RENDERED: NOVEMBER 1, 2018 TO BE
2018-SC-000472-OA
COMMONWEALTH OF KENTUCKY PETITIONER
V. IN THE SUPREME COURT
HONORABLE JOHN R. GRISE, CHIEF RESPONDENT CIRCUIT JUDGE, WARREN CIRCUIT COURT
AND
WILLIAM H. MEECE REAL PARTY IN INTEREST
OPINION AND ORDER BY CHIEF JUSTICE MINTON
DENYING PETITION FOR WRIT OF PROHIBITION
The Commonwealth petitions this Court for a writ to prohibit
enforcement of the trial court’s order authorizing the use of public funds for the
procurement of private-expert assistance in William Hariy Meece’s post
conviction proceedings under Kentucky Rule of Criminal Procedure (RCr)
11.42. We find that the trial court did not abuse its discretion in ordering the
use of public funds and deny the Commonwealth’s petition.
I. BACKGROUND.
A circuit court jury found Meece guilty of three counts of murder, three
counts of complicity to murder, first-degree burglaiy, and two counts of first-
degree robbery and imposed the death penalty. This Court affirmed the resulting judgment? Meece later moved to vacate the judgment under RCr
11.42.2 The trial court judge, Judge John R. Grise, held a status conference,
at which both parties appeared, to determine a briefing schedule and schedule
an evidentiary hearing on Meece’s motion. Following the status conference, the
trial court scheduled an evidentiary hearing for February of the following year.
Meece later requested the use of private experts in proving his RCr 11.42
motion and requested that the proceedings to determine funding for those
experts be conducted ex parte under Kentucky Revised Statute (KRS) 31.185.
After receiving a copy of the trial court’s order scheduling the ex parte hearing,
the Commonwealth objected to the expert-witness request hearing being held
without its participation and moved to vacate the order setting the ex parte
hearing.
The trial court then conducted a hearing in which both parties
participated to determine whether Meece’s public-funds request should be
heard ex parte. The trial court ultimately concluded that KRS 31.185 required
the entire hearing concerning Meece’s public-funds request to be heard ex
parte and denied the Commonwealth’s motion to vacate its earlier order. Two
days later, the trial court heard ex parte Meece’s public-funds request and
issued an order granting in part and denying in part Meece’s public-funding
request.
1 See Meece v. Commonwealth, 348 S.W.3d 627 (Ky. 2011). Having extensively reviewed the record in that case, we limit the background to the facts and procedural history relevant to the writ petition currently before the Court. 2 See Meece v. Commonwealth, 529 S.W.3d 281 (Ky. 2017). Six days later, the Commonwealth filed the petition for a writ of
prohibition that is the subject of this case, arguing that the trial court was
acting erroneously in authorizing the use of public funds. Specifically, the
Commonwealth argues that Judge Grise abused his discretion in holding the
entire public-funds request hearing ex parte and that he instead should have
allowed the Commonwealth to appear at the hearing and contest whether the
private experts are “reasonably necessary” for a full presentation of Meece’s
RCr 11.42 claims. In addition, the Commonwealth contends that the public-
funds request hearing was held prematurely because Judge Grise failed first to
determine that the specific RCr 11.42 claims for which Meece requested the
assistance of experts were sufficient to necessitate an evidentiary hearing.
II. ANALYSIS.
First, we must determine whether the Commonwealth has met the
minimum threshold showing of harm and lack of redressability on appeal to
warrant writ relief. Because we find that the Commonwealth has met this
requirement, we must then determine whether the trial court abused its
discretion in conducting the entirely of the private-expert request hearing ex
parte. We find no error and accordingly deny the Commonwealth’s writ of
prohibition.
A. A writ of prohibition is an appropriate remedy to seek relief in this case. The Commonwealth petitions this Court for a writ of prohibition seeking
to prevent enforcement of Judge Grise’s order for the use of public funds because the Judge acted erroneously in issuing the order. Such a writ is the
proper avenue for relief in this case.^
A writ of prohibition “is an ‘extraordinary remedy’ that Kentucky courts
‘have always been cautious and conservative both in entertaining petitions for
and in granting such relief.’”'* Courts typically “divide[] writ cases into ‘two
classes,’ which are distinguished by ‘whether the inferior court allegedly is (1)
acting without jurisdiction (which includes beyond its jurisdiction), or (2) acting
erroneously within its jurisdiction. ”*5
“Under this second class of cases, a writ ‘may be granted upon a showing
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.”’ 6
In ordering the use of public funds for Meece’s private experts, the trial
court was acting within its jurisdiction. The Commonwealth’s only avenue for
writ relief is upon a claim that, in ordering the use of public funds, the trial
court acted erroneously in a way that would cause the Commonwealth to suffer
great and irreparable injury for which an appeal would not be an adequate
remedy.
3 This Court has previously allowed a writ of prohibition to be used in this manner. See Commonwealth v. Paisley, 201 S.W.3d 34 (Ky. 2006) (granting relief through a writ of prohibition to prevent enforcement of a judge’s order to disburse public funds to pay for an indigent defendant’s expert witnesses because the judge failed to make the requisite findings before issuing the order). Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)). 5 Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005) (quoting Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2010)). ® Newell Enterprises, 158 S.W.3d at 754. (quoting Hoskins v. Maricle, 150 S.W.Sd 1, 10 (Ky. 2010)). 4 Before addressing the alleged error of the trial court, we note that the
Commonwealth has demonstrated the minimum threshold showing of harm
and lack of redressability on appeal. In Commonwealth v. Paisley, this Court
granted the Commonwealth’s writ of prohibition seeking to prevent
enforcement of a circuit court order allowing public funds to be disbursed
under KRS 31.185.7 We determined that the Commonwealth had met the
minimum threshold requirement because it “would be unable to recoup the
funds once they are expended, thereby satisfying the inadequate remedy
requirement,” and, because the facts were capable of frequent repetition, the
Commonwealth would “suffer irreparable injury in the fonn of massive payouts
of funds to indigent defendants seeking private expert opinions.”^
For these same reasons, we conclude that the Commonwealth has met
the minimum threshold showing of harm and lack of redressability on appeal.
We must now determine whether the circuit court is acting erroneously by
ordering the disbursement of public funds.
B. The circuit court did not err in holding an ex parte hearing to determine whether Meece was entitled to state funds for the procurement of private expert testimony. The Commonwealth first argues that Judge Grise is acting erroneously
because he failed to allow the Commonwealth to participate in Meece’s request
for post-conviction public funds under KRS 31.185. That statute, in relevant
part, provides the following:
(1) Any defending attorney operating under the provisions of this chapter is entitled to use the same state facilities for the evaluation of evidence as are available to the attorney representing the
7 201 S.W.3d 34, 37 (2006). 8 Id. Commonwealth. If he or she considers their use impractical, the court of competent jurisdiction in which the case is pending may authorize the use of private facilities to be paid for on court order from the special account of the Finance and Administration Cabinet.
(2) The defending attorney may request to be heard ex parte and on the record with regard to using private facilities under subsection (1) of this section. If the defending attorney so requests, the court shall conduct the hearing ex parte and on the record.
The Commonwealth concedes that, when read together, subsections (1)
and (2) entitle an indigent post-conviction petitioner to an ex parte hearing to
determine whether he may use a private expert witness because the use of
state facilities is “impractical.” But the Commonwealth argues that the trial
court must first determine, in a public hearing and with the Commonwealth’s
participation, whether the use of the requested private expert is “reasonably
necessary for a full presentation of the petitioner’s case.” Thus, the
Commonwealth argues, Judge Grise abused his discretion in ruling on Meece’s
request for private experts without first allowing the Commonwealth to contest
whether the use of private experts was “reasonably necessary.”
Before addressing the issue of whether the “reasonably necessary”
determination must occur ex parte, we first find it necessary to clarify the state
of the law with respect to KRS 31.185 in the post-conviction context.
Specifically, we point out that this Court has never expressly held that ex parte
hearings under KRS 31.185(2) are afforded to post-conviction petitioners,
despite having held that a post-conviction petitioner may be entitled to public
funds under KRS 31.185(1). Because we think our case law and the purpose of
9 KRS 31.185(l)-(2). the statute requires it, we hold now that KRS 31.185(2) applies to post
conviction petitioners.
In Stopher v. Conliffe, this Court first addressed the applicability of KRS
31.185 to post-conviction petitioners, lo There, “[wje focused upon the
‘defending attorney’ language in subsections (1) and (2) . . . and held that the
language evidenced the General Assembly’s intent ‘to limit the use of funds or
facilities allowed under KRS 31.185 to attorneys representing an indigent
defendant at trial.’”We then “flatly declared that ‘KRS 31.185 [in its entirety]
does not apply to post-conviction proceedings.”^2
Shortly thereafter, however, this Court decided Paisleyand appeared to
take a different position. In that case, we reviewed a trial court’s order granting
a post-conviction petitioner’s request for public funds to pay for a private
expert. in so doing, we relied on KRS 31.185(1), despite its “defending
attorney” language, for the proposition that a post-conviction petitioner may be
entitled to public funds for the hiring of an expert witness if the post-conviction
petitioner could show that the use of state facilities was impracticable We held
that the trial court had abused its discretion because it failed to make the
10 170 S.W.3d 307, 308 (Ky, 2005), 11 Hodge v. Coleman, 244 S.W.3d 102, 107 (Ky. 2008) (quoting Stopher, 170 S.W.3d at 308). 12 Hodge, 244 S.W.3d at 107 (quoting Stopher, 170 S.W.3d at 308). 13 201 S.W.3d at 34. 14 Id. at 35-36. 15 Id. at 36. 7 “impractical” determination before granting the petitioner’s request. We did so
without discussing StopherA^
Then, in Hodge v. Coleman, we reconciled the two cases by explaining
that Stopher involved an expert witness request by a post-conviction petitioner
before a court of competent jurisdiction had determined that the underlying
RCr 11.42 claim had set forth allegations sufficient to warrant an evidentiary
hearing. “In Paisley, however, the trial court had already determined that the
petitioner’s RCr 11.42 motion could not be resolved without an evidentiary
hearing.”^^ Read together, we explained, the two cases “jointly hold that an
indigent post-conviction petitioner may not receive public funds under KRS
31.185 unless a court of competent jurisdiction, whether at the trial or
appellate level, has determined that the post-conviction petition sets forth
allegations sufficient to necessitate an evidentiary hearing.”Thus, we
explained, “to the extent that Stopher holds that KRS 31.185 is never available
as an avenue for indigent post-conviction petitioners to obtain public funds,
Stopher is overruled.”’^
While Hodge involved a request for public funds to pay travel expenses
for out-of-county witnesses, and not a request for a private expert witness, the
case still left Paisley entirely intact. So a fair reading of Hodge suggests that
KRS 31.185(1), despite the “defending attorney” language, applies in the
context of post-conviction petitioners, provided that the trial judge first
16 Id. 17 Hodge, 244 S.W.3d at 107. 18 Id. at 108. 19 Id. 8 determines that the petition sets forth allegations sufficient to necessitate an
evidentiary hearing. While it is not clear whether Hodge overruled Stopher to
the extent that both subsection (1) and (2) would now apply to post-conviction
petitioners, we now clearly state that it does. Therefore, the ex parte hearing
afforded in subsection (2) applies in this context. It would seem nonsensical to
allow a criminally accused person access public funds established in KRS
31.185, subject to the “impractical” requirement in subsection (1), but to not
afford them the ex parte hearing in subsection (2) to make his request. We
simply do not think this was intended by the Hodge court.
To hold otherwise would also conflict with the purpose of KRS 31.185.
The purpose of that statute is to ensure that indigent criminal defendants are
placed on equal footing with non-indigent defendants, who are not required to
go through an adversarial hearing to determine if they can hire an expert
witness to help present their case. This is evidenced by the fact that the statute
is included in KRS Chapter 31, which established the Department of Public
Advocacy in an effort to ensure fair representation of indigent persons who are
criminally accused.^® By requiring indigent petitioners to defend, in an
adversarial proceeding against the Commonwealth, their requests for the use of
private experts, while not requiring the same of non-indigent petitioners, this
Court would be going directly against the purpose of KRS 31.185.
Further, this result is consistent with this Court’s view that the trial
court bears the responsibility to guard against unnecessary and unjustifiable
20 See KRS 31.010 (establishing the “Department of Public Advocacy, in order to provide for the establishment, maintenance, and operation of a state-sponsored and controlled system for . . . [t]he representation of indigent persons accused of crimes or mental states which may result in their incarceration or confinement expenditure of public money in the context of expert witness requests under
KRS 31.185. In Hodge, for example, we explained that “the trial courts in the
Commonwealth have the inherent authority to control the proceedings before
them to eliminate unjustifiable expense and delay.”21 We specified that “[t]his
inherent authority includes discretion to examine the post-conviction petition
and the list of proposed witnesses ... to determine what is reasonably
necessary for those petitioners to fully present their claims.”22 While the
Commonwealth may play this role in certain contexts,23 that cannot be true
here because the legislature has expressly provided for the authorization of
public funds without the Commonwealth’s participation.
Therefore, because both the purpose of KRS 31.185 and our case law
construing the statute in the post-conviction context require it, we now hold
that KRS 31.185(2) applies to post-conviction petitioners and makes available
to them an ex parte hearing to determine whether they are entitled to public
funds for the procurement of private expert witnesses.
Thus, we now turn to the Commonwealth’s meiin argument: the
determination of whether an expert witness is “reasonably necessary for a full
presentation of the petitioner’s case” is not subject to the ex parte requirement
under KRS 31.185(2). We disagree with the Commonwealth and hold that both
the “reasonably necessary” determination and the “impractical use”
deteraiination are subject to the ex parte requirement in subsection (2).
21 244 S.W.3d at 108. 22 Id.
23 The Commonwealth cites to Commonwealth v. Cambron, 546 S.W.3d 556, 566 (Ky. App. 2018) to support its position that it is “the Commonwealth’s role in the criminal justice system to protect against public funds being wasted.”
10 In Mills V. Messer, this Court first explained that an indigent post
conviction petitioner “may be entitled to state funds for the procurement of
expert testimony upon a showing that such witness is reasonably necessary for
a full presentation of the petitioner’s case.”24 Shortly thereafter, this Court
clarified in White v. Payne that the “reasonably necessary” standard must be
“applied in conjunction” with KRS 31.185(l)’s “impractical use” standard.
So, to authorize the use of public funds for the procurement of a private-expert
witness, “the trial court must determine whether the [state expert facilities] are
impractical and whether a private expert is reasonably necessary.”^®
As previously discussed, KRS 31.185(2) mandates that the determination
of whether private facilities will be authorized must occur ex parte if the
petitioner so requests. The question of whether this hearing includes the
“reasonably necessary” determination is a matter of statutory interpretation. In
so doing, “[w]e have a duty to accord to words of a statute their literal meaning
unless to do so would lead to an absurd or wholly unreasonable conclusion.”27
Accordingly, we must first look to the text of the statute, and “if the language is
clear, our inquiry ends.”28
24 268 S.W.3d 366 (Ky. 2008) (emphasis added). 25 332 S.W.3d 45, 49 (Ky. 2010). 25 White V. Commonwealth, 500 S.W.3d 208, 212 (Ky. 2016) (emphasis in original). 27 Cosby V. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004). 28 University of Louisville v. Rothstein, 532 S.W.3d 644, 649 (Ky. 2017). We have long recognized that “[t]he plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source.” Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005) (quoting Ronald Benton Brown 8B Sharon Jacobs Brown, Statutory Interpretation: The Search for Legislative Intent § 4.2, at 38 (NITA 2002)). 11 The plain wording of KRS 31.185 suggests that the entire determination
of whether an indigent petitioner is entitled to state funds for the procurement
of private experts—including both the “reasonably necessary” and “impractical”
determinations—may be conducted ex parte if the petitioner so requests.
Subsection two provides that the petitioner “may request to be heard on the
record with regard to using private facilities under subsection (1). . . .” While
subsection (1) provides that the trial court may authorize the use of private
experts only if the defending attorney considers the use of state facilities
impractical, it is clear from the broad language in subsection (2) that the ex
parte hearing is not limited to this determination alone. Rather, we believe the
reference in subsection (2) “with regard to using private facilities,” manifests
the legislature’s intent that the entire request for the use of private facilities be
heard ex parte.
The Commonwealth argues that the “reasonably necessaiy” issue may
not be heard outside its presence because the trial court is not “expressly
authorized by law” to do so. To support this position, the Commonwealth cites
to Supreme Court Rule (SCR) 4.300, Canon 2.9(A)(5), which provides that “[a]
judge may initiate, permit, or consider any ex parte communication when
expressly authorized by law to do so.” The Commonwealth argues that because
the determination of whether the petitioner’s private expert is “reasonably
necessaiy” is not specifically designated in the statute as being an issue that
may be heard ex parte, and is instead a judge-made requirement. Judge Grise
is not “expressly authorized by law” to make that determination without the
Commonwealth’s input.
12 We disagree. As previously noted, the “reasonably necessary” -
determination is included within the determination of whether the indigent
petitioner is entitled to “use[] private facilities” under KRS 31.185. So, while the
statute does not specifically state that the “reasonably necessary” issue is one
that may be heard ex parte, it certainly provides the trial court with the
necessary authorization required by SCR 4.300 by allowing the entire
determination to be heard ex parte.
The Commonwealth also argues that because a trial court’s
determination to grant public funds under KRS 31.185 is reviewed for an
abuse of discretion, it must be permitted to participate in the public-funds
request hearing in order “to determine whether to contest any [subsequent]
order or on what grounds to do so.” While it is true that these orders are
reviewed for an abuse of discretion, nothing would stop the Commonwealth
from challenging those orders claiming the trial court failed to make the
requisite findings—the “reasonably necessary” finding, for example—in issuing
the order.29 In fact, the Commonwealth has previously been successful in
challenging public-funding orders on these grounds.
29 In his Response to Petition for Writ of Prohibition, Meece argues that that the Commonwealth lacks standing to contest a trial court order authorizing the use of public funds for the procurement of an indigent petitioner’s private expert. We note that this Court has previously assumed that the Commonwealth has standing in these issues but has not definitively ruled on this issue. See, e.g., Paisley, 201 S.W.3d at 37 (granting the Commonwealth’s writ of prohibition without discussing the issue of standing). We again indulge this assumption for the sake of determining the scope of ex parte hearings under KRS 31.185. 39 See Paisley, 201 S.W.3d at 34 (Ky. 2006) (granting the Commonwealth’s writ to prohibit a trial judge’s order granting an indigent petitioner’s request for public funds because the judge failed to make the “requisite showing the use of state facilities was somehow impractical . . .”). 13 The Commonwealth also argues that the type of information needed to
resolve “the ‘reasonably necessary’ issue is the type of expert witness sought, a
rough sketch of the areas to be explored, and the specific RCr 11.42 claim the
witness’s opinion would support.” These disclosures, the Commonwealth
argues, would not “require an indigent inmate to disclose to the
Commonwealth what it should not disclose.” Even further, the Commonwealth
argues, the need for complete secrecy regarding this type of information is
rendered non-existent because the movant in an RCr 11.42 post-conviction
proceeding is required “to state specifically the grounds in which the sentence
is being challenged.”31 Because the experts will be retained for the purpose of
supporting “already raised and identified claims,” the Commonwealth argues,
there is no need for this information to remain secret.
We disagree. As previously discussed, the purpose of KRS 31.185 is not
simply to provide an indigent defendant with “total secrecy” in requesting
public funds for expert witnesses. Instead, the purpose is to situate equally the
indigent and the non-indigent criminal defendants in presenting their case,
whether before or after a conviction. While complete secrecy may not be
required in the context of an RCr 11.42 motion, requiring indigent petitioners
to prove in an adversarial proceeding that their request for a private expert is
“reasonably necessaiy,” while not imposing the same requirement on non-
indigent petitioners, would undoubtedly frustrate this purpose.
In sum, the plain language and purpose of KRS 31.185, combined with
our case law, makes clear the ex parte hearing afforded to indigent criminal
31 RCr 11.42(2). 14 defendants in KRS 31.185(2) also applies to post-conviction petitioners in the
context of RCr 11.42 motions. Further, the petitioner’s right to request an ex
parte hearing under that statute applies to both the trial court’s determination
of whether the use of state facilities would be “impractical” under KRS
31.185(1) and whether the use of a private expert witness is “reasonably
necessary” for a full presentation of the petitioner’s case. Accordingly, we find
that Judge Grise did not abuse his discretion in conducting ex parte the
entirety of Meece’s private-expert funding request.
C. The circuit court’s hearing to determine whether Meece was entitled to public funds for the procurement of private experts was not premature.
The Commonwealth also argues that the circuit court erred in
conducting the ex parte hearing because it failed first to rule that the claims for
which the expert witnesses were requested warranted an evidentiary hearing.
In Hodge, this Court explained that the “threshold requirement for an
indigent post-conviction petitioner to receive funds under KRS 31.185 is for a
court of competent jurisdiction to order that a hearing be held on the
allegations contained in the petition.”^2 The Commonwealth acknowledges that
the trial court had previously scheduled for February of the following year an
evidentiary hearing concerning Meece’s RCr 11.42 claims. Nevertheless, the
Commonwealth argues that the trial court erred in scheduling the expert-
witness hearing because “the order setting [the evidentiary] hearing does not
identify any claims that require [an expert witness] hearing or that will be the
subject of the upcoming [evidentiary] hearing.” Without specifying which claims
32 Hodge, 244 S.W.3d at 108. 15 were to be heard at the evidentiary hearing, the Commonwealth argues, the
expert-witness hearing could result in “the distribution of public funds for an
expert witness for a claim that is later determined to be refuted by the record.”
We disagree. Hodge requires that the trial judge first order that an
evidentiary hearing be held on the allegations contained in the post-conviction
petition before authorizing public funds under KRS 31.185. Judge Grise did
exactly that. While the order setting a date for an evidentiary hearing does not
specifically enumerate the claims to be heard, the trial court had not
determined that any of Meece’s claims did not have sufficient merit to require a
hearing. It is clear the trial court satisfied the threshold requirement that a
hearing be set with respect to any claims for which Meece had requested
private experts. Accordingly, we hold that the minimum requirement set forth
in Hodge has been met and the trial court did not abuse its discretion in
holding an ex parte hearing to consider the use of public funds for Meece’s
private experts.
III. CONCLUSION.
In sum, because the determination of whether Meece’s requested private
experts was reasonably necessary for the full presentation of his case may be
heard ex parte, and because the trial court first determined that the Meece’s
post-conviction petition set forth allegations sufficient to necessitate an
evidentiary hearing, we hold that the trial court did not abuse its discretion in
conducting an ex parte hearing and granting Meece’s request for the use of
state funds for the procurement of private experts. Accordingly, we deny the
Commonwealth’s petition for a writ of prohibition.
16 The Commonwealth’s Emergency Motion for Immediate Relief, in which it
sought to prevent disbursement of public funds under Judge Grise’s order, is
hereby dismissed as moot.
IT IS SO ORDERED.
AU sitting. All concur.
ENTERED this 1st day of November 2018.