Brooks v. Lexington-Fayette Urban County Housing Authority

COOPER, Justice,

dissenting.

Federal Rule of Evidence (FRE) 406 provides:

Evidence of the habit of a person or of the routine practice of an organization, Whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

(Emphasis added.)

For at least one hundred years, the common law rule in Kentucky has been that such evidence is inadmissible. Burchett v. Commonwealth, Ky., 98 S.W.3d 492, 494-95 (2003). The Committee that drafted the proposed Kentucky Rules of Evidence recommended departure from the common law rule and adoption of a proposed rule identical to FRE 406. Evidence Rules Study Committee, Final Draft, at 29-30 (1989). The rule was approved by the 1990 General Assembly subject to the approval of the Supreme Court of Kentucky. KRS 422A.0406 (1990 Ky. Acts, ch. 88, §§ 16, 93). Unfortunately, the 1991 Kentucky Supreme Court disapproved of proposed KRE 406, and the 1992 *815 General Assembly accordingly repealed KRS 422A.0406 (1992 Ky. Acts, ch. 324, § 30). Thus, evidence that is admissible in all federal courts under FRE 406 and admissible in all of the other forty-nine states by statute, rule, or common law, Burchett , at 506-08 (Cooper, J., dissenting), remains inadmissible in Kentucky. Id. at 496-98 (plurality opinion) (all evidence of habit or routine practice, while relevant under KRE 401 and otherwise admissible under KRE 402, is always excluded by KRE 403); id. at 499-502 (Keller, J., concurring) (Supreme Court’s rejection of proposed KRE 406 precludes admission under KRE 402).

Burchett is less than a year old. Yet, today’s lead opinion states:

To state the obvious, an employer necessarily must hire and sometimes fire employees. Employers being human, over time the individual and specific reasons for making these decisions fade from memory. Thus, to make failure to remember the reason for any particular employment decision fatal to a defense to a discrimination claim would place an intolerable burden on employers to document the reason for every employment decision as insurance against future lawsuits. Therefore, we hold that, where an employer claims that the actual reason cannot be recalled, the employer may rely on normal business practices and exemplary reasons consistent with those practices when called upon under the McDonnell Douglas framework [to produce] a non-discriminatory reason to rebut a plaintiffs prima facie case of discrimination.

Ante, at 799 (emphasis added).

Of course, the only reason for admitting evidence of “the habit of a person or the routine practice of an organization,” FRE 406, is that the witness, as here, cannot remember what action was actually taken or the reason therefor on the occasion in question (“the actual reason cannot be recalled,” ante, at 799) and is forced to rely on the witness’s own habits or the routine practice of the witness’s organization to fill that gap. Of course, I agree that this evidence is relevant and, thus, admissible under KRE 402 (“All relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States and the Commonwealth of Kentucky, by these rules, or by other rules adopted by the Supreme Court of Kentucky.”). See Burchett, supra, at 502-13 (Cooper, J., dissenting).

The lead opinion’s reliance on Major v. Bishop, 462 F.2d 1277 (10th Cir.1972), and Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.1975), is curious at best. Both cases were decided under common law principles that existed prior to the 1975 adoption of the Federal Rules of Evidence. And because they are both federal cases, they would be decided the same way today under FRE 406. The lead opinion’s citation to Martin v. Ben P. Eubank Lumber Co., Ky., 395 S.W.2d 385 (1965), is even more misplaced. That case was governed by the Uniform Commercial Code which specifically defines “course of dealing” and “usage of trade,” KRS 355.1-205, and permits evidence of such to prove the existence, and terms of, and modifications to contracts of sale or lease under certain specified circumstances. See KRS 355.2-202(a); KRS 355.2-208(1); KRS 355.2-314(3); KRS 355.2-504(b); KRS 355.2-723(2); KRS 355.2A-202(1); KRS 355.2A-207(1); KRS 355.2A-212(3); KRS 355.2A-214(3)(c); KRS 355.2A-507(2). Manifestly, the provisions of the Uniform Commercial Code have nothing to do with the case sub judice. Finally, the relevance of Bass v. Williams, Ky.App., 839 S.W.2d 559 (1992), escapes me. Bass specifically held that the proffered evidence of custom *816 and usage to prove standard of care was properly excluded, id. at 565 , and cited no case in which such evidence had ever been admitted to prove a standard of care (but only speculated that it might be admissible under some unspecified circumstances). Id. Of course, the evidence in question here is deemed admissible by the lead opinion not to prove a commercial contract or a standard of care but to prove conforming conduct on another occasion, i.e., habit evidence.

If Burchett is to be the law of this jurisdiction, it should be applied consistently and not on an ad hoc basis. (The habit evidence deemed inadmissible in Burchett was much more reliable than the habit evidence deemed admissible by the lead opinion in this case because the evidence in Burchett was self-inculpatory, and the habit evidence here was self-serving.) This Court should either adhere to Bur-chett or overrule it, or (at least) hold that the McDonnell Douglas framework was satisfied here solely because Appellant did not object to the introduction of otherwise inadmissible evidence of Appellee’s routine business practices. Instead, the lead opinion resorts to childish characterization (“chicken little”?) in defense of unsound legal analysis.

GRAVES, J., joins this dissenting opinion.