Kentucky Center for the Arts Corp. v. Berns

tucky genu- or federal constitution. These

inely respected and charters of venerated guidelines

the law both broad specific regulating

in some cases detail in beings. I do not conduct human they provide any

believe haven for those consequences

who would seek to avoid the activity.

of their criminal

Constitution, pertinent part, Sec.

clearly simply provides person that “no

shall, put offense, be twice same added.)

jeopardy.” (Emphasis The two

statutes here are not the same offense. long has held that there can be parts continuing

different in a criminal separate

transaction which are offenses may separately prosecuted. single

rule that a criminal action cannot be

split separate into offenses is not necessar-

ily applicable parts if different of a continu-

ous criminal transaction or series of acts separate separate- offenses and can be

ly proved. Commonwealth, Newton v. 249 S.W. 1017

I would affirm the conviction in all re-

spects.

KENTUCKY CENTER FOR THE ARTS

CORPORATION, Movant, BERNS, Respondent.

Hendrik J. BERNS, Movant,

Hendrik J. THE

KENTUCKY CENTER FOR ARTS

CORPORATION, Respondent. 89-SC-898-DG,

Nos. 90-SC-057-DG.

Supreme Kentucky.

Dec. 1990.

As Modified Jan.

whether there has been a that waiver of immunity reason of the liability insurance.

Initially, the answer failed to raise the Then, defense. March, 1988, Corporation the Arts moved grounds on sovereign dismiss immuni ty. sustained, The motion was and this appeal Appeals followed. The Court of sustained the decision of the court trial sovereign immunity applied, re order versed the of dismissal and remanded immunity finding sovereign a waiver of legislation creating because the Corporation provides part that “reve corporation nues derived from Arts, Kentucky use of the solely contributions ... used defray expenses Kentucky of the Cen Arts, including ter for the procu- ... 153.430(3). rance of insurance.” KRS The Appeals principally Court on relied Department River District Green Health (1989) Wigginton, S.W.2d 475 v. Knox Edu Taylor County Board of cation, Ky. 767, reaching this decision. Kentucky Corpo- The discretionary for ration moved review claiming apply these two cases do not be- changes in wording cause of of the Act Board of Claims effective in Walsh, Segal, Richard G. Louis- Eileen discretionary Berns filed cross-motion for ville, for movant Center for Arts. claiming review that the Center Nevitt, Hectus, C. Thomas Ken Williams agency for the Arts is not an Wagoner, Louisville, respondent & for pro- constitutionally of the Commonwealth Berns. sovereign granted tected We motions, and on both we now affirm LEIBSON, Justice. grounds sovereign the state’s November, 1987, In Hendrik J. Berns does to the for not extend Center alleg- filed suit in Jefferson Circuit Corporation. the Arts he ing permanent inju- fell and sustained at the

ries Center I. SOVEREIGN IMMUNITY Street, Louisville, Kentucky, 530 W. Main decision im when the railing steps when on the loosened and munity applies entity defense to an attempting out while he was to use it came an act has for balance. Court, historically troublesome to our been issues in resulting this case in diverse involve decisions difficult first, immunity: whether At the heart of reconcile. the matter is for the Arts is immune our provi tension between constitutional sions, negligence Constitution Commonwealth; second, so, 241, legisla- if protecting our citizens deny tive action to limit or nity access to the exists the General pursue existing courts to statute create it. causes of action death, personal injury wrongful Constitution, 231, does provision, Kentucky and our constitutional express common its terms elevate 231, interpreted through Constitutions § immunity a sovereign law to status of years to constitutionalize the common principle. says All it is: constitutional sovereign immunity law doctrine of in suits law, Assembly may, by “The General against brought the Commonwealth. Sec in what manner and what courts direct sovereign immunity tion 231 limits may brought against the Com- suits be against “suits ... the Commonwealth.” monwealth.” The crux of the date decisions to has been recognized provi- But our Court has specific provision 231 as a overrides § sover- constitutionally protecting sion as 14, general provisions, 54 and 241 as §§ immunity against the Com- eign “suits may legitimately in suits which otherwise it has no monwealth” because “brought against classified as the Com meaning. genesis in the From its First monwealth.” v. See Wood Board Edu 1792, VIII, 4, Article Constitution of § Danville, Ky., cation 412 S.W.2d 877 (the the Fourth Constitution of 1891 University and Rooks v. Louis Constitution), present pronouncement ville, (1978). Ky.App., 574 S.W.2d 923 immediately sequence has followed proviso money that “no shall be drawn exists, Where treasury consequence from the state but in power General has the appropriations made law.” The “De- statutory through waiver which it exercises 1849,” bates, Kentucky pp. Convention the Board of Claims Act. 44.070 et 628-30, confirm the tie-in between 230 §§ seq. power With this of waiver comes the present and 231 of the Constitution. These power to control the extent to which waiver recognize two sections the existence But, permitted. the General As sovereign immunity and common law of sembly power has no to extend Assembly, by gener- authorize the General beyond immunity the limits of the area act, adjusting al a method for establish constitutionally protected by 231. When § government an against claims the state so, attempts to do it is in violation of the private, special legislation. alternative to rights preserved to our citizens under in the purpose of the second section per 54 and 241. Our Court has (now 231) sequence possible is to make it § duty protect formed its our citizens a for- for the General legislative upon unlawful intrusion pay by general from the mula to claims law rights their constitutional in long line of violating treasury without the first cases, Erwin, including Happy Ky., permit- section. Without a statute (1959),Saylor Hall, Ky., ting judgments against the Commonwealth (1973), recently, S.W.2d and more paid treasury would to be out of the state O’Bannon, Ky., Gould v. previous violate the section. As stated only positive conclusion one Ward, Foley Company Construction can draw from the various cases is that the (1964): appropriate separating persons line and en Section 230 “Kentucky Constitution tities entitled to claim in the inclusion Com It complements contains Section monwealth’s is not a prohibitions against withdrawal of mon- Assembly may line which the General draw ey Treasury.... from the State [B]oth discretion, problem in its abut of constitu promote intended to or- sections are tional law which our must address on disposition public derly system for a case case basis. Where money.” exists reason of constitu tion, sections, Assembly may in the Nothing the General extend or in these two nor fit, proceedings accompanying limit waiver as it sees no of the but where records (which constitutionally protected only sovereign immu- their enactment exist Conventions), 1849 and 1890 presupposes pursuant 153.400-.460 finding to a of the grant broad of sovereign immunity in Assembly: the discretion of legislature beyond opportunities cultural and the “[TJhat activities commonly per- understood as positive impact arts have a direct and on formed central state at the industry.... [Wjill the hotel serve as time the Constitution was enacted. catalyst in development of Louisville One of the earliest cases shedding light major and Jefferson as a conven- subject on this v. Kentucky Gross Board [Wjill tion and entertainment center.... Managers, 49 S.W. 458 of (1899), management priority have as the stimu- decided contempo- a court with a county lation of the Jefferson hotel in- rary understanding subject. dustry promotion of tourism....” Kentucky Managers Board of the KRS 153.400. World’s Exposition Columbian was created provides “[tjhe KRS 153.410 the Kentucky by an Act the General in 1893 Corporation Center for the Arts ... shall' “to for the collection and exhibition (11) represent- consist of eleven members of the resources progress and evidences of ing metropolitan Kentucky Louisville and Kentucky the State of at the World’s appointed by governor, to be the ... Exposition.” Columbian Although the Act terms,” four-year “may who be removed “expressly absolved” the state from liabili- governor only the being cause after ty Board, for the actions of the the Court notice, hearing....” afforded [and] stated: “Corporation body corporate shall abe “The rule is well settled that the state corporate powers.” with full KRS 153.420 sued,.... cannot be But this rule does prescribes powers the and duties the apply corporation not the Corporation, including power the to issue public state for certain purposes. ap- If solely payable “revenue bonds ... from the pellee was made the acts referred to a revenues, charges, rentals, and other funds corporation quasi or a corporation, we pledged payment,” “levy for their a sur- see no why reason it exempt- should be charge on tickets for all functions held ed.... It is true that this board has operating within the center to contribute called, opinion by court, been in an revenue,” and to “have exclusive control of ‘agency agen- of the state.’ It anwas exhibitions, performances all and conces- state, cy of the it but was also vested in sions the Center for the Arts.” corporate powers, with corpo- and in its capacity may rate be sued for its cor- alia, provides, “[ajll KRS 153.430 inter acts, porate just corpora- other corporation revenues derived the from headquarters tion. ... The erection of a the use Center for the building running and the of a restaurant Arts, or solely contributions ... business, were matters of in which this defray expenses used to Ken- plane board stood on the same as others Arts_” tucky Center for the KRS 153.- engaged in undertakings.” like Id. provides addition to the three “[i]n (3%) percent transient room tax authorized damages Gross was a suit for for breach of 91A.390, fiscal courts in counties Sovereign contract. immunity applied to containing [i.e., cities of the first class Jef- breach of contract cases on the same foot County only] may levy ferson an additional ing as tort cases until the waiving 1966Act per- transient room tax not to exceed one application. its Cullinan (1%),” “[ajll moneys cent collected County, Ky., tax ... shall be turned over to [this] Gross, As in Center for the Corpora- Arts was not created to dis- tion, defray operating and shall be used to charge any “governmental function” costs of the Center for the Arts.” context which 231 of the Constitution recognize difficulty was written. The Center for the We of clas sifying purposes is established in KRS entities for of constitu- coextensive, and held the Act did not tionally protected sovereign ty as certainly every But business can be apply because it was not an to MSD simply immunized because it is established government” “out of “central State funded Assembly, act of the and this treasury.” of the State corporation performs substantially the Opinion address in this We will not en- any private same functions as business subsequent whether or not the case gaged We in the entertainment business. Metropolitan Louisville & Co. perceive patron attending the how a Simpson, Dist. v. Orchestra, formerly per- Louisville which correctly. applied It suf- Gnau Macauley Theatre and formed at the now present purposes recognize fices for performs at the premise the fundamental stated Gnau deprived by has been reason expresses the reach of state both right change in location of his to maintain a immunity and the waiver of that negligently common law action he is when in the Board of Act. It is: Claims injured. corporation furnishing agencies “... to those which are performance performing hall now is under the direction and control of the corporation same function that the operat- sup- central State ing Macauley past. Theatre did ported by by monies which are disbursed If reasoning, we were to follow such there Fi- authority of the Commissioner of scope of would be no limitation on the treasury.” nance out of State sovereign immunity. Every time the state [Em- phasis Supra. gets enterprise formerly pri- in an involves added.] the area vate of would test, two-pronged This is a the first con- expand accordingly. sisting and of the “direction control of respondent argument The stated at oral government,” central State and the second that it will “stand” on the distinction ver- consisting being “supported by of monies balized Gnau v. Louisville & by authority are Jefferson which disbursed Dist., Metropolitan Ky., Co. 346 of Finance out of the State Commissioner sup- S.W.2d 754 But will Gnau not treasury.” port argument. respondent’s The issue the “di- is not under in Gnau was not whether the claimant of the central state rection and control” Metropolitan could sue Sewer District for but of its directors who negligence in a court of law. That was year au- appointed for four terms and act assumed. The issue was whether tonomously. They cannot ex- be removed proceed jurisdic- claimant could within cept Coupled cause. with the fact that Act, tion of the Board of Claims an act Corporation is to purpose of the Arts “negligence limited its terms to on the entertainment, in the name albeit part any of the Commonwealth of its [and] promoting of tourism and thus the econom- departments agencies.” holding or and ic welfare of Louisville Jefferson Coun- qualify was that MSD did not as “a Gnau ty, compel these facts the conclusion that agency employed state as the term is in our constitutional fathers would not view 44.070,” the Board of Claims Act. activity qualifying for this states: The court waiver of the Board [in “[T]he attaches to those of Claims Act] Municipal corporations are local under the direction agencies which are by act As entities created of the General govern- the central and control of State agencies performing the sembly and not supported by and are monies which ment government. As central state services of by authority of the are disbursed Com- qualify sovereign im they do not such of Finance out of the State missioner “municipal corporation” munity. The term treasury.” at 755. Id. only a city, limited to a and it is not is not longer from suit city that “is no immune regarded the limits of the The Gnau case lan- liability” although there is Board of Claims Act and immuni- for tort 332

guage Louisville Metro. Sewer District ance ... shall not be construed as a waiver Simpson, v. might 730 S.W.2d at 940 that or of other immu suggest nity privilege.” hand, construed to otherwise. On the On the or other we contrary, as stated in Taylor Rash v. Louisville & note the distinction between v. Dist., Education, County Ky. Metro. 309 County S. Knox Bd. (1949), 217 S.W.2d a “munici- 167 S.W.2d 700 Green Riv pal corporation” nothing means more than Dept. Wigginton, er Dist. Health government entity (1989), a local created Kestler v. 764 S.W.2d 475 Tran carry “designated” state to out functions. Ky., Ky., sit Auth. N. (1988), In Stephenson statutory & deciding Louisville cases there was a Health, Ky., authorizing Bd. or waiver because of statutes (1965), directing liability we held that “the Board of insur purchase ance, municipal corporation,” Health is a Fayette and a case such as Moores v. Co., (1967), then stated: Ky., where S.W.2d mandating permit there was no statute or unit, governmental “Since it is such a it ting purchase liability insurance. falls squarely under the decision Ha- distinction, Ap Based on ney City Lexington, Ky., peals statutory decided here there was a (decided 22, 1964), May Arguably, waiver. if the 1986 As consequently governmental cannot claim sembly change meant to the situation immunity.” Id. 44.073(14), enactment of KRS should line between what is a statutory language have so stated with municipal corporation and what is a exists, immunity, where it is not entity divided whether the waived insur city, state statute is is not a where, here, legislation ance even the whether, whole, when viewed as a the enti expressly purchase. The mean directs its ty carrying integral is out a function ing statutory changes of the 1986 remains government. by analogy state We use the day statu undecided for another when the language in Kentucky Region Eight tory entity qualifies involved for Commonwealth, Ky., 507 S.W.2d making question immunity, thus of (1974), holding waiver essential to the decision. “departments, extend should boards integral agencies parts that are such III. CONCLUSION regu state as to come within patterns organization lar of administrative Thus, we affirm the decision and structure.” Center for the Appeals, not on the basis of the reasons qualify Arts does not for sov therein, that the stated but on the basis ereign immunity concept. under this qualify protection does not under the

II. WAIVER concept sovereign immunity ex- of state decided, pressed in our Having so we need not reach the Constitution whether, Assembly if and therefore the General question, second which is sover- § existed, transgress rights guaranteed our eign immunity it was waived 153.430(3), in quoted citizens Constitution language in KRS and 241. This constitutional supra, directing procurance “the insur- prevents [Emphasis scheme the General ance.” added.] extending Appeals decision The Court of based its except to tort cases where the the trial court’s dismissal on this to reverse preserved by is 231 of doctrine statutory language. But the amend- the Constitution. inveigh ments to the Board of Claims Act principle implied Appeals of the Court of length against decision waiver, 44.073(14) affirmed, in including in a state- for the reasons stated but Opinion. insur- ment that “the COMBS, LAMBERT, JJ., property, truly GANT and sale of state one suit is concur. the Commonwealth. complete in is not record this case WINTERSHEIMER, J., concurs enough for me to know whether either of only.

result I possibility, these events is a believe VANCE, J., separate dissents whether the we should be certain as to STEPHENS, C.J., opinion joins. in which might ultimately bear the Commonwealth any potential judgment before burden of VANCE, Justice, dissenting. deny availability of the defense of we argument At oral we were informed that sovereign immunity. Assembly Kentucky makes appropriation a direct annual the Ken- STEPHENS, C.J., joins in this tucky and that dissenting opinion. Building Louisville, lawsuit, which is involved this

is owned the Commonwealth of Ken-

tucky. allega- This lawsuit stems from an negligence properly

tion of the failure to railing building

maintain a stair in this

owned the Commonwealth. The briefs question

furnished to us do not discuss the obtained, judgment, of whether a if one is SCHMITZ, Kelley Appellant, Watson could enforced or whether the funds appropriated by the General SCHMITZ, Appellee. Marcus P. Center for the Arts would be subjected payment judg- to the such SCHMITZ, Cross-Appellant, Marcus P. ment. There is also no discussion of building whether subject itself could be SCHMITZ; and, Kelley McCoy, judicial satisfy judgment. sale to Watson Newcomer, Cross-Appellees. Baker and

The last decision of this court on sover eign immunity held that the Louisville and SCHMITZ, Appellant, Marcus P. Metropolitan Sewer Dis trict was a state entitled to the SCHMITZ, Kelley Appellee. protection Watson Louisville and County Municipal Sewer Dis 88-CA-2752-MR, Nos. 89-CA-043-MR Simpson, Ky., trict v. and 89-CA-112-MR. (1987). The sewer district did not receive Appeals Kentucky. appropriation direct from the Common wealth, nor did the Commonwealth have Sept. 1990. property title to the utilized the district. Discretionary Review Denied It seems to me that the Commonwealth has by Supreme Court Feb. a much closer and direct connection with Center for the Arts than it does with Louisville and Jefferson District,

County Municipal and thus represents a step

the decision here

different direction in a field which changed

court has direction numerous

times. certain, however,

I judgment am that if a

in this case could be satisfied out of funds

appropriated by judicial the state or

Case Details

Case Name: Kentucky Center for the Arts Corp. v. Berns

Court Name: Kentucky Supreme Court

Date Published: Jan 17, 1991

Citation: 801 S.W.2d 327

Docket Number: 89-SC-898-DG, 90-SC-057-DG

Court Abbreviation: Ky.