Mitchell v. University of Kentucky

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 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KRS 237.110, KRS 237.115, and KRS 527.020 — are circular or involve conflicts in any way suggesting that KRS 237.115 is superseded or invalid.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 “[pjersons ... 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 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 *904right to control deadly weapons on its property remains intact even with respect to deadly weapons in a licensed carrier’s vehicle.7

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 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 them deputies; jailers and them 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 *905the statute, first enacted in 1978, would not affect its authority.

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.”10 With the amendment, is this subsection now meant to be among the KRS 527.020 exceptions to KRS 287.115? 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 (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 287.115. 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.

. 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 — ^post-secondary 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 contraiy holding disregards this standard rule of statutory construction.

. KRS 237.115 provides that "[ejxcept 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.1969)). The majority instead has created a conflict so as to limit the effect of KRS 237.115.

.This language was revised in 2011 to include any factory-installed enclosed container, compartment or storage space including a center console or seat pocket.

. The University maintains that since KRS 527.020 is a penal statute this provision should be understood as forbidding only the criminalization or quasi-criminalization 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.