RENDERED: AUGUST 9, 2024; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NOS. 2023-CA-1103-MR & 2023-CA-1140-MR

COMMONWEALTH OF KENTUCKY, 

EX REL. ATTORNEY GENERAL 

RUSSELL COLEMAN APPELLANT

APPEAL FROM FRANKLIN CIRCUIT COURT

v. HONORABLE PHILLIP J. SHEPHERD, JUDGE

ACTION NO. 23-CI-00680

JANE DOE 1; JANE DOE 2;

AND JOHN ROE APPELLEES

OPINION AFFIRMING ON APPEAL 2023-CA-1103-MR

AND VACATING AND REMANDING ON APPEAL 2023-CA-1140-MR

**   **  **

BEFORE: ACREE, EASTON, AND GOODWINE, JUDGES.

EASTON, JUDGE: The Commonwealth filed two appeals regarding the Franklin 

Circuit Court’s Orders of September 18, 2023, and September 27, 2023. 

Recognizing that the impetus for this case was by the actions of a former attorney 
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general, rather than the current occupant of that office, we will refer to the 

Appellant as “OAG” for Office of the Attorney General.

 In the first appeal (No. 2023-CA-1103-MR), the OAG questions an 

order quashing a grand jury subpoena seeking employment records from Roe LLC 

of two of its employees (“Jane Doe 1” and “Jane Doe 2” who we will refer to 

collectively as the “Does”). The circuit court determined that the OAG lacked 

authority to conduct the specific criminal investigation of which the subpoena was 

part. The circuit court additionally concluded that, even if there was a valid basis 

for the investigation, Franklin County was not the appropriate venue, as all alleged 

acts occurred in another county. The second appeal (No. 2023-CA-1140-MR)

involves the circuit court’s order to unseal parts of the record of the case which had 

been sealed previously in its entirety. We have consolidated the appeals and 

address both in this Opinion. 

 After an extensive review of the record, the parties’ briefs, oral 

argument, and for the detailed reasons which follow, we affirm on appeal No. 

2023-CA-1103-MR. We vacate on appeal No. 2023-CA-1140-MR and remand to 

the circuit court with directions to conduct a hearing on sealing the record to 

include consideration of how this Court has addressed this case.
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FACTUAL AND PROCEDURAL HISTORY

This case arises from an investigation by the OAG. This investigation 

relates to the employment of the Does, both employed by Roe LLC. At the same 

time and in the same county, the Does had another employer. This other employer 

receives some of its general funding (much less than a majority) from the 

Commonwealth. The OAG’s focus for this investigation is potential “‘violations 

of the criminal and penal laws arising out of, involving or in connection with state 

funds’ paid for ‘services . . . to the Commonwealth or any of its political 

subdivisions.’”

1

In June 2023, the OAG issued a grand jury subpoena under the 

auspices of the Franklin County Grand Jury. The subpoena was directed to John 

Roe (“Roe”), a member of Roe LLC. This subpoena sought “any and all records 

on [the Does] including but limited [sic] to personnel files, employment 

agreements, job descriptions, compensation agreements, payroll records, copies of 

W-2 or 1099’s, all time & attendance information from hire date through 2022, 

[and] insurance policies held by [Roe LLC] for these employees.”2 The OAG 

sought to compare the employees’ records for evidence that unspecified and 

1 Appellant’s Brief, Page 1.

2

Id.
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indirect state funds paid to these employees may have been related to some 

malfeasance connected with their work.

 In July 2023, Roe and the Does moved the Franklin Circuit Court to 

quash the subpoena, claiming the documents sought are not relevant to any 

potential criminal charges and that requiring their production would be 

unreasonable and oppressive. They also moved to seal the record. The OAG 

agreed that the record should be sealed. 

The circuit court heard oral arguments on the motion to quash on 

September 1, 2023. It granted the motion to quash, holding that “the Attorney 

General has no jurisdiction over this matter, and venue is not authorized in 

Franklin County.”3 The circuit court held the subpoena was unreasonable and 

oppressive under RCr4 7.02. On September 27, 2023, which was after the first 

notice of appeal had been filed, the circuit court entered an additional order which 

unsealed a portion of the record. The OAG then made an emergency motion to 

this Court, asking for an order that the case remain sealed pending an opinion on 

the merits of the appeals, which was granted. 

3 Circuit Court’s Order, September 18, 2023, Page 15; Trial Record (“TR”) 76.

4 Kentucky Rules of Criminal Procedure.
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ANALYSIS

No. 2023-CA-1140-MR

We choose to address the question of sealing the record first because 

this will dictate how we address the issues presented in this Opinion, which will be 

made public. In doing so, we must resolve a tension between necessary secrecy of 

grand jury proceedings and the right of the public to know what its government is 

doing, which is served by access to court records. We conclude that the public 

issuance of this Opinion with appropriate pseudonyms for most participants will 

achieve the proper balance. Our decision will then call for a reassessment by the 

circuit court of sealing all or any part of its record. All of this Court’s record 

except for this Opinion will remain sealed recognizing the authority of the circuit 

court to first decide what, if any, further information should be made public. 

“From earliest times it has been the policy of the law in furtherance of 

justice to shield the proceedings of grand juries from public scrutiny. Secrecy is 

for the protection of the witnesses and the good names of innocent persons 

investigated but not indicted and is to inspire the grand jurors with a confidence of 

secrecy in the discharge of their duties.” Greenwell v. Commonwealth, 317 

S.W.2d 859, 861 (Ky. 1958). As the OAG points out, this secrecy also prevents 

interference by those who learn of an investigation and seek to frustrate a 

legitimate investigation. This secrecy is not a constitutional guarantee but rather a 
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strong public policy presently embodied in RCr 5.24. Maze v. Judicial Conduct 

Commission, 612 S.W.3d 793, 805-06 (Ky. 2020).

 On the other side of the scales is public policy favoring transparency 

in government. Courts specifically are subject to constitutional guaranties of 

“open” courts. KY. CONST. § 11 (public trial of criminal charges) and KY. CONST.

§ 14 (“All courts shall be open . . . .”). Court records are presumed to be open to 

public inspection, and the law requires compelling reasons to seal records. Cline v. 

Spectrum Care Academy, Inc., 316 S.W.3d 320, 325 (Ky. App. 2010). This is so 

even if all the parties want the records to be sealed. See Fiorella v. Paxton Media 

Group, LLC, 424 S.W.3d 433 (Ky. App. 2014). 

 United States Supreme Court Justice Brandeis, a Louisvillian,

counseled us: “Publicity is justly commended as a remedy for social and industrial 

diseases. Sunlight is said to be the best of disinfectants; electric light the most 

efficient policeman.”

5

 Or as Patrick Henry said: “The liberties of a people never 

were, nor ever will be, secure, when the transactions of their rulers may be 

concealed from them.”

6

 

5 LOUIS D. BRANDEIS, OTHER PEOPLE’S MONEY AND HOW THE BANKERS USE IT 92 (1914).

6 Patrick Henry, Speech on the Federal Constitution, Virginia Ratifying Convention (June 9,

1788), in THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE 

FEDERAL CONSTITUTION: VOLUME 3, 170 (Jonathan Elliot ed., 1836).
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 The approach of the circuit court was to release certain information 

within the record. This inevitably runs some risk of the damage an unnecessary 

disclosure of too much detail about a grand jury investigation may cause. It could 

also bring publicity and cause harm to people who have committed no crime. We 

intend to shine light on the legal process without adding unnecessary risk to the 

people investigated, who may yet be investigated regardless of the outcome of this 

appeal. We will be able to explain the general details sufficiently to justify the

legal conclusions reached and let the public know what its government is doing

without unnecessary risk to future grand jury proceedings.

 The decision of the circuit court to unseal portions of the file was 

made after the first appeal was filed. While it is within the discretion of the circuit 

court to decide the question of sealing the record or any part of it, there is a 

question of jurisdiction for the circuit court to have acted after the first appeal was 

filed. Cline, supra. Because we have kept the record sealed pending this decision, 

we will vacate the order entered by the circuit court regarding sealing of the record 

and remand this issue to the circuit court for further consideration. Until the circuit 

court makes that decision, the circuit court record will remain sealed pursuant to 

our previous order. 
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No. 2023-CA-1103-MR 

 The OAG argues the circuit court made several errors in granting the 

motion to quash the subpoena. It claims first that the Does lack standing to 

challenge the subpoena. The OAG also claims the circuit court erred in its 

conclusion that the OAG had no legal authority to issue the subpoena. Finally, the 

OAG insists that Franklin County is a proper venue for the investigation. We will 

address these purported errors one at a time.

I. The Does Have Standing to Challenge the Subpoena

The circuit court ruled that the Does have standing to challenge the 

subpoena. In its brief, the OAG asks this Court to reverse that ruling and to 

dismiss them as parties. Standing is a question of law and is reviewed de novo. 

Tax Ease Lien Investments 1, LLC v. Commonwealth Bank & Trust, 384 S.W.3d 

141, 143 (Ky. 2012). 

The OAG argues that the Does lack standing to quash the subpoena 

because the subpoena was directed to Roe LLC, a corporate entity which is just an 

employer for the individual Does and in which the individual Does have no 

ownership interest. The subpoena only sought employment information about 

employees. 

“To have standing to sue in Kentucky, the basic rule is that the person 
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must have a ‘judicially recognizable interest in the subject matter of the suit.’” 

Commonwealth ex rel. Beshear v. Commonwealth Off. of the Governor ex rel. 

Bevin, 498 S.W.3d 355, 361 (Ky. 2016) (citing Ashland v. Ashland FOP No. 3, 888 

S.W.2d 667, 668 (Ky. 1994)). In Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 

112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992), the United States Supreme Court 

established the following three requirements for standing: (1) injury, (2) causation, 

and (3) redressability. Kentucky adopted these requirements in Commonwealth

Cabinet for Health & Family Services, Department for Medicaid Services v. Sexton

By & Through Appalachian Regional Healthcare, Inc., 566 S.W.3d 185 (Ky. 

2018).

The first requirement for standing is that the plaintiff must have 

suffered an injury-in-fact. Lujan, supra, at 560. A plaintiff must demonstrate he 

or she has suffered a concrete and particularized injury that is either actual or 

imminent. Sexton, supra, at 196. This injury must be “distinct and palpable,” and 

not “abstract” or “conjectural” or “hypothetical.” Id. As for the last two 

requirements of causation and redressability, “[t]he injury must be ‘fairly’ 

traceable to the challenged action, and relief from the injury must be ‘likely’ to 

follow from a favorable decision.” Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 

3315, 3324, 82 L. Ed. 2d 556 (1984), abrogated on other grounds by Lexmark 
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International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 S. Ct. 

1377, 188 L. Ed. 2d 392 (2014).

The Commonwealth argues Bishop v. Caudill, 87 S.W.3d 1 (Ky. 

2002), is controlling. In Bishop, the Kentucky Supreme Court recognized that 

criminal defendants generally do not have standing to inquire into grand jury 

investigations, but only “[s]o long as it is not the sole or dominant purpose of the 

grand jury to discover facts relating to [a defendant’s] pending indictment.” Id. at 

4. In other words, prosecutors cannot use the grand jury to investigate defenses 

raised by an indicted criminal defendant. Pretrial and trial processes serve that 

purpose. 

Throughout this case, the OAG relies upon the distinction between 

investigative power and prosecution of cases after charges have been brought. The 

OAG believes its investigative power is much broader than its power to prosecute 

charges. We should keep that distinction in mind when we consider the 

application of Bishop. In the present case, we are dealing with potential criminal 

defendants against whom no charges have been brought, unlike the defendant in 

Bishop. 

The circuit court relied upon the right of third parties to quash grand 

jury subpoenas directed to others, which has been repeatedly upheld, citing In re 

Grand Jury, 111 F.3d 1066, 1073-74 (3d Cir. 1997). “It is well-established that a 
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litigant may have sufficiently important, legally-cognizable interests in the 

materials or testimony sought by a grand jury subpoena issued to another person to 

give the litigant standing to challenge the validity of that subpoena.” Id. at 1073. 

See also Gravel v. United States, 408 U.S. 606, 92 S. Ct. 2614, 33 L. Ed. 2d 583

(1972) (United States Senator allowed to move to intervene and quash subpoena 

directed to his assistant). “A party has standing to move to quash a subpoena 

addressed to another if the subpoena infringes upon the movant’s legitimate 

interests.” United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982). The law 

recognizes a citizen’s right to privacy, and a subpoena for records may become 

unreasonable in violation of the Fourth Amendment. See United States v. 

Calandra, 414 U.S. 338, 346, 94 S. Ct. 613, 619, 38 L. Ed. 2d 561 (1974). 

We agree with the circuit court that the Does had standing to bring 

this action with Roe on behalf of Roe LLC. The OAG is seeking information 

related to the Does’ personal financial and tax information, which is not generally 

available to the public. There is no other way for the Does to address this potential 

invasion of their privacy other than to attempt to quash the subpoena addressed to 

one of their employers. The circuit court did not err in finding the Does had 

standing.

Even if the OAG was correct in its standing argument as to the Does, 

Roe on behalf of Roe LLC, to whom the subpoena was directed, certainly had
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standing. The OAG demanded that Roe LLC produce its records, and it may 

object to any improper purpose of a subpoena directed to it. Because, at a 

minimum, at least one party in this action had standing to challenge the subpoena, 

it was appropriate for the circuit court to proceed and now for this Court to 

continue its review. See Commonwealth ex rel. Beshear, supra, at 369.

II. The Authority of the OAG

 We sometimes hear about a “unified” prosecutorial system in 

Kentucky. The use of the word “unified” may be misleading. What we actually 

have is a cooperative system among prosecutors who are all constitutional officers

of the Commonwealth. Local prosecutors, elected by their respective 

communities, “do not answer to the Attorney General.” Couch v. Commonwealth, 

686 S.W.3d 172, 179 (Ky. 2024). 

Section 91 of the Kentucky Constitution establishes the OAG. His or 

her duties “shall be such as may be prescribed by law[.]” In 1936, our state 

government went through a thorough reorganization. The OAG lost a challenge to 

the limitations enacted as part of this reorganization. Johnson v. Commonwealth 

ex rel. Meredith, 165 S.W.2d 820 (Ky. 1942) (the use of the word “prescribed” 

gives the legislative branch the power to define what the OAG can and cannot do 

so long as the legislature does not effectively eliminate the office). As part of this 
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initial reorganization, the Department of Law was created. Current statutes on the 

authority of the OAG are now found primarily in KRS Chapter 15.

 “The Attorney General is the head of the Department of Law.” KRS 

15.010(1). He or she serves as the “chief law officer” for the Commonwealth and 

its numerous departments and agencies. KRS 15.020(1). In a civil capacity, the 

OAG may participate in suits to defend the provisions of our Constitution.

Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 867 (Ky. 1974). We 

also find in the statutes the titles of “chief law enforcement officer” and “chief 

prosecutor of the Commonwealth.” KRS 15.700. The OAG has many obligations 

in both civil and criminal matters.

 When it comes to criminal cases, the OAG may assist when requested to 

do so by local prosecutors in “any criminal investigation or proceeding.” KRS 

15.190. This authority indicates the cooperative nature of the system. KRS 

15.700. Other designated people, such as a mayor or sheriff, may also invite the 

OAG to investigate and prosecute crimes. KRS 15.200(1); Matthews v. Pound, 

403 S.W.2d 7 (Ky. 1966). In these situations, the OAG may do what the local 

prosecutor may do, including issuing subpoenas. KRS 15.210. But the OAG may 

not deprive the local prosecutors of their authority, which includes their 

prosecutorial discretion. KRS 15.220; KRS 15.745.
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 In the specific context of criminal prosecution, the General Assembly 

gave the OAG independent authority over certain types of cases. For example, the 

OAG may prosecute cases involving identity theft. KRS 15.231. See also 

Commonwealth v. Johnson, 423 S.W.3d 718 (Ky. 2014) (statute within KRS 

Chapter 218A gave the OAG authority to investigate and prosecute drug related 

crimes).

 The OAG argues that the subpoena in question here was authorized 

by another specific grant of authority – prosecution of those who receive improper 

payment from the state treasury. KRS 15.715(6) provides:

The Attorney General shall have the duty, within the 

Forty-eighth Judicial Circuit, to prosecute any person 

who receives compensation from the Treasury of the 

Commonwealth of Kentucky for all violations of the 

criminal and penal laws arising out of, involving or in 

connection with state funds, or the sale or transfer of 

goods or services by or to the Commonwealth or any of 

its political subdivisions; and specifically including, but 

not limited to, all violations set forth in KRS Chapters 

521 and 522. Nothing herein shall be construed to 

change the venue provision presently existing under 

Kentucky law as of July 15, 1980. 

III. The Circuit Court Did Not Abuse its Discretion in Quashing the 

Subpoena

With KRS 15.715(6) in mind, we need to give some further 

explanation of the issues being investigated. Basically, the idea is that the Does

were being paid by their other employer while at the same time being paid by Roe 
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LLC. The work done by the Does intersected between their two employers. 

Whether denominated as theft or some other malfeasance with funds, the 

investigation sought evidence about payments made by the other employer which 

could have somehow improperly overlapped with payments made by Roe LLC.

 The other employer has at least a budgetary connection with the 

Commonwealth, but it is not a “political subdivision” of the Commonwealth as 

contemplated by KRS 15.715(6). While other sources make up a large majority of

the other employer’s budget, we may say as a hypothetical that state funds could be 

up to 15% of the other employer’s total revenue. The OAG then reasons that any 

payments to the Does from the other employer are at least partially indirect 

payments from the state treasury. The OAG felt this connection could lead to a 

crime relating to payments made from the state treasury, and the OAG has 

authority in Franklin County to at least investigate such a crime under KRS 

15.715(6).

Taking the Commonwealth’s position at face value, to read KRS 

15.715(6) to allow the OAG investigative authority for criminal charges under the 

specific facts of this case would be more than a stretch of this statute. The statute 

does not use the word direct nor the word indirect, but it does require a payment 

“from the treasury.” As the circuit court pointed out with citation to many cases, 

this statute deals only with direct payments from the treasury in Frankfort.
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Franklin County is the seat of government and the 

place of payments from the State Treasury. It is not 

illogical, arbitrary or unreasonable to authorize 

prosecution at this location for offenses involving 

payments of state funds. The Attorney General is an 

appropriate officer to investigate and prosecute any 

person who wrongfully receives compensation from the 

state treasury for violations of the criminal laws of this 

state involving state funds along with certain other 

offenses enumerated within the statute.

Graham v. Mills, 694 S.W.2d 698, 700 (Ky. 1985). 

 The OAG provides examples of cases from Franklin County to 

support the OAG’s authority to bring a case in Franklin County although the 

questionable conduct occurred outside of Franklin County. For example, the OAG

cites Hodges v. Commonwealth, 614 S.W.2d 702 (Ky. App. 1981) and Evans v. 

Commonwealth, 645 S.W.2d 346 (Ky. 1982). But the cases the OAG references 

are distinguishable from the circumstances of this case. The indictments returned 

by the Franklin County Grand Jury addressed in these cases refer to crimes where 

funds from the state treasury were paid directly to the defendants in question from 

the treasury in Frankfort, whether in the form of benefits, grants, or compensation.

 Hodges dealt with a deputy sheriff who made claims for mileage and 

expenses, which were sent to and paid by the treasury. Hodges, supra, at 703. 

Evans was a physician who committed fraud in order to obtain Medicaid benefits

from an allocation of funds directly financed through the treasury. Evans, supra.
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 That is not the case for the Does. The Does do not receive any funds 

directly from the treasury. They are employees, and their employers, not the 

Commonwealth, are responsible for their paychecks. Those paychecks are not 

issued from the state treasury. Simply because an employer receives some small 

percentage of funding from the Commonwealth does not mean the OAG can 

investigate payments by that employer which have only some theoretical and 

indirect connection to state funding. 

 We again note the cooperative nature of our prosecutorial system. No 

one in the county where the Does work asked the OAG to assist in investigating 

some crime in that other county. The OAG’s reading of the statute disregards the 

final sentence of the governing statute, which clearly states “[n]othing herein shall 

be construed to change the venue provision[s] presently existing under Kentucky 

law as of July 15, 1980.” KRS 15.715(6). If the General Assembly intended the 

statute to be read as the OAG asserts, this final sentence would have been

unnecessary.

 We will not engage in a “parade of horribles” should the interpretation 

of KRS 15.715(6) of the OAG be accepted, but we will suggest one entry in such a 

parade. State funds are used to pay for roads. One budgeted project is for roads 

outside Franklin County. A contractor wins a competitive bid to work on the 

roads. The contractor receives payments with a direct connection to the state 
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treasury. One of many subcontractors is paid by the contractor and then with what 

he received from the contractor the subcontractor commits a crime by using his pay 

to engage in a crime where he lives. The subcontractor might have diverted funds 

owed to his own subcontractors. Would the OAG come in uninvited to investigate 

or prosecute such a case rather than allow local prosecutors to deal with the matter 

under the criminal law entrusted to those local officials for prosecution? We 

cannot read KRS 15.715(6) so broadly. We cannot see how KRS 15.715(6) 

applies just because some indirect connection to state funds can possibly be shown. 

 This was part of the reasoning of the circuit court. The OAG was 

actually looking into theft or some similar crime in another county. The record 

contains no indication that either of the two employers claimed any improper 

activity by the Does. The local prosecutors did not look into such charges and did 

not invite the OAG to come in.

We cannot find actual support for the proposition that the general 

authority of the OAG means that this office may be used to investigate or 

prosecute any potential connection to funds provided by or regulated by the state. 

To the contrary, we suggest an analogy to Commonwealth ex rel. Ferguson v. 

Gardner, 327 S.W.2d 947 (Ky. 1959). The OAG may supervise administration of 

charitable trusts. This did not give the OAG authority to intervene in a will contest 

case because funds may go to such a trust. Similarly, our legislature did not clearly 
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indicate an intention to give the OAG authority to initiate any potential criminal 

investigation because some indirect connection to state funding might be shown. 

This would be contrary to every published and unpublished case in which KRS 

15.715(6) has been applied. The statute has been consistently interpreted to 

require a more direct payment from the treasury. 

 Even if the OAG was correct or only arguably mistaken in its use of 

KRS 15.715(6), we recognize the careful division of the powers among the 

legislative, judicial, and executive (of which the OAG is part) branches of our 

government as demanded by KY. CONST. § 28. When the OAG issues a subpoena, 

it utilizes the judicial branch. The judicial branch has authority to regulate the use 

of subpoenas and specifically has the authority to quash them when “compliance 

would be unreasonable or oppressive.” RCr 7.02(3). This rule mirrors federal 

rules on the subject. FRCRP7 17(c)(2). Neither the federal nor state rule excludes 

grand jury subpoenas from its coverage. 

 “[M]otions to quash subpoenas are subject to the trial court’s sound 

discretion and will be reversed on appeal only for abuse of that discretion.”

Commonwealth v. House, 295 S.W.3d 825, 828 (Ky. 2009). “The test for abuse of 

discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, 

7 Federal Rules of Criminal Procedure. 
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or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 

941, 945 (Ky. 1999). However, “[s]tatutory construction is a matter of law which 

requires de novo review.” Commonwealth v. Johnson, 423 S.W.3d 718, 720 (Ky. 

2014). 

 Having considered the argument that the OAG advanced under KRS 

15.715(6), the circuit court believed the subpoena issued to Roe LLC was a 

“fishing expedition” of the kind condemned in Commonwealth v. House, 295 

S.W.3d 825, 828 (Ky. 2009).8 The circuit court reached this conclusion in part due 

to the fact that the records sought in the subpoena were the same records sought 

but denied in a previously filed civil case that had been dismissed. We find further 

support for the discretion exercised by the circuit court from federal authorities. 

The United States Supreme Court has determined “[t]he grand jury 

occupies a unique role in our criminal justice system. It is an investigatory body 

charged with the responsibility of determining whether or not a crime has been 

committed. Unlike this Court, whose jurisdiction is predicated on a specific case 

or controversy, the grand jury can investigate merely on suspicion that the law is 

being violated, or even just because it wants assurance that it is not.” United States 

v. R. Enterprises, Inc., 498 U.S. 292, 297, 111 S. Ct. 722, 726, 112 L. Ed. 2d 795 

(1991) (internal quotation marks and citations omitted). However, “[t]he 

8 Circuit Court Order, September 18, 2023, pages 14-15; TR 75-76.
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investigatory powers of the grand jury are nevertheless not unlimited. Grand juries 

are not licensed to engage in arbitrary fishing expeditions, nor may they select 

targets of investigation out of malice or an intent to harass.” Id. at 299, 111 S. Ct. 

at 727 (citations omitted).

Both the Kentucky rule and the federal rule grant a court authority to 

quash a subpoena if it determines it is unreasonable or oppressive. In order to 

show compliance with a subpoena would be unreasonable or oppressive it must be 

shown “(1) there is no reasonable possibility that the category of materials the 

Government seeks will produce information relevant to the general subject of the 

grand jury’s investigation; or (2) the subpoena is too indefinite; or (3) compliance 

would be overly burdensome.” Matter of Dillon, 824 F. Supp. 330, 333 

(W.D.N.Y. 1992) (internal quotation marks omitted). 

The circuit court here found that the subpoena issued was 

unreasonable, because there was no “allegation that state funds were used directly 

in any manner that would violate the penal code”9and that the Commonwealth 

provided no “citation to legal precedent that would support the theory that a crime 

may have been committed that is related to the personal and tax information 

sought[.]”

10

 The circuit court’s conclusion meets the Supreme Court’s standard, 

9 Circuit Court’s Order, September 18, 2023, page 14; TR 75.

10 Id.
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which is “the motion to quash must be denied unless the district court determines 

that there is no reasonable possibility that the category of materials the 

Government seeks will produce information relevant to the general subject of the 

grand jury’s investigation.” R. Enterprises, Inc., supra, at 301, 111 S. Ct. at 728.

 This first criterion necessarily assumes the general subject matter of 

the grand jury’s investigation is within the proper scope of that grand jury – to 

investigate potential crimes which may be prosecuted in that jurisdiction. Venue 

still matters, as KRS 15.715(6) plainly states. In the circumstances of this case, the 

circuit court committed no legal error and did not abuse its discretion in quashing 

what it determined to be an unreasonable subpoena. 

While we do not wish to overuse the hackneyed phrase of a “fishing 

expedition,” we reiterate that the OAG was fishing in the wrong pond. The Does 

live and work outside of Franklin County. Both of their employers are outside of 

Franklin County, and their paychecks are not issued from the state treasury; they 

are issued by employers outside of Franklin County. There is simply no sufficient 

nexus that can justify a Franklin County Grand Jury issuing subpoenas for the 

criminal investigation by the OAG under the circumstances of this case. 

CONCLUSION

 On Appeal No. 2023-CA-1103-MR, we affirm the Franklin Circuit 

Court’s order quashing the subpoena in question. On Appeal No. 2023-CA-1140-
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MR, we vacate the Franklin Circuit Court’s order which unseals part of the record, 

and we remand to the circuit court for further proceedings on the sealing of the 

record.

ALL CONCUR. 

BRIEFS FOR APPELLANT:

Office of the Attorney General

Frankfort, Kentucky 

ORAL ARGUMENT FOR 

APPELLANT: 

Elizabeth Hedges

Frankfort, Kentucky

BRIEF FOR APPELLEE DOE 1:

Kent Wicker

William H. Brammell, Jr. 

Louisville, Kentucky

BRIEF FOR APPELLEE DOE 2:

Tricia F. Lister

Louisville, Kentucky

BRIEF FOR APPELLEE ROE:

Patrick J. Renn

Louisville, Kentucky

ORAL ARGUMENTS FOR 

APPELLEES:

William H. Brammell, Jr.

Louisville, Kentucky