*1 Mining Corp., Hill v. Sextet See work. 503, con-
Ky., 65 S.W.3d We therefore,
clude, findings support
were made were sufficient to totally
conclusion that the claimant was
disabled. argument final is employer’s meaningful appellate it was denied interlocutory of the award
review ALJ’s that the claimant
TTD benefits. It asserts irrepa
failed to would suffer show she pending
rable harm a final decision on her 25:010E,
claim 803 KAR
§ 10 and that it had no recourse. We however,
note, period during interlocutory TTD benefits were or
which period perma
dered fell of the within disability. of the fact
nent total view employer given
that the credit for paid, that it had we conclude
compensation concerning propriety question
that its interlocutory award is moot. decision Court
affirmed.
All concur. COLLEGE; Adams; Michael
CENTRE Reigelman; McGuigan
Milton Julie Gary Grewe;
King; Richard
Bugg, Appellants, TRZOP, Appellee.
Peter
No. 2000-SC-1102-DG. Kentucky.
Supreme Court 18, 2003.
Dec. Modified 2004.
As Jan. Rehearing
As Modified on Denial
March 2004. *2 Tur- Haynes, Michelle Gregory
Kenneth Combs, Louisville, ner, & Wyatt, Tarrant Chenoweth, Law Of- L. Chenoweth Robert Frankfort, Appellant. fice, Counsel for Marshall, Lexington, Counsel R. David for Appellee.
GRAVES, Justice.
FACTS institution of is a Danville, Ken- located higher education Centre, junior while a tucky. for Trzop was dismissed Appellee, Peter deadly weapon in his dor- of a possession he was found mitory Specifically, room. a survival knife with possession in his have length, a direct five inches a blade over Handbook. violation of the Centre Student meeting, point prior tion. At some possession prohibits The Handbook students, dismissal, stipu- Reigelman prepared a letter dangerous weapons conse- possible weapon is a in the event a contingency lates that dismissal weapons. fact, was, of such quence found. *3 Trzop’s owner- Centre became aware room revealed three Trzop’s A search of Pokorny, of the knife after Jim ship large Army and one pocket-type knives roommate, informed students Mike Trzop’s over five inches survival knife with blade Szymanski, girl- and Snarr’s Snarr Janine search, Reigelman long. Following the friend, Trzop in which of a conversation accompanied Trzop after his class and met to harm Po- stated that he wanted Snarr. present him to a conference room. Also korny Trzop wanted to ob- recounted McCune, campus McGuigan, were and two authority wherein he position tain security request- had Reigelman officers. away it.” “get kill and with could Snarr present ed that to assess McCune be deposition that Szymanski stated in her state, Trzop’s as the likeli- emotional very seriously because took the threats she harm him- attempt hood that he would changes and Trzop’s recent behavioral others if dismissed. self or fact, Szymanski In isolation from friends. that some Trzop informed McGuigan that she went to her
was so concerned about threats he complained students had Brown, and, Dr. psychology professor, made, weapon that a had been had and names, informed him of providing without his room. during a search of found advice of Dr. Following the threats. of threats and deny allegation did not Brown, the Dean of Szymanski went see ownership of the acknowledged explicitly Students, Nancy Lackey. Upon learning survival knife. town, Szy- Lackey out of that Dean (now McGuigan manski informed Julie Trzop the Reigelman gave thereafter and King), Director of Student Activities Reigelman later stated letter of dismissal. Life, Szymanski situation. Greek carefully chosen word “dis- that he had safety her she was afraid for reported that missal,” suspen- opposed expulsion safety of Mike Snarr.. order to sions, drafting the letter in when that would remove take immediate action Milton immediately contacted McGuigan the situa- and defuse campus Reigelman, Centre Vice-Presi- tion, Trzop could later hope with Snarr, dent, met with who and the two explained to Reigelman return Centre. report and stated Szymanski’s confirmed if he be readmitted Trzop that he could “large knife” Trzop had a that he believed and evalu- psychiatric treatment agreed McGuigan Reigel- possession. in his Additionally, by Centre. specified ation as advice of Jane sought thereafter man Trzop’s “attitude” required that McCune, specialist health a mental consider re- change it would before Center, Mental Health Bluegrass Regional quest for re-admission. danger the potential the level of to assess advised them to posed. McCune situation Boyle in the filed suit police. contact the Court, pro- his due claiming that Circuit violated Centre. rights had been with Dean cess consulting by telephone After adequate given that he was not alleged He McGuigan deter- Lackey, Reigelman meeting, pre-dismissal notice of room should Trzop’s mined that him- to defend opportunity denied the meet with was they should searched and self, on his behalf. call or to witnesses the situa- him after the search discüss thereof (1) and a violation private colleges a contractual complaint asserted: (2) under KRS claim; statutory hable could make Centre process a state due (3) 446.070; 164.947 re- Specifically, 446.070. process claim via KRS colleges be licensed. non-public quires claim via constitutional due (4) to the stat- 1983; adopted pursuant Regulations § a defamation U.S.C. non-public that to be licensed require ute claim.1 proce- policies and college must establish court en- February receive that ah students to ensure dures summary judgment in favor of Cen- tered KAR 1:020 Section trial court found College. tre 7(ll)(h). claim contractual due *4 trial the Appeals the Cen- reversed as a matter of law because The Court failed decision, finding that KRS 164.945- expressly prohibit- tre Student Handbook court’s uni- colleges and and dangerous weapon apply of a to all state ed 164.947 versities, It also college public private. to the adminis- and clearly “reserve[d] both in- to sanctions 13 KAR 1:020 Section tration the invoke concluded that 7(ll)(h) that, judi- for the student as a condition cluding requires [outside dismissal college diplomas ciary process] being in unusual circumstances.” to bestow licensed Further, students, non-public college trial court KRS must es- found ah legally whereby claim because no policies procedures 446.070 deficient and tablish alleged was to have been ensured due state statute students are that, “the regulations upon ultimately and the relied held Appeals violated Court in private colleges a claim support could such law students entitles case, any proceed- negligence. any disciplinary the absence of in due however, in favor summary judgment the trial court found due ing,” and thus was, fact, provided Trzop, College improper. in so was Centre of Centre discretionary re- Finally, sought regulatory there was no violation. thereafter trial court ruled as a matter of law that For the reasons set view in this Court. arbitrary herein, of the College did not act reverse the decision forth we manner: and reinstate capricious Appeals Court of summary judgment. court’s order circumstances, totality Given compel order on its Centre’s others
campus, duty protect and the ARGUMENT community-the administra- college NOT AUTHOR- I. 446.070 DOES KRS and fair. tion’s conduct was reasonable FOR A VIOLA- IZE RECOVERY good It faith that is evidence AN ADMINISTRATIVE TION OF plaintiff letter of dismissal referred the IN THE CONTEXT REGULATION readmission; procedure OF THIS CONTROVERSY. faith that good is further evidence of 446.070 states: KRS college commenced meet- Trzop and re- ings regarding and communications recovery Penalty no to civil bar [following Trzop’s dismissal.] admission injured by the violation person A offender may recover from the statute Trzop again argued appeal, On by reason he sustained regula- damages and related KRS 164.945-164.947 violation, penalty although process requirements impose tions process claims. mation and constitutional January the defa- 1. In dismissed 566 violation, Adm’x, violation. v. Lovell’s Allen imposed for such
forfeiture (1946). added) 238, 197 For Ky. S.W.2d (emphasis instance, applied has been this rule accepting Trzop’s argument KRS of action on behalf of recognize cause colleges to all state apply 164.945-164.947 building apartment fire victim where that KAR 1:020 private) (public by the adequate exits as lacked 7(ll)(h) require § thereunder promulgated Code, Higgins Investments Building Centre, estab- such as private colleges, Sturgill, Ky., v. 509 S.W.2d Inc. whereby all procedures policies lish (1974), a cause of action recognize and to process, are ensured due students a tenant visiting of a child on behalf concluded that he could Appeals Court of child scalded as the result when the 446.070 for Centre’s recover under KRS Code, Plumbing of a violation of the Kentucky’s administra- alleged violation Williams, Ky., v. 458 S.W.2d Rietze regulations adopted pursuant tive 164.945-.947. upon relied this
The Court of
Id. at 333.
Grayson
Fraternal Or-
Court’s decision
Rietze,
that in
su-
point
out
We
Ky., 736
Eagles
Claywell,
der
S.W.2d
*5
“Adminis-
predecessor
our
court held
pra,
fact,
concerned
Grayson
adopted
regulations, properly
trative
shop negligence liability,
the issue of dram
law,
and effect of
KRS
filed have the force
not
of KRS 446.070
applicability
13.081,
by
Judge
and as observed
Chief
regulations.
of administrative
violations
Co. v. Ham-
in Home Insurance
Swinford
Furthermore,
the viola-
Grayson involved
ilton,
(E.D.Ky.1966),
F.Supp.
244.080,
statute,
not an
a
KRS
tion of
why they should be
is no reason
there
regulation. Nowhere
administrative
aspect here
differently, in the
considered
explicitly state
Grayson does this Court
or ordinances.”
presented,
from statutes
to violations of
applies
446.070
However,
Rietze,
supra,
at 617.
only ref-
regulations. The
administrative
upon KRS
predicated
decision was
Rietze
as follows:
erence to the statute is
As
13.0812,
in 1974.
repealed
which was
no bar
styled, “Penalty
is
KRS 446.070
such,
insofar as
hereby
is
overruled
Rietze
provides
It
recovery.”
“[a]
civil
for the
[repealed]
it relies on KRS 13.081
injured by the violation
person
allows recov-
that KRS 446.070
proposition
from the offender
may
statute
recover
regu-
of an administrative
ery for violation
by reason
damages as he sustained
such
lation.
violation,
penalty
or
although
regu
Kentucky,
administrative
violation.”
imposed for such
forfeiture is
of law
force and effect
lations do have the
permit
is to
of this statute
purpose
duly promulgated
they have been
of a when
injured by the violation
person
enabling legis-
with the
and are consistent
damages by reason
statute to recover
Stat-
chapter
Revised
regulations
13 of
Agencies may adopt
Ef-
2. 13.081.
utes,
regulations shall have the
such
fect Limitation'—
force of
by all law enforcement
be enforced
by
law and
provided
law each
otherwise
Unless
instance,
power
regulations
every
may adopt
other
agency
reasonable
officers. In
implement
partic-
the functions
implement
regulations
adopt
administration
law,
adopt
by
shall
assigned
by
terms of the
ular function is limited
necessary
proper
regulations as are
authority
the. function
grant
under which
prepared
If
those functions.
execution of
assigned.
provisions
with the
and filed in accordance
private
rights
Hamilton,
imposing
All
at 755.
supra,
lation.
extensions
colleges, are unwarranted
recovery
regulatory
supporting
cases
they do
Accordingly,
enabling act.
safety
their
regulations
violations
involve
446.070
recovery under KRS
of not authorize
to the exact mandate
adopted pursuant
with their
they are not consistent
su-
because
enabling
Grayson,
statute. See
their
Rietze,
as
Hamil-
supra;
enabling legislation
Higgins,
supra;
pra;
ton,
Hamilton,
supra.
statutes under
supra. The
spe-
regulations were enacted
which those
COLLEGE,
A PRI-
AS
II. CENTRE
safety of citizens.
cifically provided for the
INSTITUTION,
RE-
NOT
IS
VATE
Therefore,
safety regulations
violated
QUIRED
AFFORD TRZOP
TO
their
consistent with
in those cases were
IFAS
DUE PROCESS
THE SAME
and were not
unwar-
enabling statutes
OR
A PUBLIC SCHOOL
IT WERE
thereof.
expansion
ranted extension or
ACTOR.”
ANY OTHER “STATE
only
specif-
in this
Historically, it has been
private
institu
College is
safety regulations that
public
ic context of
such, it
learning. As
higher
tion of
446.070 to
has allowed KRS
the Court
same rules and stan
constrained to the
regu-
of administrative
extend to violations
or institutions.
public
as
schools
dards
lations.
Kentucky courts have been
Historically,
matter, however,
In the instant
the ex-
private
rights
to restrain the
reluctant
college licensing
stat-
press purpose of
impose
discipline, regulate,
colleges
interpreted
requiring
ute cannot be
Ken
upon their students. See
restrictions
disciplinary
in a
school’s
Bramblet,
Ky.
tucky Military Inst. v.
Rather,
Declaration
express
actions.
*6
(1914);
205,
808,
v.
809-810
Gott
164 S.W.
is:
of Intent for KRS 164.945-164.947
376,
204,
Ky.
161 S.W.
College,
Berea
156
promote
opportu-
To
and to enhance the
(1913);
Theological Semi
Lexington
206
nity
higher
education in
Vance,
11
Ky.App.,
v.
596 S.W.2d
nary
to bona
giving recognition
approval
(1979).
pro-
colleges
fide
and universities as
tection to such bona fide institutions
addition,
Su
the United States
protection
as a
to the citizens
that “a school
has made clear
preme Court
against
agencies
those
Commonwealth
institution,
courtroom
not a
is an academic
and institutions of whatever name
due
hearing room” and
or administrative
to fraudulent
organization which resort
concept
therein.
process
is a flexible
or sub-
practices,
competition,
unfair
Mo. v. Horo
Univ.
Board Curators of
of
programs.
standard education
948,
witz,
78, 89, 98
55
435 U.S.
S.Ct.
(1978). Furthermore, even
124
L.Ed.2d
purpose
The main
KRS 164.945-164.947
agrees
college specifically
recognition
private
of when
is to bolster
name
it
not neces
process,
due
does
higher
provide
institutions of
the Commonwealth’s
panoply of
sarily subject itself to the entire
protecting the Common-
learning while
requirements that would
fraudulent or sub- due
wealth’s citizens from
state-sponsored
at a
education
applicable
standard educational
institutions.
Univ., 440
Emory
any institution.
Jansen
provide
require
does not
for or
statute
(N.D.Ga.1977),
1060,
aff'd.,
1062
F.Supp.
disci-
process requirements
within the
Cir.1978).
(5th
also, Hen
See
tic 45, college to exclude “the reserves 337 S.E.2d 48 any time whose conduct or students III. DID NOT VIOLATE ITS CENTRE regards influence as undesirable. No TRZOP FOR
CONTRACT WITH assigned.” further reason need be HIM TO PROVIDE FAILURE an education A contract between DUE PROCESS. only enforce al and a student is institution relationship pri between long complies able as the student so can be char college vate and its students Lex regulations. rules and college’s contractual nature. acterized 14. Seminary, supra, at ington Theological Therefore, disciplined who are students Therefore, guaranteed if even Centre had only procedural to those safe are entitled such was rendered process, specifically guards school which comply after failed unenforceable Upsilon Psi v. Uni agrees provide. Trzop inten with Centre’s rules. When 604, Pa., Pa.Super. 404 591 versity of knife in violation of tionally possessed a 755, (1991), Boehm v. (quoting A.2d he express prohibition, breached Centre’s Veterinary University Pa. School and therefore ex his contract with Centre Medicine, Pa.Super. 573 A.2d performance on the col cused further (1990)). also Holert v. Universi See lege’s behalf. 1294, 1301 ty Chicago, F.Supp. Further, there is no absolute (N.D.ILL.1990). Indeed, both college’s in a to due agreed in court and the Court of the student ad disciplinary action when that a contract existed between this case justify his necessary to course, charges mits the Trzop. “Of case, Trzop In the instant punishment. contractually college the fact that of the survival acknowledged ownership provide procedural safe obligated to appli knife. This admitted violation what merely begs question guards Catalog justi cable Student Handbook v. Mid promised.” has Fellheimer been from the col immediate dismissal fied his F.Supp. dlebury College, 869 *7 fact, admits the a student (D.Vt.1994). lege. In where no need to against him there is charges Trzop, Centre nev- In “contract” its the hearings further or allow stu conduct to due guaranteed er pres or to opportunity explain an dent fact, Handbook the Centre Student See, of the facts. ent his own version may be that such clearly states Sorrell, F.Supp.2d v. Pirschel certain circumstances: withheld in Univ., 126 (E.D.Ky.1998); Stone v. Cornell ordinarily disci- students are Although (1987) (no A.D.2d 510 N.Y.S.2d in- judicial process through the plined student admitted hearing to a where Judiciary or the volving Student alcohol which were drugs Intrafra- committees of the executive dismissal” under for immediate “grounds Asso- ternity or the Panhellenic Council Conduct). Code of may ciation, college administration we find that Accordingly, including dismissal sanctions invoke summary judgment granting court’s order in circum- College unusual from the proper was confidentiality, in favor stances. The need material issues of action, genuine were no protection there or for for immediate entitled College was fact and Centre such action. might prompt others college Trzop made with judgment as a matter of law. officials was Steelvest Center, search letter was Ky., performed, was Scansteel 807 S.W.2d Service formally such, prepared signed, As we the deci- when reverse college. Trzop dismiss from the Without sion of the Court and reinstate roommate, Trzop or his giving notice Boyle Circuit Court. judgment pocket- and three their room was searched LAMBERT, C.J., COOPER, military knives and issue knife were JOHNSTONE, WINTERSHEIMER, military Trzop found. testified J.J. concur. part knife was of his National Guard equipment and that he had store it on STUMBO, J., separate dissents in a duty. was called for campus the event he KELLER, J., joins. opinion in which testimony college indi- Other officials STUMBO, Dissenting. Justice they necessary cate that not feel did supervise Trzop either or warn other stu- Respectfully, I must dissent. The ma- during days dents about him the two be- jority opinion important skims over facts alleged tween notification of the threat and ignores legal analyses relevant Trzop. the dismissal of Centre then re- are vital the resolution of this case. quired with various Trzop to meet admin- First Appellant, the facts: member of personnel, including the acting istrative Guard, the National enrolled in Centre campus security Dean of offi- Students College. permission He had from the Col- cers, regarding present the knife. Also lege to guard continue with his service. of a meeting employee mental was Appellant in campus became involved ac- health claims in its agency, whom Centre tivities and was active in efforts improve brief, help assessing was “to there student testimony conditions. There is mental state.” was not in- the record that some members the ad- formed that under a mental he was health challenged ministration had his efforts and time, examination nor did at the he con- even suggest went so far as to that he sent to such or examination. evaluation if college transfer to another he didn’t given any warning was not advance cease his activities. the spring semes- removed from meeting, but was ter of Trzop’s junior year, girlfriend officers, by campus security class who es- an acquaintance informed her meeting, corted him seated that Trzop had made threats physical him during themselves side of on either against boyfriend. violence her The stu- meeting. Trzop asserts that offi- these dent claimed that she was for her afraid leaving the prevented cers him from meet- boyfriend’s safety because she told ing. that he had a knife. *8 complaint, During this mak- Following person- meeting, Trzop Centre the denied student, police ing any any nel contacted a local other against officer to seek threats his, advice enforcement. was admitting from law The record while that the knife was City police reflects Danville his required part gear that of National Guard and was a father, gift the witness to in and from served the complaining come his who in Trzop’s parents make complaint they military. a formal before United States no investigate complaint meeting and that were notified of the nor neither was that he personnel present. Trzop given filed. Centre to asserts was decided perform no his case or Trzop’s opportunity their own search room. to state mount by charges during meeting. The reveals that before to the record contact defense the given He the let- previously prepared impose any duty. Finding was that the dismissal, ter of and to his room prohibits escorted handbook student by campus security personnel the to collect weapon ad- any dangerous and that bfelongings. knife, his having the was mitted dismissal war- ranted. pursue was refused to right the re-admission unless agreed psychiat- he dismissal my opinion It is that this was ric specified treatment and evaluation as completely col- erroneous. As Centre, by rather than nec- as determined subject lege, being Centre is and re- essary by any pro- health trained mental maining nonpublic entity licensed as a for fessional. Additionally, Centre by higher learning Kentucky the Council change prior any that “attitude” Higher Education. The As- General request for re-admission. the sembly charged Council with the re- sponsibility licensing with such
Trzop’s suit in that Circuit Court claims seq. 164.945 et promul- Council had rights by his due were violated regulations various gated administrative by any the failure to notice receive licensing process nonpub- facilitate the for pre-dismissal meeting, given op- no colleges. regulation lic One such is 13 himself, to defend call portunity or to 7(ll)(h), KAR 1:020 states in Section which witnesses on his the stu- behalf. Neither that pertinent part college shall es- threat, “[t]he allegedly dent who the nor heard policies procedures suitable object tablish allegedly the student who was process.” is threat, whereby a student assured due regarding were contacted majority opinion regu- holds that this veracity of the al- charges. He further lation is neither an unwarranted extension that was leged provided he act, enabling stating pro- it took reason for his dismissal at the time recognition motes neither the name nor and that place later communications higher In the Commonwealth’s institutions College with the the reason varied. learning, protects nor the Commonwealth’s discovery response requests, Centre as- citizens from fraudulent or substandard that the he serted dismissal was “because view, my educational institutions. both believed to be a was threat to himself assertion, truly simple goals will be advanced others.” contradiction to this recognition of the fact that when a student many deposed of the witnesses stated accused of misconduct in a being Trzop denied threat to others learning, institution of or she will be sign no he being that he showed a threat to given complaint, right notice of the Reply in its himself. Centre also claimed charge a defense to and the present Support Summary Judgment, n to confront witnesses. While “provided with the fundamen- sanctions, Catalog provides in- Student process-notice opportunity tals of due in un- cluding dismissal to be heard-at time of his dismissal circumstances the standard usual outside requires and that no afterwards” the law Judiciary, does it state Student nowhere more. may imposed sanctions those with- grant summary judg- The trial court’s simple out the finding was founded *9 upon ment statutory requirement there is no I take no comfort in the fact that in his college, College, the knife at issue was as Centre admitted students, provide any thereby confessing viola- possession, has to not is a clear and that the student handbook does tion of the student code. There of fact as whether question Next D.F., Natural Parent in the National Guard
membership Minor, Behalf of M.F., a Friend Acting Dean taken into account Similarly all Others Themselves on the during the confrontation Students Situated, Appellants, Dean later day he was dismissed. The that he did not know testified organization while belonged Secretary CODELL, III, James C. only knew of his testified that Centre Cabinet, Transportation Common- specifically had membership but also Kentucky; Boyson Thomas wealth training. to attend granted permission him (Now Secretary Cody), Wilmer C. Further, that he had no the Dean testified Education, Department Com- the truth of the sorting interest out Kentucky Kentucky; monwealth rath- complaints Trzop; about party third Elementary and Sec- State Board er, interest was to ensure primary his (Now ondary Education campus. the student be removed Calloway Education); Board of an penalty ultimate of dismissal from County Board, Appellees. School surely institution is one educational careful imposed after the most should be No. 2001-SC-0718-DG. possible and after all other of reflection Kentucky. Supreme Court It ap- sanctions have been considered. record, when viewed pears from this Dec. 2003. light plaintiff, most favorable to the March 2004. Rehearing Denied there was no consideration of other there seems to have sanction. Indeed little consideration of the entire situa-
been Preparing
tion. a letter of dismissal be- or the stu-
fore the search was conducted questioned
dent can count as due definition, only con-
by no one’s it can arbitrary act.
sidered
I affirm the Court of Boyle
remand this case to the Circuit for a trial on the merits.
Court
KELLER, J., joins this dissent.