Will McGinnis v. Kentucky Unemployment Insurance Commission ( 2023 )

RENDERED: SEPTEMBER 1, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1143-MR
WILL MCGINNIS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LUCY ANNE VANMETER, JUDGE
ACTION NO. 22-CI-01877
KENTUCKY UNEMPLOYMENT
INSURANCE COMMISSION AND
PAUL MILLER FORD, INC. APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.
CALDWELL, JUDGE: Will McGinnis (“McGinnis”) appeals from the Fayette
Circuit Court’s dismissal of his administrative appeal. We affirm.
FACTS
McGinnis sought unemployment benefits after resigning his
employment at Paul Miller Ford, Inc. A referee determined McGinnis was entitled
to benefits. But the Kentucky Unemployment Insurance Commission (“KUIC”)
reversed the referee’s decision in an order mailed out on June 17, 2022. McGinnis
filed a pro se complaint seeking judicial review of the KUIC’s order on June 30,
2022.
KUIC filed a motion to dismiss. Citing KRS1 341.450(1), KUIC
argued that the circuit court lacked jurisdiction over the case because McGinnis
failed to verify his complaint. KRS 341.450(1) requires that a complaint seeking
judicial review of an administrative decision about unemployment compensation
“shall be verified by the plaintiff or his attorney.”
On August 1, 2022, McGinnis filed a Motion to Add Sworn Statement
and Notarized Signature to Complaint & Response to Motion to Dismiss. He
argued that the verification requirement in KRS 341.450(1) was unclear. In his
filing he also stated: “In the alternative, I respectfully ask the Court to accept the
attached notarized statement which swears the complaint filed on June 30th in this
case is true, to the best of my knowledge and belief and that I have signed it under
penalty of perjury.”
Following additional briefing and a hearing, the trial court issued a
written order resolving McGinnis’s motion and KUIC’s motion to dismiss.
Relying on Kentucky case law construing KRS 341.450(1), the trial court
1
Kentucky Revised Statutes.
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determined it lacked jurisdiction over this case because the complaint filed in June
2022 did not comply with the verification requirement in KRS 341.450(1).
The trial court also denied McGinnis’s motion to add a sworn
statement and notarized signature to his complaint. It viewed this motion as a
motion to amend his complaint. It noted the motion to amend was filed more than
twenty days after the KUIC decision, making any appeal based on the tendered
amendment untimely.
McGinnis filed a timely appeal with this Court. He argues that KRS
341.450 is void for vagueness, implicitly suggests the dismissal should be
reversed, and requests that the case be remanded back to the trial court for a
resolution on the merits.2
The Appellees point out that McGinnis failed to notify the Attorney
General that he was challenging the validity of a statute. See KRS 418.075.3 The
2
Though we do not elect to impose any sanctions, McGinnis’s appellant brief does not fully
comply with our appellate briefing rules – including the requirement that the appellant state at
the beginning of his/her argument if and how his/her arguments were preserved for our review
by raising these issues to the trial court. See, e.g., Kentucky Rule of Appellate Procedure
(“RAP”) 32(A)(4). Though some leniency may occasionally be afforded to those who proceed
pro se rather than being represented by counsel, pro se litigants are expected to follow appellate
briefing rules and may be subjected to sanctions for failure to comply with these rules. See, e.g.,
Koester v. Koester, 569 S.W.3d 412 (Ky. App. 2019). In particular, failure to provide a
preservation statement may result in issues being reviewed only for manifest injustice rather than
under otherwise applicable standards of review. See Ford v. Commonwealth, 628 S.W.3d 147,
155 (Ky. 2021); Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012) (discussing the
consequences of failure to comply with the preservation statement requirement in former Rule of
Civil Procedure (“CR”) 76.12(4)(c)(v)).
3
KRS 418.075 provides in pertinent part:
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Appellees also point out that our Supreme Court has rejected assertions that the
verification requirement in KRS 341.450(1) is vague or ambiguous. See Kentucky
Unemployment Insurance Commission v. Wilson, 528 S.W.3d 336, 340 (Ky. 2017).
Lastly, they argue that the trial court correctly dismissed the action consistent with
binding precedent construing KRS 341.450(1) and other Kentucky statutes about
administrative appeals.4
Because we agree with the Appellees’ argument that the trial court’s
decision was consistent with precedent, we discern no error and we affirm.
ANALYSIS
Standard of Review
(1) In any proceeding which involves the validity of a statute, the Attorney
General of the state shall, before judgment is entered, be served with a copy of
the petition, and shall be entitled to be heard, and if the ordinance or franchise
is alleged to be unconstitutional, the Attorney General of the state shall also be
served with a copy of the petition and be entitled to be heard.
(2) In any appeal to the Kentucky Court of Appeals or Supreme Court or the
federal appellate courts in any forum which involves the constitutional
validity of a statute, the Attorney General shall, before the filing of the
appellant's brief, be served with a copy of the pleading, paper, or other
documents which initiate the appeal in the appellate forum. This notice shall
specify the challenged statute and the nature of the alleged constitutional
defect.
Our Supreme Court has recently stated: “Compliance with KRS 418.075 is mandatory
and appellate courts must demand strict compliance with the statute.” A.H. v. Louisville Metro
Government, 612 S.W.3d 902, 913 (Ky. 2020). Thus, we do not reach any issues about the
constitutional validity of KRS 341.450(1). In any event, we conclude the trial court’s resolution
of this case is consistent with binding precedent and there is no reason to disturb its judgment as
we explain in this Opinion.
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McGinnis did not file a reply brief so he did not respond to the Appellees’ arguments.
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This case presents issues about interpreting and applying legal
authority, both statutes and case law, as well as questions about the trial court’s
jurisdiction. Issues of jurisdiction and statutory interpretation are reviewed de
novo. Commonwealth v. B.H., 548 S.W.3d 238, 242 (Ky. 2018). Similarly,
“application of legal standards and precedents is reviewed de novo.”
Commonwealth v. Thompson, 548 S.W.3d 881, 887 (Ky. 2018).
No Error in Trial Court Rejecting Vagueness Argument and Concluding it
Lacked Jurisdiction Over Case Since the Complaint was Unverified
As stated by the trial court in its opinion and order:
Plaintiff [McGinnis] acknowledges he reviewed
the statute, saw the requirement that the Complaint be
“verified,” and made attempts to understand what
verification means in this context. He argues the word
“verified” is “vague and ambiguous. ”
The Kentucky Supreme Court considered this very
issue and expressly rejected the notion that the word
“verified” is “ambiguous.” See Kentucky Unemployment
Ins. Comm’n v Wilson, 528 S W 3d 336, 340 (Ky. 2017)
(holding, [“][i]n context with the rest of the statute the
meaning of ‘verified’ is plain and unambiguous . . .”)[.]
The Court held “verified” means “a formal declaration
made in the presence of an authorized officer, such as a
notary public, by which one swears to the truth of the
statements in the document.” Id. A trial court “cannot
disregard the words of the statute” and the verification
requirement is not satisfied by the unsworn signature of a
party[.]
And as stated by our Supreme Court and quoted by the trial court:
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For whatever reason, the legislature determined
that a complaint filed to obtain judicial review of a KUIC
decision “shall be verified by the plaintiff or his
attorney.” (Emphasis added.) A fundamental rule of
statutory construction commands that “effect must be
given, if possible, to every word, clause, and sentence of
a statute.” The judiciary is constrained to “giv[e] the
words their plain and ordinary meaning,” and to
“[deduce] the intent of the Legislature . . . from the
language it used, when it is plain and unambiguous.” We
cannot disregard the words of the statute simply because
we think the resulting application is harsh or we think the
statute would be better without them.
In context with the rest of the statute, the meaning
of “verified” is plain and unambiguous; we must give
effect to that word. Every pleading filed in the courts
must be “signed” by the party’s attorney, or by the party
himself if he has no attorney. CR 11. To construe the
verification requirement of KRS 341.450(1) as being
satisfied by the unsworn signature of a party or his
attorney is tantamount to simply reading the word
“verified” out of the statute. . . .
A complaint subscribed with an unsworn signature
lacking attestation before a notary or another officer
authorized to administer oaths is merely a signed
pleading sufficient for CR 11; but, it is not a verified
complaint as required by KRS 341.450(1).
Wilson, 528 S.W.3d at 340 (citations omitted).
In short, our Supreme Court has made clear that KRS 341.450(1)’s
verification requirement is not vague or ambiguous but is mandatory and means
that the plaintiff must make a formal declaration before a notary or other
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authorized officer swearing to the truth of his/her statements. Merely signing one’s
complaint is not sufficient. See Wilson, 528 S.W.3d at 340.
Our Supreme Court has also made clear that a court lacks jurisdiction
to review a KUIC decision unless there has been strict compliance with all
statutory requirements for filing this type of administrative appeal – including the
verification requirement in KRS 341.450(1). See Wilson, 527 S.W.3d at 339
(citing Taylor v. Kentucky Unemployment Ins. Comm’n, 382 S.W.3d 826, 830-31
(Ky. 2012)) (reaffirming the “firmly rooted concept of law in this state that the
courts have no jurisdiction over an appeal from an administrative agency action
unless every statutory precondition is satisfied” and noting “a significant line of
cases holding that the verification requirement of KRS 341.450(1) requires strict
compliance[.]”).
Regardless of the merits of any arguments for disturbing these clear
holdings from our Supreme Court, we lack the authority to overrule Kentucky
Supreme Court precedent. SCR5 1.030(8)(a) (“The Court of Appeals is bound by
and shall follow applicable precedents established in the opinions of the Supreme
Court and its predecessor court.”). Thus, we are constrained to conclude that the
trial court did not err in determining that it lacked jurisdiction over this case
because of McGinnis’s failure to verify his complaint filed June 30, 2022.
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Rules of the Supreme Court.
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No Error in Trial Court’s Denying McGinnis’s Motion, filed in August 2022,
to Correct the Failure to Verify His Complaint
The trial court construed “controlling case law” as holding that “the
civil rules of amendment do not apply until the appeal is perfected[.]” It concluded
that the appeal would be untimely because the tendered amendment to comply with
verification requirements was not filed within twenty days of the KUIC decision.
See KRS 341.450(1) (requiring that a verified complaint seeking judicial review of
a KUIC decision be filed “within twenty (20) days after the date of the decision of
the commission”). In so concluding it could not permit the amendment and must
dismiss the appeal, the trial court quoted Cabinet for Human Resources v.
Holbrook, 672 S.W.2d 672 (Ky. App. 1984):
A long line of Kentucky cases have held that where
appeal from an administrative agency decision is
permitted by statute, the requirements of the statute are
mandatory, and a circuit court does not obtain
jurisdiction to hear the appeal unless the statutory
requirements have been met. The civil rules which
would normally permit amendment do not apply to
appeals of administrative decisions until after the appeal
has been perfected and jurisdiction has attached.
Id. at 675 (citations omitted).
The trial court’s application of Kentucky law to not permit the
amendment tendered more than twenty days after the KUIC decision is not
erroneous. Rather, it clearly follows binding precedent from our Supreme Court
which states one must file a verified complaint within twenty days of a KUIC
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decision to obtain judicial review. See Taylor, 382 S.W.3d at 831 (construing the
plain language of KRS 341.450(1) to provide: “[I]n order to secure judicial
review, a claimant must file a verified complaint against the KUIC and the
employer in the appropriate circuit court within twenty days after the KUIC’s
decision.”).
There is no appeal as a matter of right from an administrative agency
decision. Instead, one must strictly comply with all statutory requirements for
filing an administrative appeal in order to obtain judicial review. Wilson, 528
S.W.3d at 339. Only after the appeal has been perfected and the court’s
jurisdiction has attached do the Rules of Civil Procedure about amendment apply
in this context. Holbrook, 672 S.W.3d at 675. Furthermore, the appeal is not
perfected nor does the court’s jurisdiction attach unless a verified complaint is filed
within twenty days of the KUIC decision. See Taylor, 382 S.W.3d at 831; Wilson,
528 S.W.3d at 339.
In short, the trial court properly followed precedent in concluding
that it could not permit the amendment when it was tendered – well over twenty
days after the KUIC decision. So, we must affirm on this issue as well.
Further arguments in the parties’ briefs which are not discussed herein
have been determined to lack merit or relevancy to our resolving this appeal.
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CONCLUSION
For the foregoing reasons, we AFFIRM the trial court’s judgment.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES KUIC:
Will McGinnis, pro se Andrew T. Bryson
Lexington, Kentucky Frankfort, Kentucky
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