Maney v. Mary Chiles Hosp., 89-SC-144-DG

• Citation: 785 S.W.2d 480
• Decision Date: 15 March 1990
• Docket Number: No. 89-SC-144-DG,89-SC-144-DG
• Parties: Connie MANEY, Appellant, v. MARY CHILES HOSPITAL, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 480

785 S.W.2d 480

Connie MANEY, Appellant, v. MARY CHILES HOSPITAL, Appellee.

No. 89-SC-144-DG.

Supreme Court of Kentucky.

March 15, 1990.

John H. Keeton, Wagers and Keaton, P.S.C., Winchester, for appellant.

Ronald L. Green, Gregory K. Jenkins, Boehl, Stopher, Graves & Deindoerfer, Lexington, for appellee.

LAMBERT, Justice.

This Court granted discretionary review to consider the Court of Appeals' en banc opinion and order dismissing this cause for failure of the appellant to give notice to the Attorney General of the pendency of a constitutional challenge to KRS 413.140(2). The foregoing statute imposes an outside limit of five years upon the bringing of a civil action for damages based on the negligent act or omission of a physician or certain other health care providers. In the trial court appellant contended the statute was unconstitutional in violation of Section 59 of the Constitution of Kentucky. Declining to reach the constitutional issue on the merits, the Court of Appeals majority held that appellant's failure to give notice to the Attorney General of the constitutional challenge raised in the trial court was fatal to the appeal as being in violation of KRS 418.075 and CR 24.03.

More than five years after the date of the alleged medical malpractice, appellant brought this action against appellee for damages. Appellee responded with a plea of limitation based on KRS 413.140(2). Appellant responded that this statute was unconstitutional, but neither appellant, appellee nor the trial court gave any notice to the Attorney General that an issue had been raised as to its constitutionality. In due course, the trial court entered judgment upholding the constitutionality of the statute and dismissing appellant's complaint.

After the appeal to the Court of Appeals was docketed, a panel of that court, in accordance with the procedure outlined in Stewart v. William H. Jolly Plumbing Co., Ky.App., 743 S.W.2d 861 (1988), noted the absence of notice of the constitutional challenge to the Attorney General and directed the clerk to serve copies of appropriate documents upon the Attorney General and granted twenty days for his response to the opportunity to intervene. The Attorney General timely filed a notice indicating he did not intend to intervene. Thereafter, the Court of Appeals was convened en banc and with eight judges concurring and five judges dissenting, dismissed the appeal for appellant's failure to provide notice to the Attorney General of the constitutional challenge to the statute in the trial court.

In this Court appellant asserts that KRS 418.075 and CR 24.03 do not apply; that appellee waived any objection to appellant's failure to notify the Attorney General by failing to raise the issue in the trial court; and that the rule and statute have been substantially complied with because the Attorney General was notified of the constitutional challenge, albeit not in the trial court. Appellee disputes these contentions and argues that notice to the Attorney General is a condition precedent to appellate review of the constitutional challenge; that this Court's policy of substantial compliance does not apply to this case; and that CR 24.03 imposes the burden of notification upon the movant.

During oral argument and in colloquy between the Court and counsel, an issue emerged as to whether a valid judgment determining constitutionality could be entered by a trial court in the absence of prior notification to the Attorney General. From our examination of KRS 418.075 and CR 24.03, we are convinced there is a compelling public purpose to be served by the notification rule. The language of the statute and rule evinces a strong public policy in favor of notification to the Attorney General whenever the constitutionality of a statute is placed in issue despite the location of KRS 418.075 in the Kentucky Declaratory Judgments Act and the appearance of CR 24.03 in our rule relating to intervention.

KRS 418.075 states in part as follows:

"In any proceeding which involves the validity of a statute, the attorney general of the state shall, before judgment is entered, be served with a copy of the petition, and shall be entitled to be heard...." (emphasis added)

Among the purposes underlying this statute is the right of the people, by the chief law officer, to be heard on matters affecting the validity of duly enacted statutes. KRS 15.020. Likewise, the prevention of collusive, non-adversarial proceedings between or among litigants which might result in the invalidation of state law is a matter of public interest. It is in the interest of the people to afford the Attorney General an opportunity to participate on their behalf, whether it is to argue for or against the validity of a statute. In a proper case, the Attorney General may argue that a statute is unconstitutional. Comm. ex rel. Hancock v. Paxton, Ky., 516 S.W.2d 865 (1974).

Appellee urges us to hold, in effect, that failure of a party advocating unconstitutionality to give notice renders the trial court's decision on the issue non-reviewable. Inherent in such an argument is the view that when notice to the Attorney General is omitted, a trial court is empowered to decide the constitutional issue without any possibility of appellate review. By this reasoning, a particular circuit could invalidate a statute and such would be the law only of that case or in that circuit. Such a result would encourage inconsistency among circuits, and would also deny reviewing courts any power to modify the constitutional decision so rendered.

In considering the question before the Court, we are of the opinion the intent of the Legislature in its enactment of KRS 418.075 is clear that no judgment shall be entered which decides the constitutionality of a statute until the Attorney General is given notice and an opportunity to be heard. In Dewey v. Allinder, Ky., 469 S.W.2d 548 (1971), this Court applied KRS 418.075 to an action which was not actually a declaratory judgment action, but which sought to have a statute declared unconstitutional. The Attorney General was not served with a copy of the complaint attacking the statute, nor was he properly given notice during the pendency of the proceedings by other means. This Court held that before entry of the judgment holding the statute unconstitutional, the Attorney General should have been served with a copy of the petition. Reversing the trial court, we said,

"[I]t is our opinion that the proper administration of justice requires that [the Attorney General] be served and given the opportunity to enter the litigation. We so direct." Id. at 550.

While our decision in Dewey v. Allinder, supra, did not expressly declare that a judgment entered in violation of the notice statute, KRS 418.075, was void, the rationale of that decision and the fundamental purpose of the statute leads to that conclusion. Numerous decisions from this Court and the Court of Appeals hold that judgments entered in violation of the Attorney General's notice statute are defective. Jefferson County Fiscal Court v. Trager, 300 Ky. 606, 189 S.W.2d 955 (1945), Smith v. Rogers, Ky., 702 S.W.2d 425 (1986), and Field v. Evans, Ky.App., 675 S.W.2d 3 (1984). Our decisions are consistent in recognizing the fundamental importance of such notice.

To assure compliance with the notice statute, we hold that it is the duty of all parties to give the required notice and the duty of the trial court to refrain from entry of judgment until the notice has been given. Unless the record shows that the requirements of KRS 418.075 have been observed, any judgment rendered which decides the constitutionality of a statute shall be void. While we endorse much of the reasoning and benefited from the thorough discussion of this issue in Stewart v. William H. Jolly Plumbing Co., Ky.App., 743 S.W.2d 861 (1988), we disagree with the result. It is our view that KRS 418.075 is mandatory and that strict enforcement of the statute will eliminate the procedural uncertainty.

Inasmuch as our decision constitutes a departure from certain previous decisions of this Court and the Court of Appeals, it is advisable to limit its application in an effort to avoid any effect on otherwise settled judgments. Accordingly, we hold that this decision applies only to cases now pending in trial courts, cases which may hereafter be brought, and those cases now pending on appeal in which the issue is raised. See Hilen v. Hays, Ky., 673 S.W.2d 713 (1984).

For the foregoing reasons, the Court of Appeals opinion and order dismissing the appeal is set aside, the judgment of the trial court is vacated, and the case is remanded to the trial court for further proceedings consistent with this opinion.

STEPHENS, C.J., and GANT and VANCE, JJ., concur. LEIBSON, J., concurs by separate opinion in which WINTERSHEIMER, J., joins.

COMBS, J., not sitting.

LEIBSON, Justice, concurring.

I concur in our holding only because it is far superior to the hypertechnical approach of the Court of Appeals. The Court of Appeals' "EN BANC" Opinion rewarded the appellee with victory on a procedural point that was unpreserved by contemporaneous objection, an error that could have been easily corrected by notice to the Attorney General at the trial court level had it been raised. See Miles v. Shauntee, Ky., 664 S.W.2d 512 (1984).

The problem in this case is no one at the trial level notified the Attorney General that an issue involving the constitutionality of a state statute surfaced during argument over a motion to dismiss on plea of statutory limitations. The best solution to this problem is presented in Stewart v. William H. Jolly Plumbing Co., Ky.App., 743 S.W.2d 861 (1988). The Opinion of the Court states:

"While we endorse much of the reasoning and benefited from the thorough discussion of this issue in Stewart v. William H. Jolly Plumbing Co., Ky.App., 743 S.W.2d 861 (1988...