Ky. Concealed Carry Coal. v. City of Pikeville

• Decision Date: 03 December 2021
• Docket Number: 2020-CA-0437-MR
• Parties: KENTUCKY CONCEALED CARRY COALITION, INC. APPELLANT v. CITY OF PIKEVILLE, KENTUCKY; JAMES A. CARTER; PHILIP R. ELSWICK; BOARD OF COMMISSIONERS CITY OF PIKEVILLE, KENTUCKY; AND CITY OF PIKEVILLE EXPOSITION CENTER CORPORATION APPELLEES
• Court: Kentucky Court of Appeals

KENTUCKY CONCEALED CARRY COALITION, INC. APPELLANT
v.
CITY OF PIKEVILLE, KENTUCKY; JAMES A. CARTER; PHILIP R. ELSWICK; BOARD OF COMMISSIONERS CITY OF PIKEVILLE, KENTUCKY; AND CITY OF PIKEVILLE EXPOSITION CENTER CORPORATION APPELLEES

No. 2020-CA-0437-MR

Court of Appeals of Kentucky

December 3, 2021

NOT TO BE PUBLISHED

APPEAL FROM PIKE CIRCUIT COURT HONORABLE EDDY COLEMAN, JUDGE ACTION NO. 18-CI-00602

BRIEFS FOR APPELLANT:

Steven D. Jaeger Erlanger, Kentucky

ORAL ARGUMENT FOR APPELLANT:

Steven D. Jaeger Erlanger, Kentucky

BRIEF FOR APPELLEES:

Russell H. Davis, Jr. Pikeville, Kentucky

ORAL ARGUMENT FOR APPELLEES:

Russell H. Davis, Jr. Pikeville, Kentucky

BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND McNEILL, JUDGES.

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OPINION

CLAYTON, CHIEF JUDGE

The Kentucky Concealed Carry Coalition, Inc. ("Appellant") appeals from the Pike Circuit Court's order granting summary judgment in favor of the City of Pikeville (the "City"); the City's mayor, James A. Carter; the City's manager, Philip R. Elswick; the City's Board of Commissioners; and the City of Pikeville Exposition Center Corporation (collectively, the "Appellees") and dismissing the matter with prejudice. Appellant further appeals from the Pike Circuit Court's order granting attorney's fees and costs to Appellees.

Upon review, we reverse both the Pike Circuit Court's order granting summary judgment in favor of Appellees and the Pike Circuit Court's order granting attorney's fees and costs to Appellees and remand the matter for further proceedings in accordance with this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant filed a complaint in the Pike Circuit Court on May 15, 2018, against Appellees based on Appellees' alleged violations of Kentucky Revised Statute (KRS) 65.870, which preempts local governments from regulating firearms. In its complaint, Appellant sought a declaratory judgment from the Pike Circuit Court that particular rules, policies, and lease provisions prohibiting all weapons within certain properties owned, leased, and/or controlled by the City violated KRS 65.870. Appellant also sought temporary and permanent injunctions prohibiting the enforcement of such rules, policies, and lease provisions, along

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with a repeal of the offending actions and an award of Appellant's attorney's fees, costs, expert witness fees, and expenses.

Thereafter, the parties filed competing motions for summary judgment and, after holding a hearing on January 24, 2020, the circuit court entered an opinion and order on March 10, 2020, denying Appellant's motion for summary judgment, granting Appellees' motion for summary judgment, and dismissing Appellant's complaint with prejudice. Additionally, on June 10, 2020, the trial court entered an order granting Appellees' attorney's fees as the "prevailing party" in the action. This appeal followed.

Further facts will be discussed as they become relevant to the issues discussed in this Opinion.

ISSUES

Appellant argues the following issues on appeal: (1) whether the trial court erroneously granted Appellees' motion for summary judgment by misunderstanding the facts, misapplying KRS 65.870 to the facts, and accepting Appellees' reliance on other state and federal laws; (2) whether the trial court erroneously determined that Appellees were the "prevailing party" and thus entitled to attorney's fees; and (3) whether the court awarded unreasonable attorney's fees to Appellees.

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ANALYSIS

a. Standard of Review

As stated by the Kentucky Supreme Court, "the proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation omitted). Thus, the trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Id. (citations omitted). Further, "a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Id. at 482. (citations omitted).

Upon appellate review, "[a]n appellate court need not defer to the trial court's decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved." Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004) (citations omitted). In reviewing a grant of summary judgment, our inquiry focuses on "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft,

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916 S.W.2d 779, 781 (Ky. App. 1996) (citing Kentucky Rules of Civil Procedure (CR) 56.03).

b. Discussion

1. General Constitutional and Statutory Framework Regarding the Regulation of Firearms in Kentucky

Before addressing the parties' specific arguments in this case, we will analyze the overall constitutional and statutory framework in Kentucky regarding a city's or other local government's ability to prohibit or otherwise regulate the open carrying of firearms, the carrying of concealed firearms, and/or the storage of firearms contained within vehicles on property owned, leased, or controlled by such city.

The United States Constitution states that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Additionally, the people of Kentucky preserved the protection of this right in Section 1(7) of the Kentucky Constitution, which states that:

[a]ll men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: . . . Seventh: [t]he right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

(Emphasis added.)

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Moreover, while the Kentucky Constitution allows the General Assembly to enact laws regarding the carrying of concealed weapons, the General Assembly has specifically preempted other forms of local government from establishing any rule, policy, procedure, ordinance, or "other form of executive or legislative action" that prohibits or otherwise regulates firearms. KRS 65.870. Specifically, the General Assembly enacted KRS 65.870, which provides, in applicable part, that:

(1) [n]o existing or future city, county, urban-county government, charter county, consolidated local government, unified local government, special district, local or regional public or quasi-public agency, board, commission, department, public corporation, or any person acting under the authority of any of these organizations may occupy any part of the field of regulation of the manufacture, sale, purchase, taxation, transfer, ownership, possession, carrying, storage, or transportation of firearms, ammunition, components of firearms, components of ammunition, firearms accessories, or combination thereof.

Further, "[a]ny existing or future ordinance, executive order, administrative regulation, policy, procedure, rule, or any other form of executive or legislative action in violation of this section or the spirit thereof is hereby declared null, void, and unenforceable." KRS 65.870(2).

Thus, the foregoing statutory language sets forth the General Assembly's intent that no form of local government is permitted to regulate or promulgate any rules, policies, or other forms of executive or legislative action in

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the area of firearm carrying, possession, storage, or transportation. The language of this statute is unambiguous, and no exceptions to the terms of the statute are set forth. See Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984) (where the General Assembly makes "no exceptions to the positive terms of a statute [it] is presumed to have intended to make none.").

2. The Open Carrying of Firearms Under Kentucky Law

As stated by a separate panel of this Court, "[i]n Kentucky, a person has the right to carry a firearm openly and, so long as the firearm is in full view, no one may question the person's right to do so." Pulley v. Commonwealth, 481 S.W.3d 520, 525 (Ky. App. 2016) (citation omitted). The Court further observed that "[a]s interpreted by Kentucky Courts, this right 'is an exemplification of the broadest expression of the right to bear arms.'" Id. (quoting Holland v. Commonwealth, 294 S.W.2d 83, 85 (Ky. 1956)). Thus, "[b]earing an unconcealed weapon is not an offense[, ]" the Court stressed. Id. (citation omitted).

3. The Concealed Carrying of Firearms on City Property in Kentucky

In line with Kentucky's constitutional language, the Kentucky General Assembly has enacted various laws authorizing the issuance of and establishing standards for an individual's right to carry concealed weapons. Specifically, under KRS 237.110, once obtained, a license to carry a concealed firearm or other deadly weapon is "valid throughout the Commonwealth and,

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except as provided in this section or other specific section of the Kentucky Revised Statutes or federal law, permit[s] the holder of the license to carry firearms, ammunition, or other deadly weapons, or a combination thereof, at any location in the Commonwealth[.]"

Nevertheless, the General Assembly also passed KRS 237.115(2), which provides, in applicable part, that:

[t]he legislative body of a . . . city . . . may, by statute, administrative regulation, or ordinance, prohibit or limit the carrying of concealed deadly weapons in that portion of a building owned, leased, or controlled by that unit of

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