HOSPITAL OF LOUISA, D/B/A THREE RIVERS MEDICAL CENTER V. JOHNSON COUNTY FISCAL COURTAnnotate this Case
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RENDERED : MARCH 24, 2011
NOT TO BE PUBLISHED
ozUyrrzt C~Vurf Of
HOSPITAL OF LOUISA,
D / B /A THREE RIVERS MEDICAL CENTER
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2008-CA-001302-MR
JOHNSON CIRCUIT COURT NO . 07-CI-00103
JOHNSON COUNTY FISCAL COURT
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
Ernest Napier was a 56-year-old Vietnam veteran who, on April 26, 2006,
was arrested and became a prisoner at the Big Sandy Regional Detention
Center (hereinafter "Big Sandy") in Johnson County, Kentucky, following an
assault against his girlfriend, Paula Compton. A detailed account of the
pretrial proceedings is necessary because these developments are germane to
the ultimate integrity of Napier's bond release which is at the heart of the case .
Upon his initial arrest, Napier's bond was set at $100,000 cash by the
Johnson District Court. At a preliminary hearing held on May 3, 2006, the
Johnson District Court found probable cause that Napier had committed first-
degree assault and the case was bound over to the grand jury . At that time,
Napier's bond was reduced to $50,000 cash. Napier subsequently filed a
motion for bond reduction and, on June 7, 2006, the motion was sustained
and an agreed order for pretrial home incarceration was entered. Then, on
July 3, 2006, the Johnson District Court entered an order dismissing the case
against Napier for failure to indict. That order stated that Napier "shall be
immediately released from custody and/or any bond obligation ."
Napier was eventually indicted by a Johnson County Grand Jury and
charged with one count of assault in the first degree and for being a persistent
felony offender in the second degree . He was arrested on August 3, 2006 on
the warrant of arrest on indictment and his bond was set at $50,000 cash . He
was again lodged in Big Sandy. Napier was subsequently found to be indigent
and a public defender was appointed and defended him in court . On March 3,
2007, Napier entered a guilty plea to a reduced charge of assault in the second
degree and the persistent felony offender charge was dismissed. He was
sentenced to seven years imprisonment.
The issue before us involves Napier's releases from Big Sandy on two
occasions prior to his guilty plea and sentencing . On August 8, 2006, Napier
was released from Big Sandy for the sole purpose of obtaining medical
treatment at the Hospital of Louisa, d/b/a Three Rivers Medical Center
(hereinafter "Three Rivers") . Napier's release was conditioned upon his
returning to the detention center after being discharged from Three Rivers.
Napier was a patient at Three Rivers from August 8 to August 11 . The bill ,for
his treatment was $34,477 .17, based upon the full rate, and $4,671 .00, based
upon the Medicare rate. Later that month, on August 30, 2006, Napier was
once again released from Big Sandy and admitted to Three Rivers on the
condition that he return to Big Sandy upon completion of his medical
treatment. During this hospital visit, Napier was a patient from August 30 to
September 1 . The cost of this stay was $26,057 .87, at the full rate, and
$7,669 .00, at the Medicaid rate. Napier was also released from the custody of
Big Sandy for medical treatment on two subsequent dates in October of 2006 .
However, none of the medical costs associated with either of these releases
were incurred at Three Rivers and, thus,, are not at issue in this appeal .
It is uncontested that Napier's medical treatment at Three Rivers in
August and September was of an emergency nature and could not be
postponed. The Veterans Administration refused to pay the hospital charges
because Napier was-at least from their perspective-incarcerated . It is also
uncontested that, at all times and for the purposes of this decision, Napier
remained indigent. Further, there is no dispute that the purpose behind Big
Sandy allowing Napier to be released from its custody in order to be admitted
to Three Rivers was to enable the Johnson County Fiscal Court to avoid paying
Napier's medical bills. The following is from the deposition of Henry "Butch"
Williams, administrator of Big Sandy, who was deposed on February l, 2008,
as part of discovery in this action :
Q. What is the practice on releasing prisoners on their own
recognizance and letting them return for medical treatment?
A. Basically, to get the county out , of paying the bill, I guess .
Three Rivers brought action against the Johnson County Fiscal Court,
claiming that it was responsible for the payment of Napier's medical bills
because Napier was a Johnson County prisoner in the custody of Big Sandy at
the time of his hospitalizations at Three Rivers . The facts of the case are
uncontested. The Johnson Circuit Court entered summary judgment on June
12, 2008, in favor of the Johnson County Fiscal Court. It held that, even
though Napier was released solely for the purpose of obtaining medical
treatment with the condition that he return to Big Sandy, he was not a
prisoner for whom medical expenses were required to be paid by the county.
The Court of Appeals affirmed the judgment and this matter is now before us
KRS 441 .045(3) requires that "the cost of providing necessary medical,
dental, and psychological care for indigent prisoners in the jail shall be paid
from the jail budget." We must address the question of whether Napier was, at
the time he received his medical treatment at Three Rivers, a prisoner of Big
Sandy, or whether he was out on bond or on his own recognizance with certain
non-financial conditions . The following is a chronological listing of Napier's
pertinent releases and his bond conditions :
1 . August 18, 2006 : $50,000 unsecured bond to go to hospital for
treatment. To return to jail at 5 p .m. Bond will then revert back to
$50,000 cash . No violation of law and no new arrest per judge .
2 . August 30, 2006 : $50,000 unsecured bond. To return to jail when
released from hospital. (Napier was released from hospital on
It is important to note that the $50,000 cash bond was not, in reality,
reduced when Napier was at liberty to seek medical treatment at Three Rivers .
Rather, the bond was simply lifted with no financial conditions so that Napier
could be released from custody, obtain medical treatment, and then return to
Big Sandy, where the cash bond was reinstated.
It is also significant to note that upon final sentencing, Napier was given
310 days credit for time spent in custody. A review of the record reflects that
this credit includes the days Napier was released from Big Sandy for medical
treatment. He would not have been entitled to jail credit if he was free on
bond. Bartrug v. Commonwealth, 582 S.W .2d 61 (Ky .App . 1979) . However, if
Napier was hospitalized while still being considered "in custody," he would be
entitled to jail credit . Prewitt v. Wilkinson, 843 S .W .2d 335 (Ky.App . 1992) .
Therefore, affording Napier jail time credit for the time he was receiving outside
medical services is inconsistent with him not being considered "in custody"
during that time .
The provisions of RCr 4 .00 pertain to pretrial release through the posting
of bail or other conditions. The obvious purpose of the criminal rules
concerning bail is to ensure the accused's appearance at court. RCr 4 .12 also
authorizes the court to "impose any other conditions, including conditions
requiring the defendant to return to custody after specified hours ." Likewise,
KRS 431 .520(6) specifically allows the court to "[i]mpose any other condition
deemed reasonably necessary to assure appearance as required, including a
condition requiring that the person return to custody after specified hours."
KRS 520.010(2) defines custody as being any "restraint by a public
servant pursuant to a lawful arrest, detention, or an order of court for law
enforcement purposes, but does not include supervision of probation or parole
or constraint incidental to release on bail ." In other words, if a person is
released from the custody of the jail to go to work and return at certain times,
that person is still in custody. That is considered "restraint ." However, if that
person has posted bond and is out on that form of release, then he is no longer
As noted by the Court of Appeals, it is not necessary that a person be
physically inside the confines of the jail to still be considered a prisoner. The
definition of escape, under KRS 520 .010(5), includes "failure to return to
custody or detention following a temporary leave granted for a specific purpose
or for a limited period ." Therefore, an inmate failing to return to jail at a
specified time, having been released for work purposes, can be charged with
and convicted of escape . Reynolds v. Commonwealth, 113 S .W.3d 647 (Ky.App.
2003) ; Commonwealth v. Johnson, 615 S.W .2d 1 (Ky.App . 1981) ; Weaver v.
Commonwealth, 156 S .W .3d 270 (Ky. 2005) . "A prisoner who has been favored
by being made a trusty and given a degree of liberty by employment outside
prison walls is still in lawful control and custody." Cutter v. Buchanan, 286
S .W .2d 902, 903-904 (Ky. 1956) (citing 30 C.J .S ., Escape, § 5) .
We find that the status of Napier, upon release from Big Sandy, was
similar to that of a person who is released from the confines of the jail to go out
to work and return at a designated time without posting bond, or who is out on
furlough . What distinguishes this case from Reynolds and Johnson is that,
here, there were actual bond forms prepared and signed by Napier and other
court officials. Therefore, strictly as a matter of form, Napier was "out on bond"
at the time he received medical services at Three Rivers. We cannot find fault
with the analysis of the Court of Appeals that Napier was technically released
on bail pursuant to the appropriate forms. However, we believe that the bond
forms executed in this case were purely a paper trail intended to cover what
was, in practice, a sham and subterfuge .
We agree that the reality of this case is that Napier was "dumped" on
Three Rivers, who has been stuck with the expenses of his medical care . As
Judge Wine said in his concurring opinion: "It is clear that the Appellee,
Johnson County Fiscal Court, through a carefully coordinated effort, has
avoided the onerous obligation of paying for a prisoner's medical care." We do
not believe our courts need remain powerless to look behind the form to the
substance which is so evident in this case. While the bonding court may have
had the appropriate authority under the rules and statutes to maneuver the
system to fit the fiscal interests of the county, such authority must be checked
when it is abused. The purpose of bail is to guarantee the appearance of a
defendant and compliance with the terms of a bond . The standard for review
as to the appropriateness of the bond is whether the trial court, in fixing the
bail, has abused its discretion . Long v. Hamilton, 467 S .W.2d 139 (Ky. 1971) .
This is a case of first impression for this Court.
Balancing the rights of the accused with the interest of society after a
person has, been charged with a crime, but not yet convicted, is one of the most
troublesome challenges for our trial judges. The presumption of innocence is
arguably the most revered principle of criminal justice in our United States . It
distinguishes us from other advanced nations in placing a shield around the
individual citizen from the powerful sway of government in the punishment of
crimes. To carry out this most hallowed concept, we have fashioned-through
our statutes, rules, and case law-a delicate framework for judicial discretion
in regard to pretrial restraint and confinement. It gives tremendous power to
our judges . Because this mechanism is guided by the presumption of
innocence, it is entitled to serious consideration . Therefore, when its purpose
is diverted to the siren call of money, it threatens to undermine the very
foundation of one of our most critical pillars of justice. We do not deem it
either wise or judicious to stand by and condone, through appellate absolution,
the "carefully coordinated effort" to subvert the system.
There are certain implied powers which are inherent in our Court and go
beyond actual fraud. This inherent authority encompasses "bad faith conduct,
abuse of judicial process, any deception of the court and lack of candor to the
court." Potter v. Eli Lily and Co., 926 S .W.2d 449, 454 (Ky. 1996) . "Even the
slightest accommodation of deceit or a lack of candor in any material respect
quickly erodes the validity of the process ." U.S. v. Shaffer Equipment Co., 11
F .3d 450, 457 (4th Cir. 1993) . "In addition to the Court's Constitutional rule
making power, the Court is also vested with certain `inherent' powers to do that
which is reasonably necessary for the administration of justice within the scope
of their jurisdiction." Smothers v. Lewis, 672 S .W .2d 62, 64 (Ky. 1984) (quoting
Craft v. Commonwealth, 343 S .W.2d 150, 151 (Ky. 1961)) . In Craft, we said,
while considering the rule making power and the judicial power to be one and
the same, that "the grant of judicial power [rule making power] to the courts by
the constitution carries with it, as a necessary incident, the right to make that
power effective in the administration of justice ." Id.
We do not find fraud or deception in the bonding actions of the Johnson
Circuit Court. The question of bad faith can be debated. The apparent
hospital visit to Mr. Napier by the victim--which apparently occurred during
one of his medical releases---seems to belie a good faith bond of $50,000 . But
there is no question that the use of the bonding procedure to avoid the expense
of incarcerating a defendant, as was done in this case, is an abuse ofjudicial
Courts are extended great discretion in the exercise of their bonding
powers . Abraham v. Commonwealth, 565 S .W.2d 152, 158 (Ky.App. 1997) ;
Long, 467 S .W .2d at 141 . We are acutely aware of the tremendous cost to local
governments of housing and taking care of inmates in our local jails .
Therefore, it is important to clearly state that a prisoner in need of medical
services may be-solely to avoid a financial hardship upon the county-released from custody on bond or non-financial conditions. In such instances,
the county may avoid responsibility of medical treatment. Those constraints,
however, . must not take on the badge of continual incarceration in the jail as
exists in this case.
A "bail bond" is a written understanding between an accused and the
Commonwealth of Kentucky . RCr 4 .00. In exchange for, release from custody,
the accused and/or surety agrees to certain conditions including, in some
instances, the posting of a cash bond. Miller v. Commonwealth, 192 Ky. 709,
234 S .W . 307 (1921) (explaining that bail is contract between sureties and the
state that the accused will appear in court at time and place designated to
answer charge and submit himself to trial and will be amenable to orders and
processes of court) .
Being an "understanding," a bail bond is subject to the constraints and
interpretations of contract law. We find the type of bail bond entered into by
the court in this case was both unconscionable and injurious to public policy.
Johnson v. Dalton, 318 S .W.2d 415, 417-18 (Ky. 1958) ("There is a class of
contracts known as `sham' writings which may be attacked by extrinsic
evidence to show that the purported agreement was not intended to be binding
on the parties .") . It has been said that "[w)here the writing is executed and
delivered as a sham, either in jest or for the purpose of concealing the real
transaction from others, it obviously is not adopted as the final and complete
expression of the real agreement." Johnson, 318 S .W.2d at 418 (quoting
Morgan, Basic Problems of Evidence, Vol. 2, American Law Institute (March,
If a contract or term thereof is unconscionable at the
time the contract is made a court may refuse to
enforce the contract, or may enforce the remainder of
the contract without the unconscionable term, or may
so limit the application of any unconscionable term as
to avoid any unconscionable result.
Restatement (Second) Contracts, § 208 .
A fundamental rule of contract law holds that, absent fraud in the
inducement, a written agreement duly executed by the party to be held, who
had an opportunity to read it, will be enforced according to its terms . Cline v.
Allis-Chalmers Corp ., 690 S .W.2d 764 (Ky.App. 1985) . The doctrine of
unconscionability has developed as a narrow exception to this fundamental
rule . Louisville Bear Safety Service, Inc. v. South Central Bell Telephone
Company, 571 S .W.2d 438, 440 (Ky.App. 1978) .
Also, it has been long standing law in this Commonwealth, going back for
over one hundred years, that a contract or agreement will not be enforceable if
it "tends to be injurious to the public, or is contrary to the public good."
Westerfield-Bonte Co. v. Burnett, 176 Ky. . 188, 195 S .W . 477, 479 (1917) . See
also Kentucky Assn ofHighway Contractors v. Williams, 213 Ky. 167, 280 S .W .
937 (1926) ; Hennis v. B. F. Goodrich Co., 349 S .W .2d 680 (Ky. 1961) ; Kirwan's
Adm'r v. Citizens' Union Nat. Bank, 222 Ky. 65, 299 S.W . 1104 (1927);
Robinson's Trustee v. Hamilton, 1873 WL 11145 (Ky.App . 1873) .
Simply put, the bond agreement in this case is both unconscionable and
against public policy. We hold it an abuse of discretion for the trial court to
engage in a sham bond agreement. Therefore, it is a nullity and unenforceable
for the purpose of orchestrating exoneration of the county from its lawful
obligation under KRS 441 .045(3) . Napier was, therefore, a prisoner at the Big
Sandy Regional Detention Center, on medical release, during his
hospitalizations at Three Rivers Medical Center in the same manner as
prisoners who are given work release or are on furlough and who are obligated
to return to jail upon completion of the authorized work hours .
Based upon the foregoing, we hereby reverse the decision of the Court of
Appeals and remand this matter to the trial court for further proceedings
consistent with this opinion .
Cunningham, Noble, Schroder and Scott, JJ., concur . Venters, J.,
dissents by separate opinion in which Minton, C .J ., and Abramson, J ., join .
VENTERS, J ., DISSENTING : Although I agree with the majority's
conclusion that the procurement of the inmate's release on bail so that the
county might evade its duty to provide medical care for an indigent inmate was
a misuse of the rules and statutes that govern release on bail, the circuit
judge's complicity in that artifice was an abuse of discretion which cannot be
addressed in this procedural context. I cannot escape the conclusion that,
justly or unjustly, KRS 441 .045 provides no platform from which the hospital
may assert a claim against the county government . I therefore respectfully
While not raised by the parties or the lower courts, I believe the decision
in Jewish Hosp. Healthcare Services, Inca v. Louisville/Jefferson Country Metro
Government, 270 S.W.3d 904 (Ky. App. 2008), is dispositive of this case by its
holding that KRS 441 .045 does not waive sovereign immunity upon claims
brought in relation to a county's duty to provide health care for indigent
prisoners. Upon application of this holding, the Johnson Circuit Court was
without jurisdiction to entertain Three Rivers's lawsuit against Johnson County
Fiscal Court from its inception . Accordingly, I would vacate the opinion of the
Court of Appeals and remand the cause to the circuit court for dismissal of the
THREE RIVERS'S CLAIM IS BARRED BY SOVEREIGN IMMUNITY
In Jewish Hospital, the Court of Appeals addressed, as relevant here, a
situation almost identical to the dispute between Three Rivers and the Johnson
County Fiscal Court. In that case, Louisville /Jefferson County Metro
Government ("Metro Government"), along with the Commonwealth, entered into
a contract with University of Louisville Hospital ("University Hospital") under
which indigent persons, including inmates of Metro Corrections, would receive
medical care at University Hospital. Jewish Hospital was not a party to this
contract . In the meantime, an unrelated plan was placed into operation by
area hospitals allowing any hospital to deem itself to have insufficient facilities,
and subsequently to divert incoming patients to other hospitals in the area.
From time to time, when Metro Government sent inmates to University
Hospital, that facility would invoke the diversion plan and divert them to
Jewish Hospital . Metro Government had no involvement with these diversions,
and the diversions were not directly related to University Hospital's contract
with Metro Government . Over time, Jewish Hospital accrued unpaid billings
relating to indigent inmates of approximately $300,000 .00. Metro Government
refused to pay Jewish Hospital for services rendered, arguing that to do so
would be the equivalent to paying double since it already paid for medical
services via its contract with University Hospital. Jewish Hospital filed suit
against Metro Government seeking to recover on the unpaid bills.' The circuit
court dismissed Jewish Hospital's complaint on the grounds that Metro
Government was protected from the claims by sovereign immunity .
Jewish Hospital challenged the circuit court's ruling, arguing that Metro
Government was not entitled to sovereign immunity because the General
Assembly had waived immunity by requiring county jails to pay for necessary
medical care of indigent prisoners under KRS 441 .045(3) . The Court of
Appeals addressed Metro Government's entitlement to sovereign immunity as
`Immunity from suit is a sovereign right of the state.'
Construction Company v. Ward, 375 S .W.2d 392, 393 (Ky. 1963) .
The General Assembly may, by law, direct in what manner and in
what courts suits may be brought against the Commonwealth .'
Kentucky Constitution, Section 231 . A county `is a political
subdivision of the Commonwealth. as well, and as such is an arm
of the state government. It, too, is clothed with the same sovereign
immunity.' Cullinan v. Jefferson County, 418 S.W .2d 407, 408 (Ky.
1967), overruled on other grounds by Yanero v. Davis, 65 S .W.3d
510, 527 (Ky. 2001) .
Therefore, absent an explicit statutory
waiver, Metro Government is entitled to sovereign immunity . The
only question remaining is whether there was an explicit waiver of
its sovereign immunity by the General Assembly's enactment of
KRS 441 .045(3) .
The decision does not state whether Jewish Hospital sought reimbursement from
University Hospital .
In Withers v. University of Kentucky, 939 S.W .2d 340 (Ky. 1997), a
patient argued that legislative authority to purchase medical
insurance constituted a waiver of a state hospital's sovereign
immunity . The Kentucky Supreme Court, .however, held that the
General Assembly made clear its intention to only narrowly and
explicitly waive governmental sovereign immunity . We must agree
with the logic in Withers and now reiterate its holding that `[w]e will
find waiver only where stated "by the most express language or by
such overwhelming implications from the text as [will] leave no
room for any other reasonable construction ."' See id., quoting
Murray v. Wilson Distilling Co ., 213 U .S. 151, 171, 29 S .Ct. 458,
464-65, 53 L.Ed. 742 (1909) (emphasis added) . The only condition
expressly created by KRS 441 .045 is Metro Government's
responsibility to pay for necessary medical care of indigent
inmates, which it has provided for by its in-house care facilities
and the [contract with University Hospital . 2] As there is no such
express language in KRS 441 .045 creating a waiver of immunity on
all financial claims against the Metro Government for medical care
of inmates, we do not find that sovereign immunity was waived in
this case, and thus the trial court did not err in its dismissal on
those grounds .
Id. at 907.
Jewish Hospital is not-distinguishable in any meaningful respect from
the present facts. Its reasoning is sound . As it correctly notes, waiver of
sovereign immunity must be by clear legislative expression or overwhelming
implication . An examination of KRS 441 .045 discloses no indication of
legislative intent to waive a county's cloak of sovereign immunity against claims
to recover the unpaid medical expenses of indigent prisoners .
2 The fact that Metro Government had complied with its statutory duty by providing
for care for indigent inmates through its in-house care facilities and the contract
with University Hospital is not, in my view, relevant to the issue of whether
sovereign immunity on the point has been waived by the legislature .
The significance of the decision is that where there is no contract3
between the plaintiff hospital and defendant county, a claim cannot be brought
by the hospital against the county to recover unpaid indigent prisoner medical
expenses because the county's preexisting sovereign immunity has not been
waived. Thus, Jewish Hospital and Three Rivers stand in identical positions in
their respective lawsuits . Metro Government's contract with University
Hospital is irrelevant to its assertion of sovereign immunity against Jewish
Hospital, as is the diversion plan utilized by the local hospitals and the
unilateral decision of University Hospital to divert indigent prisoners to Jewish
Hospital.4 None of this affects the essential fact that a hospital without a
contract for reimbursement was attempting to bring a lawsuit against a county
3 Other provisions of KRS 441 .045 address those situations where there is a contract
between the county and a hospital, such as between Metro Government and
University Hospital, for the provision of indigent medical care. Therefore, it is
unnecessary to decide in this case the implications in the event a county breaches a
contract relating to indigent medical care . See also the Kentucky Model
Procurement Code, KRS Chapter 45A; KRS 45A.245 (1) ("Any person, firm or
corporation, having a lawfully authorized written contract with the Commonwealth
. . . may bring an action against the Commonwealth on the contract, including but
not limited to actions either for breach of contracts or for enforcement of contracts
or for both. Any such action shall be brought in the Franklin Circuit Court and
shall be tried by the court sitting without a jury . All defenses in law or equity,
except the defense of governmental immunity, shall be preserved to the
Commonwealth .") ; and Fedorov v. Board of Regents for University of Georgia, 194
F.Supp .2d 1378, 1394 (S.D .Ga. 2002) ("The State is only subject to a lawsuit for
breach of contract if the contract is in writing . . . . An `implied' contract does not
satisfy this requirement.") .
4 In fact, the record discloses that Paul B . Hall Hospital in Johnson County, where
Napier originally went for care on his first need of medical assistance, did the same
thing that University Hospital did, that is, divert a patient (Napier) to another
hospital (Three Rivers) . In this vein, the Court of Appeals opinion is mistaken, in
the light most favorable to Three Rivers, that Napier, by his own initiative, chose
Three Rivers to treat his gangrenous gall bladder.
upon a claim for which sovereign immunity had not been waived. Those are
the identical facts in this case.
SOVEREIGN IMMUNITY IS NOT WAIVED BY FAILURE OF A
GOVERNMENTAL ENTITY TO ASSERT IT
The remaining question is whether the Fiscal Court waived its
entitlement to sovereign immunity in this appeal as a result of failing to raise
the issue either before the circuit court, the Court of Appeals, or this Court.
The weight of authority reflects that it did not. As explained below, sovereign
immunity is a variety of subject-matter jurisdiction, and thus Johnson Circuit
Court was without authority to entertain the lawsuit in the first instance .
While Kentucky has not directly addressed this point, it has been stated
in the federal context that sovereign immunity is a type of subject matter
[s]overeign immunity is jurisdictional in nature. Indeed, the `terms
of [the United States] consent to be sued in any court define that
United States v.
court's jurisdiction to entertain the suit.'
Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 770, 85 L. Ed. 1058
(1941) . See also United States v. .Mitchell, 463 U .S . 206, 212, 103
S . Ct . 2961, 2965, 77 L. Ed. 2d 580 (1983) ("It is axiomatic that
the United States may not be sued without its consent and that
the existence of consent is a prerequisite for jurisdiction") .
F.D.LC. v. Meyer, 510 U.S. 471, 476 (1994)..
Additional authority provides that the same rule applies in the state
context. See, e.g., 81A CJS States § 534 (2010) ("Sovereign immunity is
jurisdictional immunity from suit. The constitutionally guaranteed principle of
state immunity acts as a jurisdictional bar to an action against the state by
precluding a court from exercising subject-matter jurisdiction .") ; 72 Am . Jur.
2d States, Territories, and Dependencies § 120 (2010) (Sovereign immunity has
been said to be a jurisdictional question, which cannot be waived by conduct or
undermined by estoppel) ; Ex parte Alabama Dept. ofMental Health and Mental
Retardation, 937 So-2d 1018, 1022 (Ala. 2006) (Sovereign immunity is a
jurisdictional bar that deprives a court of subject-matter jurisdiction .) ; Latham
v. Department of Corrections, 927 So.2d 815, 820 (Ala. 2005) (Even where the
State has not properly argued sovereign immunity as a defense to an action, a
trial or an appellate court should, at any stage of the proceedings, dismiss a
suit when it becomes convinced that it is a suit against the State .); Leonhard v.
U.S., 633 F.2d 599, 618 fn 27 (C.A.N.Y . 1980) (Noting that a sovereign
immunity defense is jurisdictional and cannot be waived) ; 'LaRoche v. Doe, 594
A.2d 1297, 1300 (N .H . 1991) ("Sovereign immunity is a jurisdictional question
`not to be waived by conduct or undermined by estoppel."') (citing W .P. Keeton,
D. Dobbs, R. Keeton, G. Owen, Prosser and Keeton on the Law of Torts § 131,
at 147 (5th ed. Supp . 1988)) .
Thus I would hold that sovereign immunity is a type of subject matter
jurisdiction and thereby subject to the same rules we apply to the latter type of
cases. "It is well-established that the issue of subject matter jurisdiction can
be raised at any time, even sua sponte, as it cannot be acquired by waiver,
consent, or estoppel." Doe v. Golden 8a Walters, PLLC, 173 S .W.3d 260, 269
(Ky. App. 2005) . Upon application of this principle, I believe this Court should
sua sponte recognize that Johnson County Fiscal Court is protected by
sovereign immunity from this lawsuit, that the suit was invalid from its
inception, vacate the decision of the Court of Appeals, and remand the cause to
Johnson Circuit Court for dismissal of Three Rivers' complaint with prejudice.5
For the foregoing reason I respectfully dissent .
Minton, C.J. and Abramson, J ., join .
5 That is not to say, however, that hospitals . burdened by violations of KRS 441 .045
may not seek vindication of their positions on this point, prospectively, by means of
a declaratory judgment action pursuant to KRS 418.040 . See Jewish Hospital, 270
S .W.3d at 910 . However, because this case is not properly brought, the issues
presented in this appeal may not be decided on the merits . Philpot v. Patton, 837
S .W.2d 491 (Ky . 1992) . ("Our courts do not function to give advisory opinions, even
on important public issues, unless there is an actual case in controversy .")
COUNSEL FOR APPELLANT:
Eldred E . Adams, Jr.
Adams 8, Adams
110 East Main Street
P. O. Box 606
Louisa, KY 41230
COUNSEL FOR APPELLEE :
Michael S . Endicott
225 Court Street
P. O. Box 181
Paintsville, KY 41240
COUNSEL FOR AMICUS CURIAE,
KENTUCKY HOSPITAL ASSOCIATION :
Wesley Reed Butler
Barnett, Benvenuti 8s Butler, PLLC
489 E. Main St., Ste . 300
Lexington, KY 40507-1541
COUNSEL FOR AMICUS CURIAE:
KENTUCKY ASSOCIATION OF COUNTIES, INC . ;
KENTUCKY COUNTY JUDGE-EXECUTIVE ASSOCIATION, INC . ;
THE KENTUCKY MAGISTRATES AND COMMISSIONERS ASSOCIATION;
THE KENTUCKY JAILERS ASSOCIATION
Brent L. Caldwell
Caldwell, Caldwell & Caldwell, PLLC
156 Market Street
Lexington, KY 40507
Timothy A. Sturgill
Kentucky Association of Counties
380 Kings Daughters Dr .
Frankfort, KY 40601