Zane Greer v. Commonwealth of Kentucky

RENDERED: NOVEMBER 10, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1500-MR
ZANE GREER APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
v. HONORABLE JOHN T. ALEXANDER, SPECIAL JUDGE
ACTION NO. 21-CI-00061
COMMONWEALTH OF KENTUCKY;
RICK HARDIN, IN HIS OFFICIAL CAPACITY; AND
CITY OF GLASGOW POLICE DEPARTMENT APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
MAZE, JUDGE: Zane Greer (Greer) appeals from an order of the Grayson Circuit
Court granting Rick Hardin’s (Hardin) motion to dismiss. Having reviewed the
record and the relevant law in this case, we find no error and therefore, we affirm.
Greer was formerly employed as a police officer by the City of
Glasgow Police Department. Following a shooting which injured another officer,
the Glasgow Police Chief ordered an internal investigation. The resulting report
contained the finding that “[i]t appeared that Officer Greer was untruthful/deceitful
during his interview with Internal Affairs Investigator according to interviews that
I had obtained during the internal investigation.” Greer subsequently left his
employment with the Glasgow Police Department and joined the Grayson County
Sheriff’s Department as a deputy.
However, upon learning of the existence of the statement contained in
the internal investigation report, Hardin placed Greer on a so-called “Brady list” of
officers with substantiated allegations of untruthfulness. He communicated that
information to the Grayson County Sheriff by letter dated February 21, 2021, in
which he stated that a copy of the “Glasgow Police Department’s Internal
Investigation report” would be included as supplemental discovery on “every case
that Deputy Zane Greer is associated with . . . .”
Greer filed his original petition for declaration of rights on March 1,
2021, naming the Commonwealth of Kentucky,1 “Rick Hardin, in his official
capacity as Commonwealth Attorney for Grayson County” and the City of
1
The Commonwealth of Kentucky was dismissed from the circuit court action by agreed order
entered March 19, 2021, on the grounds that it was redundant to name the Commonwealth where
Hardin was named in his official capacity as Commonwealth Attorney.
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Glasgow Police Department. On April 7, 2021, Greer was given the option to
resign or be terminated by the Grayson County Sheriff’s Office because Hardin
would no longer call him as a witness.
On April 20, 2021, Hardin moved the court to dismiss the declaration
of rights action on the grounds that Greer lacked standing, a declaration of rights
action is not the proper mechanism to seek relief, and the relief he seeks violates
the doctrine of separation of powers. On May 10, 2021, Greer moved the court for
leave to amend his petition to reflect his job loss. He also tendered his response,
arguing that the loss of employment granted him standing to pursue his claims.
Hardin filed his reply on May 28, 2021.
On August 13, 2021, the court entered its Order Granting Motion to
Dismiss. The court found that “Greer essentially asks the Court to manage and
direct the actions of an elected Commonwealth’s Attorney, who is an agent of the
executive branch.” As such, the court concluded that “the doctrine of separation of
powers precludes the relief requested.” This determination being dispositive, “the
Court states no position on the arguments regarding standing or the suitability of
this matter for declaratory judgment.” This appeal followed.
STANDARD OF REVIEW
When considering a motion to dismiss pursuant to CR2 12.02,
2
Kentucky Rules of Civil Procedure.
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pleadings are to be construed in the light most favorable to the plaintiff. Mims v.
Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky. App. 2007). Simply
put, “the question is purely a matter of law.” James v. Wilson, 95 S.W.3d 875, 884
(Ky. App. 2002). On appeal, the trial court’s decision is reviewed de novo.
Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000).
ANALYSIS
In Commonwealth, Cabinet for Health and Family Services,
Department for Medicaid Services v. Sexton By and Through Appalachian
Regional Healthcare, Inc., 566 S.W.3d 185, 192 (Ky. 2018), the Court held that,
“all Kentucky courts have the constitutional duty to ascertain the issue of
constitutional standing, acting on their own motion, to ensure that only justiciable
causes proceed in court, because the issue of constitutional standing is not
waivable.” The Court recognized that this is a jurisdictional issue since the circuit
court may determine only “justiciable causes,”3 holding that “if a circuit court
cannot maintain proper original jurisdiction over a case to decide its merits because
the case is nonjusticiable due to the plaintiff’s failure to satisfy the constitutional
standing requirement, the Court of Appeals and this Court are constitutionally
precluded from exercising appellate jurisdiction over that case to decide its
merits.” Id. at 196-97.
3
KY CONST. § 112 (5).
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“[F]or a party to sue in Kentucky, the initiating party must have the
requisite constitutional standing to do so defined by three requirements: (1) injury,
(2) causation, and (3) redressability.” Id. at 196. Specifically, the Court held that
“[a] plaintiff must allege personal injury fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by the requested relief.” Id.
(citing Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 822 L. Ed. 2d 556(1984), overruled on other grounds by Lexmark Intern., Inc. v. Static Control
Components, Inc., 572 U.S. 118, 134 S. Ct. 1377, 1386, 188 L. Ed. 2d 392 (2014)).
In his Amended Petition for Declaration of Rights, Greer asked:
1. That the determination that the Petitioner was
“untruthful/deceitful” in the Glasgow Police Department’s
Internal Investigation is declared invalid as not warranted
under the facts.
2. That the Petitioner has been denied due process of law under
the Fifth and Fourteenth Amendments of the U.S.
Constitution in that he has been denied the opportunity to
contest being placed on the “Brady list.”
3. That the Petitioner be entitled to a due process hearing
before this court to determine his status as a “Brady cop.”
4. That the Petitioner’s denial of due process of law under the
Fifth and Fourteenth Amendments of the U.S. Constitution
in placing him on the “Brady List” without the opportunity
to contest such placement has resulted in a deprivation of
property without due process of law, the loss of his job and
his income.
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The “injury” alleged by Greer to confer standing herein is the “loss of
his job and his income.” The identity of Greer’s employer is key to the issue of his
due process claim. As stated in Buckner v. City of Highland Park, 901 F.2d 491,
494 (6th Cir. 1990), “[t]he due process clause requires that, prior to termination, a
public employee, with a property interest in his or her public employment, be given
oral or written notice of the charges against him or her, an explanation of the
employer’s evidence and an opportunity to present his or her side of the story to
the employer. Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304, 310 (6th Cir.
1988), on remand from, Loudermill, 470 U.S. 532, 105 S. Ct. 1487.” (Emphasis
added.) However, this Court has been presented with no authority requiring a non-
employer to afford due process protections to an individual in connection with lost
employment. Thus, as Hardin was not Greer’s employer, he did not perpetrate any
injury upon him by failing to provide notice and opportunity to be heard prior to
being placed on the “Brady list.”
Further, even if the Court accepted the “injury” element of the
standing analysis as a given, the issue of “causation” fails. The wrongful conduct
alleged by Greer is the finding that he was untruthful or deceitful in the Glasgow
Police Department’s internal investigation. However, Hardin took no part in the
investigation or the preparation of the report. Thus, he is unconnected to the
wrongdoing and too many steps are required to reason from the internal
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investigation and report from the Glasgow Police Department, through the Brady
determination and notification by Hardin, to Greer’s termination by the Grayson
County Sheriff’s Office. Kentucky Unemployment Insurance Commission v.
Nichols, 635 S.W.3d 46 (Ky. 2021).
However, it is the issue of “redressability” which most soundly
defeats Greer’s claim against Hardin. If the relief that Greer seeks were granted
and there were a determination that the findings of the Glasgow Police
Department’s investigation as to his truthfulness were erroneous, the original
report would continue to exist. It is the existence of the report that triggers
Hardin’s obligation to disclose his credibility issues to defense counsel under
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Even if the court granted the hearing sought by Greer to determine his
status as a “Brady cop” it would not result in an end to uncertainty as contemplated
in the declaratory judgment statute. Instead, the court would be forced into the
unenviable position of trying to determine whether the existence of the Glasgow
Police Department’s internal investigative report stating that he had been
“untruthful/deceitful” does or does not constitute impeachment evidence in each
and every case, including those that have not even been charged yet. As “specific
instances of conduct” may well be an appropriate area of inquiry for impeachment
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purposes on cross-examination pursuant to KRE4 608(b), they may also be
appropriate for production as Brady material. U.S. v. Bagley, 473 U.S. 667, 767,
105 S. Ct. 3375, 3381, 87 L. Ed. 2d 481 (1985).
Greer has cited the Court to the case of Sandefur v. Dart, 979 F.3d
1145 (7th Cir. 2020). Sandefur was terminated from a county sheriff’s police
academy training program based upon inconsistent statements regarding his
medical status and eligibility for a handicapped placard. He filed suit for violation
of the Americans with Disabilities Act of 1990, 42 U.S.C.5 § 12122, and for due
process violations arising out of his placement on the sheriff’s office’s “Brady
list.”
The Court devoted a mere four paragraphs to Sandefur’s due process
claims. Although the Court conceded that he may have been deprived of a liberty
or property interest by such placement, the Court concluded that because he had
been given seven days in which to dispute his disqualification for promotion, he
simply failed to do so. In this case, the Glasgow Police Department has stated in
its Answer that Greer accepted the internal investigation report as well as the
discipline imposed by the Chief and, therefore, has waived any right to appeal the
finding.
4
Kentucky Rules of Evidence.
5
United States Code.
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This Court finds the case of Roe v. Lynch, 997 F.3d 80 (1st Cir. 2021),
to be more germane to these facts. Roe, like Greer, was a police officer terminated
by the town based upon a letter sent to the police chief by Lynch, the prosecuting
attorney. She advised that, based upon allegations of misconduct by Roe and due
to her obligations under Brady, she had determined Roe to be lacking in credibility
and therefore would no longer prosecute cases in which he was involved. Roe
filed suit in state court alleging due process violations and seeking mandamus and
declaratory relief. The action was removed to federal court where it was then
dismissed on limitations grounds, without addressing Roe’s due process claims.
On appeal, the Court concluded that Roe had failed to state a due
process claim against Lynch and, therefore, dismissal was proper. The Court
found that Roe had failed to assert that he had been deprived of any liberty or
property interest, noting that “Roe does not have a protected liberty or property
interest in the prosecutor’s charging decisions, decisions regarding what materials
are disclosed to criminal defendants during discovery, or decisions as to who to
call to testify at trial.” 997 F.3d at 85. Although the Court conceded that “a public
employee may under certain circumstances have a protected property interest in
continued employment[,]” it held that “Lynch was not his employer and she did
not make the decision to terminate his employment – the Town Manager did.” Id.
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Finally, there can be no redress for Greer in any forum without a
violation of the separation of powers doctrine. As noted in Legislative Research
Commission By and Through Prather v. Brown, 664 S.W.2d 907, 912 (Ky. 1984)
(citing Arnett v. Meredith, 275 Ky. 223, 121 S.W.2d 36, 38 (1938)), “the
separation of powers doctrine is fundamental to Kentucky’s tripartite system of
government and must be ‘strictly construed.’” Kentucky Constitution § 28
prohibits any one of the three branches of government from exercising “any power
belonging to either of the others[.]”
The enforcement of the criminal laws of this Commonwealth lies
within the “exclusive” mandate of the executive branch. Commonwealth ex rel.
Brown v. Stars Interactive Holdings (IOM) LTD., 617 S.W.3d 792, 801 (Ky.
2020). This function includes “the decision whether or not to prosecute, and what
charge to file or bring before a grand jury[.]” Flynt v. Commonwealth, 105 S.W.3d
415, 424 (Ky. 2003). The quantity and quality of evidence are significant factors
in a prosecutor’s decision to charge an offense. A prosecutor’s charging decision
should involve a consideration of whether his witness’s credibility may be
questioned at trial. It must, therefore, include a consideration of the existence of
Brady material. The judiciary is without authority to direct the Commonwealth
which offenses to charge. Hoskins v. Maricle, 150 S.W.3d 1, 20 (Ky. 2004).
Clearly, as recognized by the lower court, the judiciary is without the constitutional
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authority to direct Hardin or any other Commonwealth Attorney to prosecute or
not prosecute his case in any certain manner.
CONCLUSION
Because Greer alleged no injury properly attributed to Hardin which
was “fairly traceable” to his action in placing Greer on his office’s “Brady list” that
can be redressed by the relief sought in Greer’s declaratory judgment action, this
Court finds that he lacked constitutional standing to bring the action against
Hardin.
Accordingly, the Grayson Circuit Court’s Order Granting Motion to
Dismiss is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE RICK
HARDIN:
Thomas E. Clay
Louisville, Kentucky Brett R. Nolan
Alexander Magera
Frankfort, Kentucky
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