Kentucky Labor Cabinet v. Graham, No. 2000-SC-0283-MR.

CourtKentucky Supreme Court
Writing for the CourtCooper
Citation43 S.W.3d 247
PartiesKENTUCKY LABOR CABINET, Appellant, v. William L. GRAHAM, Judge, Franklin Circuit Court, Appellee, and Tyson Foods, Inc., and River Valley Animal Foods (Real Parties in Interest), Appellees.
Decision Date26 April 2001
Docket NumberNo. 2000-SC-0283-MR.
43 S.W.3d 247
KENTUCKY LABOR CABINET, Appellant,
v.
William L. GRAHAM, Judge, Franklin Circuit Court, Appellee, and
Tyson Foods, Inc., and River Valley Animal Foods (Real Parties in Interest), Appellees.
No. 2000-SC-0283-MR.
Supreme Court of Kentucky.
April 26, 2001.

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Larry L. Lakin, Brian Keith Saksefski, Jeffersontown, Gordon R. Slone, Labor Cabinet, Office of General Counsel, Frankfort, for appellant.

William P. Curlin, Jr., Robert C. Moore, Hazelrigg & Cox, Frankfort, for Real Parties in Interest Appellees Tyson Foods, Inc.; and River Valley Animal Foods.

COOPER, Justice.


The Kentucky Labor Cabinet sought a writ of prohibition from the Court of Appeals to prevent the Franklin Circuit Court from ruling on the joint motion of the real parties in interest, Tyson Foods, Inc., and River Valley Animal Foods, to quash three search warrants and their joint petition for declaratory/injunctive relief. The Court of Appeals denied the extraordinary remedy of a writ. We now affirm.

The present dispute began on August 16, 1999 when industrial hygienists and compliance officers of the Department of Workplace Standards, a division of the Labor Cabinet, attempted to enter and inspect three facilities in Robards and Sebree, Kentucky, owned by the real parties in interest (hereinafter "Tyson"). Mike Edmonds, Tyson's director of corporate safety, denied them admission. The inspectors immediately sought and obtained three search warrants from the Franklin Circuit Court to conduct referral inspections. The warrants were assigned Franklin Circuit Court Miscellaneous Action Numbers 44, 45, and 46, each entitled In the Matter of Inspection of Tyson Foods, Inc. On August 17, 1999, the officials executed the warrants, though Tyson filed a "Notice of Protest and Reservation of Rights" to ensure its ability to collaterally attack the facially valid warrants without

Page 251

risking being held in contempt of court.1

On August 27, 1999, Tyson attacked the validity of the warrants by filing a joint motion to quash the warrants and a joint petition for declaratory/injunctive relief. To prove the warrants lacked probable cause, Tyson began deposing Labor Cabinet employees involved in their issuance. The Labor Cabinet took exception and moved the Franklin Circuit Court to quash the discovery and dismiss the joint petition. The Franklin Circuit Court denied both motions. On February 7, 2000, Labor Cabinet officials issued citations against Tyson based on evidence obtained during the searches. The Cabinet then petitioned the Court of Appeals to issue a writ prohibiting the Franklin Circuit Court from quashing the search warrants.

As the issues on this appeal are to be decided as a matter of law, our review of the Court of Appeals decision is not confined to an abuse of discretion inquiry. Sisters of Charity Health Sys., Inc. v. Raikes, Ky., 984 S.W.2d 464, 465 (1998). Thus, we are guided by the long-standing principle of law stating that a writ of prohibition will be granted only upon a showing that:

1) the lower court is proceeding or is about to proceed outside its jurisdiction and there is no adequate remedy by appeal, or 2) the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result.

Southeastern United Medigroup, Inc. v. Hughes, Ky., 952 S.W.2d 195, 199 (1997).

The Labor Cabinet contends that no adequate remedy by appeal need be shown if a lower court is acting outside its jurisdiction, citing Beaven v. McAnualty, Ky., 980 S.W.2d 284, 288-89 (1998); however, that proposition goes against the great weight of authority. Commonwealth v. Maricle, Ky., 10 S.W.3d 117, 121 (1999); Commonwealth v. Ryan, 5 S.W.3d 113, 115 (1999); Fischer v. State Bd. of Elections, Ky., 847 S.W.2d 718, 720 (1993); Clark v. Ardery, 310 Ky. 836, 222 S.W.2d 602, 604 (1949); Stafford v. Bailey, 301 Ky. 155, 191 S.W.2d 218, 219 (1945). The requirement of showing that there is no adequate remedy by appeal emphasizes that a writ is an extraordinary remedy used "to shield a [party] from injustice, against which there [is] no other adequate remedy and to preserve the ordinary administration of the laws." Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178, 181 (1916), aff'd, 244 U.S. 68, 37 S.Ct. 599, 61 L.Ed. 997 (1917).

It has not, however, at any time been held that the writ of prohibition will issue in every instance and on every occasion, merely, because the court is proceeding out of its jurisdiction. Ordinarily when a court is proceeding out of its jurisdiction, there exists an ample and adequate remedy by appeal. In such cases the writ has been denied.

Id.

The Labor Cabinet argues alternatively that the Franklin Circuit Court was operating outside of its jurisdiction, or that it was acting erroneously within its jurisdiction, or that depositions are not permitted in ex parte, non-adversarial proceedings. We agree that the Franklin Circuit Court lacks jurisdiction to quash the warrants, but conclude that the Labor Cabinet has an adequate remedy by appeal. Thus, the extraordinary remedy of a writ is not available.

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I. JURISDICTION.

This is an issue of first impression in Kentucky. The Kentucky Occupational Safety and Health Act (hereinafter "KO-SHA"), housed in KRS chapter 338, was enacted in 1972 in response to the Federal Occupational Safety and Health Act of 1970. 29 U.S.C. §§ 651 et seq. The federal act authorizes states to assume the responsibility for ensuring safe workplace environments so long as the standards articulated are at least as stringent as the federal standards. 29 U.S.C. § 67(c). In that regard, the General Assembly defined the purpose of KOSHA as being "to promote the safety, health and general welfare of its people by preventing any detriment to the safety and health of all employees, both public and private ... arising out of exposure to harmful conditions and practices at places of work...." KRS 338.011. The General Assembly then granted the Commissioner of the Department of Workplace Standards, or an authorized representative, the power "No enter without delay and advance notice any place of employment during regular working hours and at other reasonable times in order to inspect such places ... to determine the cause of, or to prevent the occurrence of, any occupational injury or illness."2 KRS 338.101(1)(a). Subsection (1)(b) of that statute authorizes the Commissioner to take depositions, photographs, and other evidence necessary to determine if an employer has violated any of KOSHA's provisions. KRS 338.141 then authorizes the Commissioner to issue citations for any such violations.

KOSHA also established the Kentucky Occupational Safety and Review Commission (hereinafter the "Review Commission"), a three-member panel designed to "hear and rule on appeals from citations, notifications, and variances" and "adopt and promulgate rules and regulations with respect to the procedural aspects of its hearings." KRS 338.071(4). KRS 338.081 authorizes the Review Commission, or a duly appointed hearing officer, to "subpoena and examine witnesses, require the production of evidence, administer oaths, and take testimony and depositions" in order to rule on appeals from citations. KRS 338.081 also grants the Review Commission the power to sustain, modify or dismiss citations and penalties assessed against employers. Finally, the General Assembly guaranteed any adversely affected party a right of appeal to the Franklin Circuit Court, and then to the Court of Appeals, but added the proviso that "[n]o new evidence may be introduced to the Circuit Court." KRS 338.091(1).

Thus, the General Assembly has created an intricate process whereby the Review Commission is the primary arbiter of KO-SHA disputes. The Department of Workplace Standards, a branch of the Labor Cabinet, has the authority to search for, discover, and penalize KOSHA violations. The Review Commission, another branch of the Labor Cabinet, then reviews these citations, first through a hearing officer and then by the Review Commission on discretionary review. 803 KAR 50:010(36), (48). Under the statutory scheme, only the Review Commission or its hearing officer can create a record for review by the

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judiciary branch. KRS 338.091(1); KRS 338.081(2). And the regulations established by the Review Commission, pursuant to KRS 338.071(4), allow for hearings in which the Kentucky Rules of Civil Procedure and Rules of Evidence are in effect, depositions can be taken, witnesses...

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37 practice notes
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...remedy" requirement, with Lewis LP Gas, Inc. v. Lambert, Ky., 113 S.W.3d 171, 175 (2003), Ky. Labor Cabinet v. Graham, Ky., 43 S.W.3d 247,255-56 (2001), Commonwealth v. Ryan, Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. State......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...remedy" requirement, with Lewis LP Gas, Inc. v. Lambert, Ky., 113 S.W.3d 171, 175 (2003), Ky. Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 255-56 (2001), Commonwealth v. Ryan, Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. Stat......
  • Jones v. Crittenden, No. 2001-SC-0761-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • November 21, 2002
    ...1. Ky., 23 S.W.3d 615 (2000). 2. Id. at 618-619 (Cooper, J., dissenting). 3. Id. at 618. 4. See Kentucky Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 251...
  • Dep't of Labor v. Morel Constr. Co., No. 2010–CA–000193–MR.
    • United States
    • Court of Appeals of Kentucky
    • January 28, 2011
    ...two Acts consistently, and we have often turned to Federal decisions for guidance in interpreting KOSHA. See Ky. Labor Cabinet v. Graham, 43 S.W.3d 247, 253 (Ky.2001) ; see also Lexington–Fayette 359 S.W.3d 443 Urban County Gov't v. Offutt, 11 S.W.3d 598 (Ky.App.2000) (finding federal law p......
  • Request a trial to view additional results
37 cases
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004), No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 16, 2004
    ...remedy" requirement, with Lewis LP Gas, Inc. v. Lambert, Ky., 113 S.W.3d 171, 175 (2003), Ky. Labor Cabinet v. Graham, Ky., 43 S.W.3d 247,255-56 (2001), Commonwealth v. Ryan, Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. State......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • August 26, 2004
    ...remedy" requirement, with Lewis LP Gas, Inc. v. Lambert, Ky., 113 S.W.3d 171, 175 (2003), Ky. Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 255-56 (2001), Commonwealth v. Ryan, Ky., 5 S.W.3d 113, 115 (1999), Potter v. Eli Lilly & Co., Ky., 926 S.W.2d 449, 452 (1996), Fischer v. Stat......
  • Jones v. Crittenden, No. 2001-SC-0761-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • November 21, 2002
    ...1. Ky., 23 S.W.3d 615 (2000). 2. Id. at 618-619 (Cooper, J., dissenting). 3. Id. at 618. 4. See Kentucky Labor Cabinet v. Graham, Ky., 43 S.W.3d 247, 251...
  • Dep't of Labor v. Morel Constr. Co., No. 2010–CA–000193–MR.
    • United States
    • Court of Appeals of Kentucky
    • January 28, 2011
    ...two Acts consistently, and we have often turned to Federal decisions for guidance in interpreting KOSHA. See Ky. Labor Cabinet v. Graham, 43 S.W.3d 247, 253 (Ky.2001) ; see also Lexington–Fayette 359 S.W.3d 443 Urban County Gov't v. Offutt, 11 S.W.3d 598 (Ky.App.2000) (finding federal law p......
  • Request a trial to view additional results

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