*1 ter a suspected drunk deci- driver’s
sion-making process since there no con- right
stitutional to refuse to submit to a
test to determine blood alcohol concentra-
tion.
Accordingly, the is so law certified.
All concur.
JOHNSTONE, J., sitting. SANITATION,
SPANISH COVE
INC., Appellant,
LOUISVILLE-JEFFERSON COUNTY
METROPOLITAN SEWER
DISTRICT, Appellee.
No. 2000-SC-000496-DG.
Supreme Kentucky.
April 25, 2002. *2 Anderson, Appellant’s served customers. Hargadon, system that Bruce Garrett Lenihan, facility val- Herrington, Appellant’s Christo- Harbolt & This would render Louisville, Morris, Appellant. Ap- for to pher plan pay did Appellee ueless. did it file an eminent domain pellant, nor Zielke, George Mee- Laurence Caroline action. Jr., Kent, na, Dwyer, K. John H. Deborah Zielke, Gordinier, Pence, Pedley, Olt & filed this action Jeffer- Appellant Louisville, appellee. for federal claims asserting son Circuit 14th Amendments of under the 5th and GRAVES, Justice. and state United States Constitution the Court declared under 13 and claims Sections 1, a which KRS 65.115 was enacted relating to the tak- Kentucky Constitution taking for provide compensation sewage to for with- ing private property public use utility property, treatment also Appellant just compensation. out special legislation. Consequently, as pursuant made a claim to Jefferson Circuit Court this case cor public corporation a requires which rectly granted motion to dismiss a subse compensate to maintains sewer service quent complaint seeking recovery based on another sewer taking for the customers of the same statute. court appellate Once filed a to Appellee service. motion dismiss has declared a statute unconstitutional in as, ripeness, pоint, for at that action entirety, statute cannot thereafter Appellant’s Appellee yet had not tied into rights under provide any powers or Ken claim argued lines. also that the Appellee tucky law. under 65.115 should be dismissed KRS Sanitation, Appellant, Spanish Cove had found because the Court facility owns waste water treatment in Monticello the statute unconstitutional composed grounds, equipment Kentucky, Natu Co. Commonwealth оf systems providing pipe waste water Protec ral Resources and Environmental sewage treatment to residential customers Cabinet, S.W.2d 921 tion in the Fern Creek area of Jefferson Coun- ty. Appellee, County Louisville-Jefferson to granted trial court the motion District, Metropolitan municipal Sewer ais dismiss, reflected stating record corporation acquire with the land had, fact, been property that the taken proceеdings pursuant eminent domain thereafter paid The Court of for. of its Appellee, 76.110. as unpublished opinion in an stated expand into the Fern project to services area, the trial court’s con- planned pipe ruling to tie into the below indicated Creek 65.115(1) public body, sub- Compensation sewage city, county, district or for utility property do- taking proposing treatment to take over district over or —Eminent provi- Surcharge customеrs, to customers: "The compensation pay just shall main-— rule, regulation other or sions prior to the time for such installations public notwithstanding, any city, county, agreement are taken over. If customers politic special body corporate or or district or reached, just compensation is not then for subdistrict, county, other than an urban fur- be compensation shall for installations nishes, furnish, sewage proposes to treat- body, dis- payable by city, county, public said utility to customers of another ment services pro- subdistrict after condemnation trict or sewage utility of all or treatment means Act Ken- the Eminent Domain vided for in any part paid owned or installations tucky.” utility, sewage by such other treatment then fusion between previous this case and a presenting the case when taking actu- action parties Further, between the ally same that had did panel pointed occur.3 been resolved another division of Jeffer- to a on the ruling notation trial court’s *3 son Circuit Court. concerning KRS 65.115: An appeal should be taken this action
The of Appeals’ opinion Court focused in regard to the interpretation of KRS Monticello, on KRS 65.115. the Court 446.090 the interpretation versus of KRS of Appeals special deemed the leg- 65.115. The issue of a of lack constitu- islation because it exempted urban coun- stаnding tional special and the of issue ty government from provisions of the legislation by should be the ap- decided statute, exemption only applied which pellate court. to the Lexington-Fayette Urban County In considering Government. the instant KRS deals severability 446.0904 of case, Court Appeals panel opined provisions unconstitutional from the bal- that 65.115 by could be saved sever- ance of a statute. ing out the language unconstitutional “oth- Turning issue, er than an urban county” leaving the panel on reconsideration concluded it was Thus, rest of the statute intact. Monticello, bound by supra, because a panel’s opinion the Monticello decision majority of the Court Appeals had de- fact,
went too far and Appellant, had a panel clined to it. overrule The then cause of action. panel The referred the turned to a decision of the United Stаtes case for banc en consideration of this prop- Court Appeals for the Circuit for Sixth osition and the split entire 7-7 Investments, guidance, Calvert Inc. v. question. County Metropolitan Louisville-Jefferson (6th District, Sewer 847 F.2d 304 Cir. Appeals thereafter recom- 1988), held that which the owner of the mended transfer to this Court. We denied facility legal treatment had bare transfer title to taking because the had not actual- However, ly pipes. at occurred the time the suit was customers had filed judgment dismissing right usage and a of free of those pipes. the claim was Servicing entered. On reconsideration those customers was deemed to en panel, banc Court of be a mere a expectancy protected held that and not the trial court property Thus, had dismissed the case interest. Id. at 308. prejudice” “with a panel Court of dismissal concluded operate Appellant to foreclose from case that Appellant did not have an ave- Ky. § provides Severability. “[t]he Const. that General 4.446.090. It shall be consid- Assembly pass special ered that the intent of the General Assem- shall not or it is local acts statute, bly, enacting any any part that concerning any following subjects, of the or the statute be held unconstitutional the re- following purposes of the ...: Twen- force, maining parts shall remain in unless ty-ninth: general In all other where cases a otherwise, provides the statute or unless the applicable, special law can be made law remaining essentially parts insepa- are so provides shall enacted.” be Section 60 rably upon dependent connected with and part Assembly "[t]he that General shall not apparent that it is indirectly any special enact or local act .... Assembly have General would not enacted by exempting operation general from the aof remaining parts without the unconstitu- district, town, any city, act county....” part, remaining parts, tional or unless the alone, standing incomplete incapable are parties 3. The have this has indicated since being executed in accordance with the in- happened. Assembly. tent of the General Ex’r, Ky. v. Lieber’s Henderson compensation. We nue which to seek The effect discretiоnary review to address S.W. granted declaring 65.115 we Court of the concerns raised Monticello nullity. is to render it Appeals’ decision. unconstitutional now affirm the Court parse out the un- impossible It is to now outset, At note we should something that pieces constitutional trial court did not abuse its discre does not exist. determining the issue was not tion in Kentucky plain ripe. before Under of Ap with the Court agree We make claim of condemna tiff can invеrse that, in the absence of KRS peals *4 tion, taking. Hol there must be actual Inc., Investments, swpra, ratio the Calvert Smith, loway Ky., 68BS.W.2d Const. Co. in case. applicable Appellant nale this is (1984). In Associated Industries pro in property has interest protected no Commonwealth, Ky., 912 Kentucky v. of to the sewage services viding treatment (1995), Kentucky we held that S.W.2d 947 customers, it has but a mere Fern Creek advisory cannot or grant opinions courts Therefore, еxpectancy. we affirm the questions, hypothetical rule rather on but opinion in that the Appeals Court of its disputes. must on At the time rule real granted summary properly trial court filed, nothing this had even action was judgment in of favor the Louisville-Jeffer arguably been taken. County Metropolitan Sewer district. son Notwithstanding, Appellant’s claim COOPER, C.J., GRAVES, LAMBERT, fail based the 65.115
would still KRS STUMBO, JOHNSTONE, argument. Appeals, Court of under WINTERSHEIMER, JJ., concur. 446.090, may theoretically KRS been have portion able to sever the unconstitutional KELLER, J., in a separate dissents 65.115, leaving of the remainder in- KRS opinion. However, tact. the Court of held in entirety Justice, statute unconstitutional KELLER, dissenting. Monticello, in this a fact neither Court nor reasons, respectfully several I dis- For changed has Assembly General I would reconsider constitution- sent. eight not years. appropriate It is now ality light of severability this to of a revisit the v. Com- overrule Monticello Co. held previously statute unconstitutional. Kentucky, Re- monwealth Natural and Environmental Protection Appellant recognize fails to sources
What Cabinet,1 of the Court por reverse decision arguing that case, in this and remand this tions KRS from the 65.115 are severable court for it resolve the of the is that KRS action to trial remainder statute claim. Appellant’s For it longer years, 65.115 no exists. merits majority I of this Kentucky any Although agree that has been law that and with the Court of of the Con Court passed contravention initio, Appel- correctly court dismissed ab action trial stitution void (or reverse)2 constitutional, nullity. City inverse is a lant’s taken thereunder (1993) (hereinafter (1993) ("Ordinarily, law of emi- “Monticello”). requires prior to domain that nent occurring ‘taking’ that land be condemned. Cabinet, Commonwealth, Transp. 2. See Jones v. however, brought action as a Appellant’s Highways, pt. Ky.App., 875 S.W.2d De law,”6 condemnation claim rights powers Kentucky because claim under yet not I ripe, was believe the trial court can I majority’s nor endorse the conclu- erred when it dismissed that claim “with sion that wiped Monticello decision prejudice,” and I would reverse the Court KRS 65.115 from the books. The Monti- of Appeals and remand claim to the cello decision held that KRS un- 65.115’s trial court with for it instructions to dis- constitutionality that provision rendered the claim prejudice. miss without unenforceable, but that holding does not
First, I prevent revisiting observe that the from majority pro- from ceeds a mistaken unconstitutionality. belief statute’s “KRS longer 65.115 no exists.”3 This belief is prac- While I have concerns about simply factually correct. The General consequences majority’s tical conclu- 65.115,4 Assembly enacted KRS only sion,7 my significant most concern is that legislature has the to repeal majority authority support cites that stаtute and it remove its contention that deter- prior appellate statutory Commonwealth’s law.5 As an finding mination a statute unconstitutional inspection of Volume Four of the Official *5 prevents the from judiciary reconsidering Edition of the Kentucky Revised Statutes prior that and until determination unless reveal, will the Assembly General has not Assembly the General to reenact chooses 65.115, repealed KRS and that statute re- fact, in legislation. And, the I would ob- an mains law in enacted this Common- prior serve opinions addressing that the that, wealth. I Although recognize constitutionality of limi- of certain statute Monticello, of Appeals the Court declared provisions8 ample tations unconstitutional, provide evidence I cannot judiciary the to with has recon- agree majority’s the assertion that previous holding sider a appellate declaring “[o]nce stat- court has deсlared a 1973, statute entirety, Saylor ute the unconstitutional. v. Hall,9 statute cannot thereafter provide any predecessor our held that these limi- 'reverse condemnation' A despite action. 'reverse fact monwealth the that almost no one condemnation' action differs from an ordi in the circuit state would know about the nary unpublished condemnation action in the holding. land has court’s already by government.”); been taken 413.120(14) 413.120(13)] Cоmmonwealth, 8. KRS [now Dept. Highways v. David 413.135(1); son, Ky.Acts, and KRS See ch. 1964 Ky., (1964). 124, 1; pro- § Ky.Acts, 1966 ch. 246. These 918, Majority Opinion, 72 S.W.3d visions, statutes, 3. described "no action” provided persons home and those builders engaged "design, planning, supervi- 445,- 1, 15, Ky.Acts, § 4. 1986 July ch. effective sion, inspection or construction of im- 1986. provement to property” immunity real damages injuries from suit for caused §§ & 28. Ky. 5. Const. (5) any deficiency expiration after the of five years occupancy from substantial com- Majority Opinion, supra and/or note at 919. pletion improvements. instance, court, sitting 7. For if circuit as an court, 218, 112(5); appellate (1973) ("fThe § Ky., see CR 9. 497 S.W.2d Ky. Const. 72, 12.02, seq.; legislative provisions] plain- et applied RCr holds cannot to bar the be application enactment unconstitutional Court of tiffs’ claims in this action. Such discretionary Appeals constitutionally either denies review or is impermissible in this state review, party discretionary seeks the ma- spirit because it would and lan- violate jority’s logic guage dictate the statute would is of Sections and 241 throughout Kentucky....”). void and unenforceable Coin- Constitution of concerning the first time —issues Kentucky provisions violated the tations accordingly constitutionality declared of KRS 65.115.14 Constitution (9) years statute unconstitutional. Nine I Monticello because the overrule later, Moody,10 Court Carney v. this failed to consider KRS issue, pro- concluded that revisited requires uphold us to which infirm, constitutionally visions were not enactment, constitutionality legislative of a applied pending them case. possible, severing the unconstitution- later, (4) Yet, years another four remainder in portions leaving al while Tabler v. again revisited the issue in pan- the Court of Although force. pro- again once declared the Wallace11and recognized el that decided this case below unconstitutiоnal, although on differ- visions oversight, pan- court’s the Monticello grounds: ent constitutional previous, tied” el’s “hands were Carney Moody opposite v. reached declining en banc decision equally-divided Saylor from v. Hall while conced- result Nevertheless, the Monticello. overrule distinc- ing there was no “factual opinion in this case ad- Court of overruling tion” without it. error. Because the dresses Monticello’s Chapter need Three tо not write We analysis adequately expresses panel’s my Carney Saylor Moody. v. Hall and views, I no reason to “reinvent see has inquiry shifted from whether Thus, dissenting opinion. I wheel” arbitrary and discriminato- analysis: adopt panel’s will ry, to constitutional issues not discussed protection in those opinions, equal *6 us to the Spanish urges Cove sever legislation.12 special portion of KRS 65.115 unconstitutional however, Through litigation, all of this the the statute and from thе remainder of they statutes remained the books until constitutionality. its Because uphold by subsequent legislation.13 were amended Monticello declared the entire statute legislation, special as we unconstitutional 65.115, Accordingly, KRS like the stat- may overruling not do without Monti- so provisions ute in of limitations addressed This overrule Monti- panel cello. above, opinions discussed was not except cello and revive KRS 65.115 for by erased from thе books the Court of portion of it that was unconstitution- in Appeals’ decision but re- Monticello However, special legislation. al statutory as body mains of our of Appeals, majority entire Court albeit unenforceable unless resuscitated banc, Therefore, en considering it this issue re- decision of this Court. is after to do We are therefore bound appropriate now for this Court to review— fused so. ("[T]he (1982) majority’s is Ky., that it not
10.
statutes
14.Under
rationale
provisions.”).
appropriate
do not violate the constitutional
this Court to revisit a statute
for
previously
by a
unconstitutional
final
held
court,
denied,
(1985),
appellate
we are in effect
Ky.,
11.
704 S.W.2d
cert.
decision
179
89,
822,
adopting
U.S.
107 S.Ct.
ing Appellant from later reasons, I reverse the above For an actual condemnation claim after verse Appeals and: of the Court of the decision taking majority offers adviso- —and for it trial court remand this action it affirms the view the ry opinion when (1) Appellant’s the merits of to: resolve that, even the claim Court (2) claim; Aрpel- dismiss recog- ripe, Appellant would was have (or reverse) condemnation inverse lant’s my property interest to assert. nizable prejudice. claim without opinion, stage the record at permit does the inference proceedings partic- in this factual issues case—
ularly relating Appellant’s to the those sys-
ownership pipe interest sewer Appellant’s
tem that served customers— “on fours” Calvert Invest-
are all
ments, County v. Inc. Louisville-Jefferson BURTON, Appellant, Stephen E. Metropolitan District.16 This defi- Sewer ciency the same facing leaves quandary as the Louisville and CORPORATION; WHEELER FOSTER County Metropolitan Sewer Jefferson Terry, Administrative Law Donna v. Tarrytowne Dist. Sanitation Co.:17 Kittinger, Pre Judge; Bonnie Former is, big question being what is taken? Arbitrator; siding and Workers’ Com generally This will be determined Board, Appellees. pensation particular circumstances in each case. No. 2001-SC-0348-WC. questions.
There are several relevant Is merely the acquisition the dedicated Kentucky. Supreme Court of lines public containing easemеnts sewer fully paid which have been 25, 2002. April abutting using property owners? Is *8 utility acquisition an established Or,
profitable something is it business? easements, Who owns the between? anyone? provide Who will access easements, existing if access is all of the
necessary? We do not have questions.18 even
answers or
all
Commonwealth,
Cabinet,
(6th Cir.1988).
Transp.
16.