FILED | COMMONWEALTH OF KENTUCKY "gor 26 206 | SUPREME COURT CASE NO. 2015-SC-680-DG eupaeie Count UTILITY MANAGEMENT GROUP, LLC APPELLANT Appeal from vs Court of Appeals No. 2013-CA-929-MR Pike Circuit Court No.11-C1-1286 PIKE COUNTY FISCAL COURT APPELLEE REPLY BRIEF ON BEHALF OF APPELLANT. UTILITY MANAGEMENT GROUP, LLC Submitted by: Kevin C. Burke Jamie K. Neal BURKE NEAL PLLC 2200 Dundee Road, Suite C Louisville, Kentucky 40205 Telephone: (502) 709-9975 Facsimile: (502) 709-9985 kevin@burkeneal.com jamie@burkeneal.com Counsel for Appellant Utility Management Group, LLC CERTIFICATE OF SERVICE, On the2§~ day of October 2016 a true copy of this brief was sent to: Hon. Samuel P. Givens, Jr., 360 Democrat Dr., Frankfort, KY 40601; Hon. Andrew Beshear, Attomey General of Kentucky, 700 Capitol Avenue, Suite 118, Frankfort, KY 40601; Hon, John David Caudill, Special Judge, Justice Center, 127 South Lake Drive, Prestonsburg, KY 41653-1981; Casey Hinkle, David Kaplan, Kaplan & Partners, LLP, 710 West Main Street, 4th Floor, Louisville, KY 40202; John Doug Hays, Pike County Courthouse, 146 Main Street, P.O. Box 1470, Pikeville, KY 41501. Appellant coftifies that it did not withdraw the record on appeal. ‘Counsel for AppellantSTATEMENT OF POINTS AND AUTHORITIES I. The 2012 version of KRS 61.870(1)(h) applies to Pike County Fiscal Court’s open records request... A. The full legislative history shows that the 2012 revisions to KRS 61.870(1)(h) ‘were clarifications. House Bill 496 (2012). Jefferson County Bd. of Educ. v. Fell, 391 8.W.3d 713 (Ky. 2012) KRS 61.870(1}(6 Univ. Health Care, Ine. v. The Courier-Journal, Inc., Case No. 10-CI-04753 (lefferson Cir. Ct, Div. 12, Mar. 11, 2011). Moore v. Stills, 307 8.W.34 71 (Ky. 2010).. Thornsbury v. AERO Energy, 908 8.W.2d 109 (Ky. 1995 Schmidt v. S, Cent, Bell, 340 8.W.3d 591 (Ky. 2011) foes bib bin B, The 2012 revisions did not affect any vested rights. Landgraf v. Usi Film Prods., 511 U.S. 244 (U.S. 1994) Fernandez-Vargas v. Gonzales, 548 U.S, 30 (U.S. 2006) Peabody Coal Co. v. Gossett, 819 S,W.2d 33 (Ky. 1991) Curtis Green & Clay Green, Inc. v. Clark, 318 S.W.34 98 (Ky. App. 2010) Louisville Shopping Center, Inc. v. City of St. Matthews, 635 8.W.2d 307 (Ky. 1982) Southwest Ctr. for Biological Diversity v. United States Dep't of Agric., 314 F.3d 1060 (9th Cir, 2002) City of Chicago v. United States Dep't of the Treasury, 423 F.34 777 (7th C 2005) 5,6 Houston Independent School Dist. v. Houston Chronicle Pub, Co., 798 S.W.24 580 (Tex. App. 1990). Deal v: Coleman, 751 §.E.24 337 (Ga. 2013). Il. UMG is not a “public agency” within the meaning of the 1994 version of KRS 61.870(1)(h).. MPM Financial Group, Inc, v. Morton, 289 S.W.3d 193, 197 (Ky. 2009). KRS 61.870(1).. : 200 KAR 5:314. KRS 454.030. KRS 45A.410. KRS 454.365.IILKRS 61.870(1)(h) is unconstitutional. A. KRS 61,870(1)(h) is void for vagueness... Martin v, Commonwealth, 96 8.W.3d 38 (Ky. 2003)... KRS 61.870(1)(h) Hilly, Colo., 530 U.S. 703 (U.S. 2000} B. KRS 61.870(1)(b) is arbitrary and violates UMG’s right to equal protection. Fischer v, Fischer, 197 8.W.3d 98 (Ky. 2006 KRS 61.870(1)(h) KRS 61.871 iithe open records laws, dating back to their original enactment in 1976: I’m speaking also for Jon Fleischaker, general counsel of the Kentucky Press Association who could not be here, Jon authored the first generation of Open Records in *76 and the second generation in 1992. This was his intent, it’s better language than what has been in the law. This was his intent all along. So it does clarify that. The Press Association supports 496. But, what Representative Bell said was accurate. It was never intended to go after any part of a private company, that might at some point be doing business with a government agency.> Mr. Thompson also noted that it was never the intent for “the Open Records to be translated as broad as it has been.”* (Under Kentucky law, “statutory amendments that seek only to clarify, not substantively change, existing law are remedial in nature” and therefore retroactive, Moore v. Stills, 307 S.W.3d 71, 81 (Ky. 2010). This Court has specifically held that a statutory revision made “to remedy the abuse of the statute as it had been written,” is retroactive. Thornsbury v. AERO Energy, 908 S.W.2d 109, 111-112 (Ky. 1995) (noting that there is no support for the contention that a remedial statute can only be applied retroactively if it remedies a claimant, as opposed to an employer”); see also Schmidt v 'S. Cent. Bell, 340 S.W.3d 591, 595 (Ky. 2011) (“Amendments have also been found to be remedial where they corrected apparent oversights in the prior law(.J"). The full legislative history shows that the 2012 revisions are clarifications of the original intent of the Open Records laws.” Therefore, those revisions are retroactive} B. The 2012 revisions did not affect any vested rights. Fiscal Court argues that the 2012 revisions are substantive, not remedial, and therefore that they cannot be applied retroactively. But looking to the purpose of the $ Bx. 1, Senate Comm. at 02:20-03:10. $ Ex. 1, House Comm, at 25:45-26:36. 7 The 2012 revisions were enacted with strong, bipartisan support, pessing the House 93-0-1 and the Senate 32-31, (Soe Bx. 1 to Appellee’s BE, summary of 2012 H.B. 496.) 3