in support of and in opposition to the writ petition in this case,

we find conclusive the simple fact that the Cabinet has not satisfied the

threshold showing that the remedy of a writ is even available. See Newell

Enters., Inc. v. Bowling, 158 S.W.3d 750, 757 (Ky. 2005) (holding that “because

almost any contempt finding by the circuit court would be appealable, the

remedy of a writ is inappropriate[]”); Commonwealth ex rel. Dep’t for Nat. Res. &

Envtl. Prot. v. Williams, 536 S.W.2d 474, 476 (Ky. 1976) (holding that an

original action for a writ against enforcement of a contempt order was not

proper because the contempt order was appealable).

Here, an alternative remedy to filing a writ petition existed: MCCC had

the right to appeal the issuance of any contempt order issued by the district

court. Not only did MCCC have an adequate remedy by appeal, the grant of a

writ petition on these facts would be advisory, as no contempt order has yet

been entered and any potential harm to MCCC is purely speculative. Moreover,

6 if a. contempt order was entered and if, because of that order, the Cabinet

revoked MCCC’s license, MCCC had the right to an administrative appeal of the

Cabinet’s action. See KRS 189A.040(8) (“Administrative decisions regarding

the licensure of education and treatment facilities and programs may be

appealed, and upon appeal an administrative hearing shall be conducted in

accordance with KRS Chapter 13B.”); 908 KAR3 1:310 § 10( 1)—(5) (describing

the process and requirements for an administrative appeal under KRS Chapter

13B). While the lower courts’ opinions did not address this threshold

requirement for filing a writ petition, we find it to be dispositive of the case and

need not consider any of the parties’ remaining arguments.

III. Conclusion.

Because MCCC had the right to appeal the issuance of any contempt

order potentially issued by the district court, we affirm the denial of the

Cabinet’s writ petition.

Minton, C.J.; Hughes, Keller, Nickell, VanMeter and Wright, JJ., sitting.

All concur. Lambert, J., not sitting.

COUNSEL FOR APPELLANT:

Matthew Forrest Perdue CABINET FOR HEALTH AND FAMILY SERVICES

COUNSEL FOR APPELLEE:

Not Represented by Counsel

3 Kentucky Administrative Regulations.

7 COUNSEL FOR REAL PARTY IN INTEREST ANGELA BENTLEY:

Steven Goens DEPARTMENT OF PUBLIC ADVOCACY

COUNSEL FOR REAL PARTY IN INTEREST PATRICK CASEY: