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APRIL 26, 2012
TO
BE PUBLISHED
Supreme Court of Kentucky
2010-SC-000762-TG
(2010-CA-002119-MR)
MICHAEL
MITCHELL APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE
PAMELA GOODWINE, JUDGE
1O.
10-CI-00489
UNIVERSITY OF KENTUCKY, ET AL. APPELLEES
OPINION OF THE COURT BY JUSTICE SCHRODER
REVERSING AND REMANDING
Appellant Michael
Mitchell appeals from an order of the Fayette Circuit
Court granting summary judgment in favor of
Appellees, the University of
Kentucky and several of its employees and
entities (collectively "UK"), in a suit
where Mitchell claimed UK terminated his
employment in violation of public
policy. We conclude that Mitchell's discharge was
contrary to a fundamental
and well-defined public policy, i.e., the right
to bear arms as evidenced by the
Kentucky Revised Statutes. We further conclude
that an explicit legislative
statement prohibited Mitchell's discharge, and
that the reason for his discharge
was his exercise of a right conferred by
well-established legislative enactments
Therefore, UK was not entitled to summary
judgment, and we remand for
further proceedings.
I. BACKGROUND
The
facts in this case are almost entirely undisputed. In 2009, Mitchell
was employed at-will as an anesthesia technician
at the University of Kentucky
Chandler Medical Center, while also attending the
University as a graduate
student.
He had a valid license to carry a concealed deadly weapon pursuant
to
KRS 237.110 ("concealed carry license"). On April 22, 2009, several
of
Mitchell's
coworkers were under the impression that he had a firearm in his
employee
locker. The employees reported this to hospital administration.
Hospital
administrators contacted the University of Kentucky Police
Department.
When questioned, Mitchell denied having a firearm in his locker.
Police
and hospital administrators searched Mitchell's locker with his
permission,
but found no weapons. Mitchell informed officers that he had a
concealed
carry license and admitted that he kept a firearm in his vehicle,
which
was parked on University property at Commonwealth Stadium. UK
suspended
Mitchell's employment pending an investigation.
Campus
police escorted Mitchell to his car, where he showed them the
semiautomatic
pistol he had stored in his vehicle. In their respective briefs, the
parties
agree that Mitchell's weapon was stored in the vehicle's glove
compartment.
However, at an unemployment benefits hearing, Mitchell
testified
that the weapon was stored in his vehicle's armrest. Police confiscated
the
weapon pending an investigation. On April 29, 2009, the University
terminated
Mitchell's employment for violation of its policy prohibiting
2
possession
of a deadly weapon on University property or while conducting
University
business.
Mitchell
filed suit, alleging termination in violation of public policy,
specifically,
his right to bear arms as set forth in the United States
Constitution,
the Kentucky Constitution, and the Kentucky Revised Statutes.
After
interpreting the relevant statutory provisions, the circuit court concluded
that
UK terminated Mitchell pursuant to a policy authorized by law. The
circuit
court granted summary judgment in favor of UK, finding that there was
no
genuine issue of material fact, and that UK was entitled to judgment as a
matter
of law. After filing a notice of appeal, Mitchell filed a motion to transfer
the
appeal from the Court of Appeals to this Court. This Court then granted
Mitchell's
motion. CR 74.02.
II. ANALYSIS
"The
standard of review on appeal of a summary judgment is whether the
trial
court correctly found that there were no genuine issues as to any material
fact
and that the moving p‘arty was entitled to judgment as a matter of law."
Coomer v. CSX Transp., Inc., 319
S.W.3d 366, 370 (Ky. 2010) (quoting Scifres v.
Kraft,916 S.W.2d 779, 781
(Ky. App. 1996)). "Because summary judgment
involves
only legal questions and the existence of any disputed material issues
of
fact, an appellate court need not defer to the trial court's decision and will
review
the issue de novo." Lewis v. B & R Corp., 56
S.W.3d 432, 436 (Ky. App.
2001)
(footnote omitted).
3
Mitchell
contends he was wrongfully terminated in violation of public
policy.
Ordinarily, an at-will employee may be discharged "for good cause, for
no
cause, or for a cause that some might view as morally indefensible.".
Firestone Textile Co. Div. v. Meadows, 666
S.W.2d 730, 731 (Ky. 1983) (citing
Production Oil Co. v. Johnson, 313
S.W.2d 411 (Ky. 1958); Scroghan v. Kraftco
Corp.,551 S.W.2d 811 (Ky.
App. 1977)). However, there is "a narrow public
policy
exception" to the terminable-at-will doctrine, which is subject to the
following
limitations:
1)
The discharge must be contrary to a fundamental
and
well-defined public policy as evidenced by existing
law.
2)
That policy must be evidenced by a constitutional or
statutory
provision.
3)
The decision of whether the public policy asserted
meets
these criteria is a question of law for the court
to
decide, not a question of fact.
Grzyb v. Evans, 700
S.W.2d 399, 401 (Ky. 1985). See also Firestone, 666
S.W.2d
at 731 (quoting Brockmeyer v. Dun & Bradstreet, 335
N.W.2d 834, 835
(Wis.
1983)). In addition, a discharge is actionable as being contrary to public
policy
only (1) where there are "explicit legislative statements prohibiting the
discharge,"
(2) where "the alleged reason for the discharge . . . was the
employee's
failure or refusal to violate a law in the course of employment," or
(3)
when "the reason for the discharge was the employee's exercise of aright
conferred
by well-established legislative enactment." Hill
v. Kentucky Lottery
Corp.,327 S.W.3d 412, 422
(Ky. 2010) (quoting Grzyb,700 S.W.2d at 402).
4
It
is beyond question that public institutions of higher education have
"the
power and authority to govern and control the method and purpose of use
of
property owned or occupied by their respective institution[s] . . . ."
KRS
164.975(1). In O'Leary v. Commonwealth, our predecessor Court
recognized
the authority of a public university to control the use of its property.
441
S.W.2d 150, 156-57 (Ky. 1969). The narrow question presented in this
case
is whether any fundamental and well-defined public policy limits the
authority
of a university to control the possession of deadly weapons on its
campus,
and therefore renders Mitchell's termination unlawful as a violation of
public
policy.
"[T]he
long-standing practice of this Court is to refrain from reaching
constitutional
issues when other, non-constitutional grounds can be relied
upon."Baker
v. Fletcher, 204 S.W.3d 589, 597-98 (Ky. 2006) (citing Dawson v.
Birenbaum,968 S.W.2d 663 (Ky.
1998)). Therefore, to determine whether UK's
termination
of Mitchell violated public policy, i.e., the right to bear arms, we
begin
by examining the relevant sections of the Kentucky Revised Statues.
A. Provided Mitchell Stored His Weapon in His
Vehicle's Glove
Compartment, His Discharge Was Contrary to KRS
527.020(8)
Mitchell
asserts a cause of action for termination in violation of public
policy
under KRS 527.020(8). 1 KRS 527.020 is a criminal statute, which
prohibits
the carrying of a concealed weapon. KRS 527.020(1). The statute
I
Subsequent to the events at issue in this case, the General Assembly amended
KRS
527.020(8). See2011 Ky. Acts ch.
64, § 1. Because these revisions are not
retroactive,
we address the statute as it was written at the time of Mitchell's
termination.
then
proceeds to describe exceptions. KRS 527.020(8) applies generally to all
persons:
2
A
firearm or other deadly weapon shall not be deemed
concealed
on or about the person if it is located in a
glove
compartment, regularly installed in a motor
vehicle
by its manufacturer, regardless of whether said
compartment
is locked, unlocked, or does \ not have a
locking
mechanism. No person or organization,
public or private, shall prohibit a person from
keeping a firearm or ammunition, or both, or
other
deadly weapon in a glove compartment of a vehicle
in accordance with the provisions of this
subsection.Any attempt by a
person or organization,
public
or private, to violate the provisions of this
subsection
may be the subject of an action for
appropriate
relief or for damages in a Circuit Court or
District
Court of competent jurisdiction.
(Emphasis
added.)
"When
the words of the statute are clear and unambiguous and express
the
legislative intent, there is no room for construction or interpretation and
the
statute must be given its effect as written." McCracken
County Fiscal Court
v. Graves, 885 S.W.2d 307, 309
(Ky. 1994) (quoting Lincoln County Fiscal Court
v. Dep't of Public Advocacy, 794
S.W.2d 162, 163 (Ky. 1990)); see also Griffin v.
City of Bowling Green, 458
S.W.2d 456, 457 (Ky. 1970). The words of
KRS
527.020(8) are clear and unambiguous. It forbids a public organization,
such
as a university, from prohibiting the possession of a firearm in the glove
2
The
current version of the statute specifies that it does not apply "to any
person
prohibited
from possessing a firearm pursuant to KRS 527.040" (i.e., persons
convicted
of a felony).
6
compartment
of a vehicle. There can be no other reasonable interpretation of
the
statutory language.
Provided
Mitchell stored his weapon in his vehicle's glove compartment,
UK
violated KRS 527.020(8). The statute also provides Mitchell with a cause of
action
"for appropriate relief or for damages in a Circuit Court or District
Court
of
competent jurisdiction." Mitchell's discharge was therefore contrary to
KRS
527.020(8), provided his weapon was in fact stored in the glove
compartment
of his vehicle. Because there is also evidence in the record that
Mitchell
stored his weapon in his vehicle's armrest, 3 we now consider the
applicability
of KRS 527.020(4).
B. Because Mitchell Had a Valid Concealed Carry
License, His
Discharge Was Contrary to KRS 527.020(4)
KRS
237.110 authorizes the issuance of, and establishes standards for,
concealed
carry licenses. KRS 237.115 concerns the construction of
KRS
237.110. It states, in relevant part,
Except as provided in KRS 527.020, nothing
contained
in KRS 237.110 shall be construed to limit,
restrict,
or prohibit in any manner the right of a
college,
university, or any postsecondary education
facility,
including technical schools and community
colleges,
to control the possession of deadly weapons
on
any property owned or controlled by them . . . .
3
Under
the current version of KRS 527.020(8),
a weapon is deemed to not be
concealed
if it is stored in "any enclosed container, compartment, or storage space
installed
as original equipment in a motor vehicle by its manufacturer, including but
not
limited to a glove compartment, center console, or seat pocket . . . ."
7
KRS
237.115(1) (emphasis added). Thus, universities, including UK, have an
implicit
right to control the possession of deadly weapons on property under
their
control. But this right is qualified by KRS 527.020.
KRS
527.020(8), discussed above, applies to persons regardless of
whether
they hold concealed carry licenses. KRS 527.020(4), by contrast,
applies
only to persons, like Mitchell, licensed to carry a concealed deadly
weapon:
Persons,
except those specified in subsection (5) of this
section,
licensed to carry a concealed deadly weapon
pursuant
to KRS 237.110 may carry a firearm or other
concealed
deadly weapon on or about their persons at
all
times within the Commonwealth of Kentucky, if the
firearm
or concealed deadly weapon is carried in
conformity
with the requirements of that section.
Unless
otherwise specifically provided by the Kentucky
Revised
Statutes or applicable federal law, no criminal
penalty
shall attach to carrying a concealed firearm or
other
deadly weapon with a permit at any location at
which
an unconcealed firearm or other deadly weapon
may
be constitutionally carried. No person or
organization, public or private, shall prohibit a
person licensed to carry a concealed deadly
weapon from possessing a firearm, ammunition, or
both, or other deadly weapon in his or her
vehicle
in compliance with the provisions of KRS 237.110
and 237.115. Any attempt by a
person or
organization,
public or private, to violate the provisions
of
this subsection may be the subject of an action for
appropriate
relief or for damages in a Circuit Court or
District
Court of competent jurisdiction.
(Emphasis
added.)
"Only
if the statute is ambiguous . . . or otherwise frustrates a plain
reading,
do we resort to the canons or rules of construction . . . ." King
Drugs,
Inc. v. Commonwealth, 250
S.W.3d 643, 645 (Ky. 2008) (citingStephenson v.
8
Woodward,182 S.W.3d 162 (Ky.
2005)). When the application of two statutes
leads
to an apparent conflict, this Court has a duty, to the extent possible, to
harmonize
the statutes and give force and effect to each. Spees
v. Kentucky
Legal Aid, 274 S.W.3d 447, 450
(Ky. 2009); see also MPM Finaiicial Group, Inc.
v. Morton, 289 S.W.3d 193, 198
(Ky. 2009). However, when statutory
provisions
are in conflict and cannot be harmonized, "our duty is to construe
the
statutes so as to ascertain and give effect to the intent of the General
Assembly."Johnson
v. Branch Banking & Trust Co., 313 S.W.3d 557, 559
(Ky.
2010).
On
its face, the emphasized portion of KRS 527.020(4) is not ambiguous.
It
forbids public and private organizations from imposing any prohibition on
possession
of a deadly weapon in a vehicle, provided that (1) the person so
possessing
is properly licensed to carry a concealed deadly weapon, and (2) the
person
is in compliance with KRS 237.110 (which authorizes and regulates
concealed
carry licenses) and KRS 237.115 (which provides rules of
construction
for KRS 237.110).
However,
when KRS 527.020(4) is read in conjunction with
KRS
237.115(1) and applied to this case, a clear conflict arises.
KRS
237.115(1) allows institutions of postsecondary education to control
weapons
on their property, "[e]xcept as provided in KRS 527.020 . . . ."
However,
KRS 527.020(4) refers to a person possessing a deadly weapon "in his
or
her vehicle in compliance with the provisions of KRS 237.110 and
237.115."
9
(emphasis
added). This creates circularity in the two statutes, with each
referring
back to the other as controlling.
To
resolve this conflict, we look to the intent of the General Assembly.
First,
KRS 527.020(4), the provision relied upon by Mitchell, applies only to
those
licensed to carry concealed deadly weapons pursuant to KRS 237.110.
KRS
237.115, the conflicting statute, provides guidance in the construction of
KRS
237.110. However, KRS 237.110 itself provides a clear rule of
construction,
stating that "[t]his section shall be liberally construed to carry
out
the constitutional right to bear arms for self-defense." KRS 237.110(19).
This
clearly expresses the legislature's intent and favors the right to bear arms
of
a concealed carry licensee.
In
addition, the General Assembly has expressed a strong public policy in
favor
of exempting a person's vehicle from restrictions on the possession of
deadly
weapons. For example, KRS 527.070, the statute that criminalizes
possession
of a weapon on primary and secondary school property, 4 specifically
exempts
an adult who possesses a firearm contained in his or her vehicle,
provided
the firearm is not removed. KRS 527.070(3)(a). KRS 237.106(1)
specifically
forbids any person (including an employer) from prohibiting a
person
from possessing a firearm in his or her vehicle, provided the person is
legally
entitled to possess the firearm. See also KRS
237.110(17) (forbidding
4
This
statute does not apply to "institutions of postsecondary or higher
education."
KRS
527.070(1).
10
private
employers from prohibiting an employee from keeping a weapon is his
or
her vehicle, provided the employee has a concealed carry license).
To
the extent that KRS 527.020(4) and KRS 237.115(1) are in direct
conflict,
we hold that the conflict must be resolved in favor of KRS 527.020(4).
We
base this on. the General Assembly's explicit statement that the concealed
carry
licensing statute is to be liberally construed in favor of the right to bear
arms,
as well as the legislature's clearly expressed policy of exempting a
person's
vehicle from firearms regulation.
This
interpretation best accomplishes the goal of giving effect to the
words
of both statutes. It also best harmonizes the two statutes by protecting
the
right of concealed carry licensees to store weapons anywhere in their
vehicle,
pursuant to KRS 527.020(4), while permitting universities to controls
the
possession of deadly weapons on all other property,
pursuant to
KRS
237.115(1), subject only to the general limitations of KRS 527.020. 6
5
The
parties have argued at length over what is meant by the use of the term "control
the
possession of deadly weapons" with respect to universities in KRS
237.115(1),
while
the same statute recognizes the right of local governments "to prohibit
the
carrying
of concealed deadly weapons by licensees in that portion of a building
actually
owned, leased, or occupied by that unit of government." (emphasis added).
We
need not exhaustively consider this issue to resolve this case. We note,
however,
that
a university has a right to "control" all deadly weapons on all
property it owns or
controls.
KRS 237.115(1). By contrast, a local government's right to "prohibit"
applies
only
to concealed deadly weapons, and only in a building. Id. Nothing
in this opinion
should
be construed to limit a postsecondary educational institution's generally
recognized
right to control the possession of deadly weapons outside of the limited
circumstances
exempted from control by KRS 527.020.
6
In
addition to the exceptions in KRS 527.020(4) and (8), KRS 527.020 authorizes a
number
of other persons to carry concealed deadly weapons under various
circumstances.
See KRS 527.020(2) (peace officers and certified court security
officers,
United States mail carriers, and agents and messengers of express companies
when
necessary for their protection in the discharge of their official duties);
11
C. Despite Being Part of the Penal Code, KRS
527.020 Authorizes a
Civil Cause of Action
As
explained above, pursuant to KRS 527.020(4) and (8), UK improperly
prohibited
Mitchell from keeping a firearm in his glove compartment (pursuant
to
KRS 527.020(8)) or anywhere else in his vehicle (pursuant to
KRS
527.020(4), because Mitchell had a concealed carry license). We are not
persuaded
by UK's argument that, because KRS 527.020 is a criminal statute,
it
has no applicability to a civil suit for wrongful termination. While
KRS
527.020 is primarily a criminal statute, which is codified in the penal
code,
KRS 527.020(4) and (8) also specifically contemplate and authorize a civil
cause of action. "Any
attempt by a person or organization, public or private, to
violate
the provisions of this subsection may be the subject of an
action for
appropriate relief or for damages in
a Circuit Court or District Court of
competent
jurisdiction." KRS 527.020(4) & (8) (emphasis added).
D. Because Mitchell Was Legally Entitled to
Possess a Firearm in His
Vehicle, His Discharge Was Contrary to KRS
237.106
Mitchell
also asserts that his discharge was contrary to KRS 237.106. It
provides,
in relevant part:
KRS
527.020(3) (conservation officers of the Department of Fish
and Wildlife
Resources
and police officers directly employed by state, county, city, or urban-county
governments
at all times if authorized by their respective departments);
KRS
527.020(5) (prosecutor's and active and retired justices and judges in all
places
except
detention facilities, provided they hold a valid concealed carry license);
KRS
527.020(6) (sheriffs, jailers, deputies, and other corrections employees at all
times
in
all places if expressly authorized and in compliance with training
requirements);
KRS
527.020(7) (a full-time paid peace officer or elected sheriff from another
jurisdiction
at all times in Kentucky provided the other jurisdiction accords Kentucky
peace
officers the same rights by law).
12
(1)
No person, including but not limited to an
employer,
who is the owner, lessee, or occupant of real
property
shall prohibit any person who is legally
entitled
to possess a firearm from possessing a
firearm,
part of a firearm, ammunition, or ammunition
component
in a vehicle on the property.
(4)
An employer that fires, disciplines, demotes, or
otherwise
punishes an employee who is lawfully
exercising
a right guaranteed by this section and who
is
engaging in conduct in compliance with this statute
shall
be liable in civil damages. An employee may seek
and
the court shall grant an injunction against an
employer
who is violating the provisions of this section
when
it is found that the employee is in compliance
with
the provisions of this section.
(5)
The provisions of this section shall not apply to any real property:
(c)
Where a section of the Kentucky Revised Statutes specifically prohibits
possession or carrying of firearms on the property.
UK
argues that subsection (5)(c) relieves it of liability for terminating
Mitchell,
because
KRS 237.115 is "a section of the Kentucky Revised Statutes" that
"specifically
prohibits possession or carrying of firearms on the property."
As
explained above, KRS 237.115, while recognizing the implicit right of
a
university to control weapons on its campus, is limited by KRS 527.020.
Because
KRS 527.020(4) and (8) specifically permitted Mitchell to store a
firearm
in his vehicle, even while on University property, UK has failed to point
to
"a section of the Kentucky Revised Statutes [that] specifically prohibits
13
possession
or carrying of firearms on the property." KRS 237.106(5)(c).
Mitchell's
discharge was therefore contrary to KRS 237.106(4).
III. CONCLUSION
Mitchell
has established that his discharge was contrary to a
fundamental
and well-defined public policy, i.e., the right to bear arms, as
evidenced
by existing statutory provisions, namely, KRS 237.106,
KRS
237.110, and KRS 527.020. See Grzyb, 700 S.W.2d at 401.
Further,
Mitchell
has established that an explicit legislative statement, KRS 237.106(4),
prohibited
his discharge, and that the reason for his discharge was his exercise
of
a right conferred by well-established legislative enactments in
KRS
527.020(4) and (8). See Hill, 327 S.W.3d at 422.
UK was not entitled to
judgment
as a matter of law.
For
the foregoing reasons, the judgment of the Fayette Circuit Court is
reversed.
The case is hereby remanded to that court for proceedings consistent
with
this opinion.
Cunningham,
Noble, and Venters, JJ., concur. Scott, J., concurs in
result
only without separate opinion. Abramson, J., concurs in result only by
separate
opinion in which Minton, C.J., joins.
ABRAMSON,
J., CONCURRING IN RESULT ONLY: Although I am
obliged,
given the current statutes, to concur in the result the majority reaches
in
this case—that the University of Kentucky's termination of Mr. Mitchell's
employment
was wrongful if it is established that he kept his gun in his glove
compartment
and not in some other part of his vehicle—I write separately
14
because
there are significant aspects of the majority's analysis with which I
disagree.
I do not agree that the statutes involved--KRS 237.110, KRS
237.115,
and KRS 527.020--are circular or involve conflicts in any way
suggesting
that KRS 237:115 is superseded or invalid. Nor do I agree that
aside
from the express exception created by KRS 527.020(8) there is anything
in
the public policy of this Commonwealth that would preclude the University
from
sanctioning a student or an employee who violates its rules regarding
guns
on its property.
In
their particulars the statutes at issue are somewhat complex, but the
overall
statutory structure is clear enough. KRS 237.110 mandates the
issuance
to qualified applicants of a license to carry concealed a deadly weapon
and
defines who is a qualified applicant. KRS 527.020(4) then gives substance
to
the license by providing that Iplersons . . . licensed to carry a concealed
deadly
weapon pursuant to KRS 237.110 may carry a firearm or other
concealed
deadly weapon on or about their persons at all times within the
Commonwealth
of Kentucky, if the firearm or concealed deadly weapon is
carried
in conformity with the requirements of that section."
The
concealed carry privilege is not unlimited, however. KRS 527.020(4)
further
provides that "[n]o person or organization, public or private, shall
prohibit
a person licensed to carry a concealed deadly weapon from possessing
a
firearm, ammunition, or both, or other deadly weapon in his or her vehicle in
compliance
with the provisions of KRS 237.110 and KRS 237.115." KRS
237.115,
of course, is the statute providing that the concealed carry law is not
15
to
be construed "to limit, restrict, or prohibit in any manner the right of a
college,
university, or any postsecondary education facility, including technical
schools
and community colleges, to control the possession of deadly weapons
on
any property owned or controlled by them." Under KRS 527.020(4), then,
the
University's right to control deadly weapons on its property remains intact
even
with respect to deadly weapons in a licensed carrier's vehicle.?
However,
as the licensed carrier's rights are not absolute, neither are the
University's.
For exceptions to the University's right, KRS 237.115 refers back
to
KRS 527.020, a statute in which several of the sections identify persons or
officials
whose concealed carry rights enjoy heightened protection. 8 Among
7
Much
like KRS 527.020(4), KRS 237.106 provides that no owner, lessee, or
occupant
of real property, including an employer, "shall prohibit any person who is
legally
entitled to possess a firearm from possessing a firearm, part of a firearm,
ammunition,
or ammunition component in a vehicle on the property." This statute
obviously
conflicts with the University's express right under KRS 237.115 and KRS
527.020(4)
to control the presence of firearms in vehicles in its property, and since
these
latter statutes address the rights of one particular kind of property
owner—postsecondary
school
educational institutions—whereas KRS 237.106 addresses property
owners
in general, the more particular statutes should control, and the University's
right
should not be deemed affected by KRS 237.106. Light v. City of
Louisville, 248
S.W.3d
559 (Ky. 2008) (applying the rule that a more specific statute controls a more
general
one.). The majority's contrary holding disregards this standard rule of
statutory
construction.
8
KRS
237.115 provides that "[e]xcept as provided in KRS 527.020, nothing
contained
in KRS 237.110 shall be construed . . ." The majority understands the
reference
to KRS 527.020 to create a circle between the two statutes—KRS 527.020(4)
applying
except for KRS 237.115, and KRS 237.115 applying except for KRS
527.020(4)—and
then uses the purported circularity as the occasion for its claim that
KRS
237.115 has been superseded by KRS 527.020(4). The statutes, however, while
perhaps
not models of clarity, are not circular. KRS 237.115 does not refer
back to
KRS
527.020(4). It refers to KRS 527.020 in its entirety and makes perfect sense if
understood
as excepting from KRS 237.115 all those subsections of KRS 527.020
which
do not, as KRS 527.020(4) does, incorporate KRS 237.115. Our duty is to
construe
statutes so as to avoid conflicts, if possible, and to give effect to every
provision.
Light v. City of Louisville, 248
S.W.3d at 563 (citing City of Bowling Green v.
Board of Education of Bowling Green Independent
School District, 443 S.W.2d 243 (Ky.
16
such
persons are peace officers; certified court security officers; United States
mail
carriers, KRS 527.020(2); policemen, KRS 527.020(3); Commonwealth
attorneys;
county attorneys; judges, both active and retired, KRS 527.020(5);
sheriffs
and their deputies; jailers and their deputies; and certain corrections
department
officials and employees, KRS 527.020(6). All of these persons are
excepted
from the University's general right to control deadly weapons on its
property.
These exceptions are not surprising, and to this point the statutes
seem
to work together smoothly enough.
The
rub comes, of course, with KRS 527.020(8). Unlike the preceding
sections,
which identify particular persons and officials whose sensitive
positions
can be thought to justify concealed carry rights less restricted than
an
ordinary license holder's, KRS 527.020(8) applies to carriers more generally.
At
the time Mr. Mitchell was discharged, it provided that a deadly weapon,
including
a firearm, "shall not be deemed concealed on or about the person if it
is
located in a glove compartment, regularly installed in a motor vehicle by its
manufacturer,
regardless of whether said compartment is locked, unlocked, or
does
not have a locking mechanism." 9 Because under KRS 237.115, a
university
can control deadly weapons on its property whether concealed or
not,
this portion of the statute, first enacted in 1978, would not affect its
authority.
1969).
The majority instead has created a conflict so as to limit the effect of KRS
237.115.
9
This
language was revised in 2011 to include any factory-installed enclosed
container,
compartment or storage space including a center console or seat pocket.
17
However,
KRS 527.020(8) continues with the following language added in
2002:
"No person or organization, public or private, shall prohibit a person
from
keeping a firearm or ammunition, or both, or other deadly weapon in a
glove
compartment of a vehicle in accordance with the provisions of this
subsection.")
With the amendment, is this subsection now meant to be
among
the KRS 527.020 exceptions to KRS 237.115? That is, notwithstanding
its
general authority to control, deadly weapons on its property, and
notwithstanding
its express authority under KRS 527.020(4) to control deadly
weapons
in a licensed carrier's vehicle, are we to understand that the
University
is now powerless to keep its students and employees from stashing
loaded
guns in the unlocked glove compartments of their unlocked vehicles,
not
only powerless but actually subject to student lawsuits if it seeks to rid its
parking
lots of that hazard? That result strikes me, as I am sure it will strike
many
parents, as an affront to common sense. It is certainly a radical
departure
from the long practice in this Commonwealth of allowing universities
and
other institutions of post-secondary education to decide for themselves
how
best to safeguard their students. Centre College v.
Trzop, 127 S.W.3d 562
10
The
University maintains that since KRS 527.020 is a penal statute this
provision
should be understood as forbidding only the criminalization or
quasicriminalization
of
glove-compartment carrying, not the sort of workplace regulation at
issue.
It notes that it did not require Mr. Mitchell to park on University property
and
so
did not, in a strict sense of the term, "prohibit" him from carrying
his gun.
Although
I agree with the University that the Penal Code is an odd place to find
statutes
purporting to compel employers and property owners to tolerate unwanted
guns
in
their parking lots, that clearly is what KRS 527.020(4) and KRS 527.020(8)
purport
to do. The University has provided no authority for its suggestion that penal
statutes
cannot include such non-penal objects.
18
(Ky.
2004) (citing Kentucky Military Inst. v. Bramblet, 158 Ky. 205, 164 S.W.
808
(1914)).
I
am constrained, nevertheless, given this Court's duty to uphold the
plainly
expressed intent of the General Assembly, to agree with the majority
that
it is the result the statutory language requires. As the majority notes,
when
the General Assembly meant to exempt universities and colleges and
other
post-secondary schools from the similar vehicle provisions of KRS
527.020(4)
it did so expressly. The unavoidable implication is that had it
meant
to exempt the University from the glove compartment rule of KRS
527.020(8)
it would again have made the exemption express by referencing
KRS
237.115. Very reluctantly, therefore, I concur in the majority's result but
only
because a different statutory analysis compels that same result. If on
remand
it is determined that Mr. Mitchell's gun was stored in his vehicle's
glove
compartment, then his termination for having breached the University's
safety
code was wrongful under KRS 527.020(8).
Minton,
C.J., joins.
19
COUNSEL
FOR APPELLANT:
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Derek Hunt
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20
