Louisville GAY Hate Crimes case going to KY SUPREME COURT

Read and see how Louisville KY is violating the FEDERAL HATE CRIMES STATISTICS act, and the civil rights of gays, and hiding HATE CRIMES AGAINST GAYS, in this case just filed at the KY SUPREME COURT

COMMONWEALTH OF KENTUCKY

SUPREME COURT OF KENTUCKY

Case No. _______________

COURT OF APPEALS CASE NO. 2007-CA-002066

APPEAL FROM THE JEFFERSON CIRCUIT COURT

HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE

ACTION NO. 03-CI-6808

JESSE GARON, A/K/A JESSE PERKINS MOVANT

V.

LOUISVILLE AND JEFFERSON COUNTY

HUMAN RELATIONS COMMISSION, and

STEVEN REDMON RESPONDENTS

MOTION FOR DISCRETIONARY REVIEW

Comes Movant, Jesse Garon, by counsel, pursuant to Civil Rule 76.20, and moves the Supreme Court for discretionary review of the Opinion Affirming rendered by the Court of Appeals on March 27, 2009.

1. The movant is Jesse Garon, a/k/a Jesse Perkins, represented by Elizabeth A. Coleman, Coleman, Roles & Associates, PLLC, 1009 South Fourth Street, Louisville, Kentucky 40203.

The respondent, Louisville and Jefferson County Human Relations Commission is represented by William J. Walsh and Mark W. Dobbins, Tilford Dobbins Alexander Buckaway & Black, PLLC, 401 West Main Street, Suite 1400, Louisville, Kentucky 40202.

The respondent, Steven Redmon, is represented by Jeffrey B. Skora, 600 West Main Street, Suite 300, Louisville, Kentucky 40202; and, Michael R. Mazzoli, Cox & Mazzoli, PLLC, 600 West Main Street, Suite 300, Louisville, Kentucky 40202.

2. The date of the final disposition by the Court of Appeals was March 27, 2009.

3. No supersedeas bond has been executed.

4. (a) Statement of material facts: On August 10, 2001, Movant, Jesse Garon, submitted a complaint to the Human Relations Commission ("HRC"). Garon alleged violations of the Louisville City Code, Chapter 98, commonly referred to as the "Hate Crimes Ordinance," against Steven Redmon. (The ordinance was subsequently renumbered, although the content at issue remains identical, and currently appears in Chapter 92 of the Louisville Metro Code of Ordinances.) Garonís allegations included Redmonís blockage of access to the alley behind his home, his denial of access to Garon and his tenantsí residence, the vandalizing of Garonís real and personal property by Redmon, and Redmonís use of epithets with regard to Garonís sexual orientation.

On November 20, 2002, the HRC issued a finding of reasonable cause that Redmon violated the Hate Crimes Ordinance. Mr. Garon was directed by the HRC to provide an accounting of all actual damages he suffered. Mr. Garon provided documentation to the HRC, including a two-page accounting of property damage, lost income, and lost rental income he suffered as a result of the violations of the Hate Crimes Ordinance by Steven Redmon. Mr. Garonís total actual damages were $48,843.99. The HRC then instructed Mr. Garon use ten (10) times his actual damages as a figure for punitive damages.

In November 2002, Executive Director to the HRC, Kellie Watson, provided to Redmonís counsel, "a proposed Conciliation Agreement, which the Commission feels will make the Complainant whole." The Conciliation Agreement reflected the total figures Garon had prepared at the HRCís direction, $537,283.89.

Nearly eight months later on July 14, 2003, the HRC notified Redmon the administrative hearing before a three-member panel was scheduled for August 11, 2003. On August 5, 2003, Redmon filed his Petition for a Writ of Prohibition with Jefferson Circuit Court. On January 31, 2005, the Circuit Court denied Redmonís Petition. Redmon, thereafter, appealed the denial to the Court of Appeals.

In the 2005 appeal made by Redmon, the Court of Appeals ordered the parties to attend a prehearing conference pursuant to CR 76.03(9)(10). Appellant Jesse Garon was not provided the Court of Appeals Order, because the courtís records indicated that at that time Mr. Garon was represented by the same counsel as the HRC. The only information Garon received about the prehearing conference was from counsel for the HRC and stated, "[Redmonís] attorney recently asked us to attend mediation and the Court of Appeals has offered to provide a mediator." Garon was "encouraged" to attend the prehearing conference, but he was never told that it was occurring pursuant to a Court Order which stated on its face that all parties were to be available to give authority for settlement.

Garon wrote to counsel for Steven Redmon and counsel for the HRC prior to the mediation to express his understanding based on advice from the HRC and HRCís counsel that the period for mediation had ended years before, as was stated in the Ordinance, and that no one had authority to enter a settlement on his behalf. Garon was unaware that his presence was required by the Court of Appealsí Order. Garonís understanding was that the basis for Redmonís appeal was to allow the Court of Appeals an opportunity to determine whether Redmon was entitled to a jury trial or whether the administrative hearing process, as provided for in the Ordinance, was the appropriate venue for resolution of Garonís claims. Garonís desire was for the Court to have an opportunity to address the issue, not only for his claims but also for future claimants who utilized the HRC.

The prehearing conference at the Court of Appeals offices occurred on June 14, 2005, without Garon. A settlement was reached. The proposed settlement amount was less than 1% of that originally demanded.

After the prehearing conference, on the motion of the HRC, the Court of Appeals remanded the case to the Jefferson Circuit Court, "For the limited purpose of proceedings seeking Ďa declaratory finding as to whether HRC may settle the complaint on its own initiative or whether it must have Mr. Garonís consent to do so." The HRC, thereafter, filed a Motion for Declaratory Relief with the Circuit Court requesting it be permitted to settle its cause of action against Steve Redmon and for the Court to enjoin Defendant Garon from interfering with the HRCís settlement of its action against Steve Redmon, among other things. At this point in the proceedings it became apparent to Garon that he and the HRC had different objectives, and Garon determined that he should employ separate counsel to represent his interests. He then employed the undersigned.

The Circuit Court issued an Opinion and Order on September 25, 2007, granting HRCís motion to settle the complaint against Redmon without the consent of Garon. Garon timely filed his Notice of Appeal on October 12, 2007. Oral arguments were heard, and the Court of Appeals rendered its opinion March 27, 2009, affirming the Circuit Courtís holding, with Judge VanMeter dissenting. The Court of Appealsí Opinion at page 7 reflects that the Court selected certain sections of the Ordinance and ignored other sections, relying upon the canons governing construction of legislation in its review of the Hate Crimes Ordinance.

(b) Questions of law involved: 1) Where the Court of Appealsí Opinion affirming relies upon the "canons governing construction of legislation," was it error for the Court to affirm the Circuit Courtís opinion and give no weight to the plain language of the Hate Crimes Ordinance which required a Hearing be held within 90 days of the complaint being filed if no settlement was reached during that time? (Ct. App. Opinion, p. 7.) 2) Where a settlement negotiation occurs in a Human Relations Commission case pursuant to CR 76.03(9)(10) and a Court of Appealsí Order directs that "attorneys shall have their clients available to give authority for possible negotiation of settlement", may a settlement still occur without the consent of the Complainant

(c) The Opinion of the Court of Appeals must be reviewed for the following reasons:

It is movantís position the court erred by interpreting only the conciliatory proceedings provisions of the Ordinance without considering the Hate Crimes Ordinance as a whole. The Court of Appealsí Opinion Affirming relied, in large part, upon the canons of statutory construction in determining that Garonís complaint filed with the HRC could be settled without his consent. In pertinent part, the Court wrote:

Nothing in the regulations governing the HRC provides that the complainant be included in the conciliatory proceedings. If we add this requirement, we would in fact be adding language to the regulation. This would be contrary to canons governing construction of legislation. See Consolidated Infrastructure Management Authority, Inc. v. Allen, 269 S.W.3d 852, 855 (Ky. 2008) (quoting Commonwealth v. Harrelson, 14 S.W.3d 541, 546 (Ky. 2000)) ("We are not at liberty to add or subtract from the legislative enactment or discovery meanings no reasonably ascertainable from the language used."). Ct. App. Opinion, pp. 7-8.

Canons of statutory construction also provide that when the Court endeavors to interpret one section of a statute, the court must consider the whole statute. City of Louisville v. Kohler, 264 S.W.2d 80 (Ky. 1954). If the courtís opinion is to be given its full weight, then the entire Ordinance must be examined and its words given their plain meaning. In addition to statements regarding conciliatory proceedings, the Hate Crimes Ordinance also provides the timeline and process for resolution of the complaint. The Ordinance provides a settlement through a conciliation agreement or otherwise must be achieved within ninety (90) days from the time the Complaint was filed. The Ordinance makes clear a time for "settlement" through conciliation agreement or otherwise had passed. Section 98.50(d) provides once the HRC determines probable cause exists to pursue the Respondent, "the Commission staff shall endeavor to provide redress for the Complainant by conference, conciliation and persuasion with the Respondent." Section 98.51(a), however, limits the period in which a conciliation agreement may be reached and requires that if a conciliation agreement is not timely reached a hearing is to be held:

Within ninety (90) days after a Complaint is filed, unless the Commission has issued an orderÖstating the terms of a conciliation agreementÖthe Commission shall serve on the RespondentÖa written noticeÖrequiring the Respondent to answer the allegations of the Complaint at a hearing before a hearing officer appointed by the Commission at a time and place specified in the notice. (Emphasis added.)

Garon submitted his complaint to the HRC on August 10, 2001. The Commission issued a finding of reasonable cause that Redmon violated the Hate Crimes Ordinance on November 20, 2002, fifteen months after Garonís complaint was filed and thirteen months beyond the deadline declared by the Ordinance. Additionally, the HRC provided a Conciliation Agreement to Redmon on that same date to settle Garonís complaint without a hearing, which was not accepted by Redmon. Nearly eight months later on July 14, 2003, and twenty months past the deadline established by the Ordinance, the HRC notified Redmon the administrative hearing before a three-member panel was scheduled for August 11, 2003. Thereafter Redmon appealed the issue of his entitlement to a jury trial which halted the proceedings. The conciliation agreement reached in this matter occurred in 2005, when Redmonís appeal was pending before the court.

Since the conciliation agreement of November 2000, was not accepted, the only action the plain language of the Hate Crimes Ordinance provided that the HRC could perform was to hold an administrative hearing. Ignoring these procedural mandates found within the Ordinance violates the rules of statutory construction.

Even if the procedural requirements of the Hate Crimes Ordinance were to be ignored, the conciliation agreement that was entered into under the auspices of the Court of Appealsí Prehearing Conference Order required the presence of all parties. The Court of Appeals did not address the implication of the Order in its March 27, 2009, opinion.

In pertinent part, the Court of Appealsí Order required that, "Attorneys shall have their clients available to give authority for possible negotiation of settlement." Under the Court of Appeals Order, Garon, who was identified as a party before the court, was required to be present to give authority on possible settlement negotiations. (The courtís Order was not provided to Garon, because the courtís records indicated he was represented by counsel provided for him by the HRC.) Without Garonís presence, under the Court of Appealsí Order, no final authority could be given on the negotiations.

Finally, the Court of Appealsí Order should be reviewed as this was an issue of first impression before the Court and will establish a precedent for all future claimants who bring complaints before the Human Relations Commission. This issue, moreover, resulted in a divided Court of Appeals panel, with one judge dissenting.

For the foregoing reasons, it is therefore respectfully submitted that this motion for discretionary review should be granted.

5. Movant does not have a petition for rehearing or a motion for reconsideration pending before the Court of Appeals.

6. No other party to this proceeding has a petition for rehearing or motion for reconsideration pending before the Court of Appeals.

Attorney for JESSE GARON ( Attorney Details available on request)