DocketNumber: 2016 SC 000303
Filed Date: 8/28/2017
Status: Precedential
Modified Date: 8/30/2017
RENDERED: AUGUST 24, 2017 TO BE PUBLISHED ~upr:etu:e2010 WL 881907 (E.D. Ky., Mar. 5, 2010). Following remand, Scott and Fleming amended their complaint two times to add an allegation of violation of the Kentucky Civil Rights Act, KRS Chapter 344 and to name individual defendants. Ultimately, the trial court dismissed most of Scott's and Fleming's claims. In a 2012 Order, the trial court held that KSP and four individuals named in official capacities were all entitled to governmental immunity. Yanero v. Davis,65 S.W.3d 510, 519 (Ky. 2001). Subsequently, and as to the KRS Chapter 18A claims, the trial court recognized that its jurisdiction with respect to administrative proceedings was limited to matters appealed under KRS i8A.100 and Chapter l3B. The court, similarly, dismissed the KRS Chapter 344 claims, holding that "[p)olitical affiliation is not a protected class.under the Civil Rights Act." As to the claims for violation of the Kentucky Constitution, the trial court recognized that no tort cause of action exists in Kentucky to provide money damages for constitutional violations. See St. Luke's Hosp., Inc. v. Straub,354 S.W.3d 529, 537 (Ky. 2011) (declining to create judicially a new_ constitutional tort for a private right of action for state constitutional violations). Despite the foregoing, the trial court, nevertheless, permitted the case to go forward, stating The Court interprets [Straub) to mean that Plaintiff[s1 claims based directly on the Kentucky Constitution for monetary damages are foreclosed, but not that Plaintiff[s are) barred from bringing any and all claims directly under the Kentucky Constitution. If the plaintiffs demonstrate a constitutional violation in the form of 5 political discrimination that violates the right to freedom of association and the right of equal protection, they should have a remedy. The remedies available to the Plaintiffs may be limited to equitable relief, such as injunctive relief, but it would be premature to dismiss their claims. If Plaintiffs prove a violation of their right to equal protection under the state constitution, they may be entitled to injunctive relief in the form of reinstatement, backpay, restoration of retirement benefits, or some other actions necessary to make them whole[.] See e.g., 200 KAR 12:030. Courts are afforded "broad equitable discretion to fashion back pay awards." Dauid u. Caterpillar, Inc.,324 F.3d 851, 865 (7th Cir. 2003). The trial court held a bench trial in October 2013, following which it entered an Opinion & Order adjudicating the sole issue of "whether Plaintiffs' constitutional right to equal protection was violated when [KSP] hired Mark Boaz as an Arson Investigator II, at a substantially higher rate of pay." In its Findings of Fact, the court made extensive findings with respect to Boaz's, Scott's and Fleming's employee class, pay and history, and what it characterized as a number of irregularities in the hiring process for Boaz. The trial court concluded that KSP committed "flagrant violations of the hiring procedures required in KRS Chapter 18A[,]" but noted the administrative violations are not before the court by Scott's and Fleming's failure to exhaust admirative remedies. The court, however, held that Scott and Fleming had met their burden of showing a prima facie case of an equal protection violation, specifically grossly unequal treatment between themselves and Boaz, for which KSP had failed to prove any rational or reasonable justification, entitling them to equitable relief. In its judgment, the court stated: 6 Plaintiffs right to equal protection under the Kentucky Constitution Section [2]151 was violated by Defendant. KSP failed to prove any rational or reasonable justification for the grossly unequal treatment of Mr. Boaz as compared to the Plaintiffs. By reason of this violation of their right to equal protection under the state constitution, Plaintiffs are entitled to injunctive relief in the form of reinstatement to a position with the same grade and pay as Mr. Boaz, back pay, restoration of retirement benefits, and any other actions necessary to make them whole. See e.g., 200 KAR 12:030. Courts are afforded "broad equitable discretion to fashion back pay awards." David v. Caterpillar. Inc.,324 F.3d 851, 865 (7th Cir. 2003). Accordingly, IT IS ORDERED AND ADJUDGED: 1. That the Plaintiffs shall be paid back pay and benefits at the same rate KSP paid Mark Boaz for all wages and benefits for the entire period of employment in which each plaintiff was employed by KSP starting with the date of the original employment of Mr. Boaz, with said wages and benefits to be calculated and credited to the Plaintiffs consistent with 200 KAR 12:030; 2. The Plaintiffs are entitled to the following injunctive and equitable relief against Defendant in order to be made whole: a. Kentucky State Police shall reimburse Plaintiff Terry Scott an amount of back pay as if he were employed at the same rate as Mark Boaz from the date of the hire of Terry Scott, April 1, 2002 until present, similar to Mark C. Boaz who was employed at the following monthly rates of pay for the time period: (1) $3,173.58 per month from November 16, 2004 until December 07, 2004; (2) $3,205.32 per month from January 12, 2005 until December 1, 2005; (3) $3,365.60 per month until July 17, 2006; (4) $3,469.78 per month until December 11, 2006; (5) $3,569.78 per month until July 11, 2007; (6) $3,882.28 per month until December 10, 2007; (7) $3,982.29 per month until December 12, 2008; and, (8) $4,062.36 per month until April 23, 2010. Further, Kentucky State Police shall restore his retirement benefits in an amount commensurate with his rate of pay being equal to that of Mark C. Boaz as detailed above; b. Kentucky State Police shall reimburse Plaintiff Damon Fleming an amount of back pay as if he were employed at the same rate as Mark Boaz from the date of the hire of Terry Scott, 5In this final section of its Opinion & Order, the trial court referred to Section 3 of the Kentucky Constitution. Earlier portions of the Opinion, however, make clear that the court intended to refer to Section 2. 7 November 1, 2002 until July 10, 2009, similar to Mark C. Boaz who was employed at the following monthly rates of pay for the time period: (1) $3,173.58 per month from November 16, 2004 until December 07, 2004; (2) $3,205.32 per month from January 12, 2005 until December 1, 2005; (3) $3,365.60 per month until July 17, 2006; (4) $3,469.78 per month until December 11, 2006; (5) $3,569.78 per month until July 11, 2007; (6) $3,882.28 per month until December 10 , 2007; (7) $3,982.29 per month until December 12, 2008; and, (8) $4,062.36 per month until April 23, 2010. Further, Kentucky State Police shall restore his retirement benefits in an amount commensurate with his rate of pay being equal to that of Mark C. Boaz as detailed above; The trial court's order was made final and appealable. CR6 54.02(1). KSP appealed to the Court of Appeals. In a split opinion, that court affirmed the trial court judgment. KSP argued that Scott and Fleming had failed to exhaust their administrative remedies. The Court of Appeals majority opinion rejected this argument on the basis that such exhaustion is not required when attacking the validity of a statute or regulation as void on its face because an administrative agency cannot decide constitutional issues, citing Commonwealth v. DLX, Inc., 42 S,W.3d 624, 626 (Ky. 2001). In contrast, the Court _of Appeals dissent noted the exception to exhaustion set out in DLX was inapplicable because Scott and Fleming did not attack the constitutional validity of a statute or regulation either on its face or as applied. In other words, Scott and Fleming's direct action was precluded by their failure to exhaust their administrative remedies. The dissent further urged that Scott and Fleming's direct action for b~ck pay was counter to this Court's decision in. Straub, 354 S.W.3d at 537-38. 6 Kentucky Rules of Civil Procedure. 8 KSP filed a motion for discretionary review, which we granted. II. Standard of Review. In this case, the trial court held a bench trial. Thus, to the extent that any factual issues are germane to our review, we, of course, defer to the fact finder, in this instance the trial court, and "[f]indings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01. That said, the issues in this case seems to involve pure questions oflaw, and are therefore subject to de novo review by this Court. Louisville & Jefferson Cnty. Metro. Sewer Dist. v. Bischoff,248 S.W.3d 533, 535 (Ky. 2007) (citing Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet,983 S.W.2d 488,490 (Ky.1998)). III. . Issue on Appeal. As in both lower courts, KSP argues that Scott's and Fleming's failure to exhaust administrative remedies bars their direct action in the Franklin Circuit Court. We agree. As noted, exhaustion of administrative remedies is required prior to resort to the courts. DU(, 42 S.W.3d at 625 (citing Goodwin v. City of Louisville,309 Ky. 11,215 S.W.2d 557,559 (1948)). Three exceptions exist to this rule oflaw: (1) a party demonstrates the futility of continuing the administrative process, (2) a statute authorizes direct judicial relief, and (3) a party challenges the constitutionality of a particular regulation or statute on its face. Popplewell's Alligator Dock No. 1, Inc. v. Revenue Cabinet,133 S.W.3d9 456, 471 (Ky. 2004). If none of these exceptions apply, then the court is deprived of subject matter jurisdiction. In DLX, a mining company aggrieved by the Natural Resources and Environmental Protection Cabinet ("Cabinet") alleged taking of its property without compensation in violation of Section 242 of the Kentucky Constitution filed a direct action in Franklin Circuit Court. In holding that exhaustion of administrative remedies was required, we held Exhaustion of administrative remedies is not necessary when attacking the constitutionality of a statute or a regulation as void on its face. Goodwin[,309 Ky. 11,215 S.W.2d at 559]. This is because an administrative agency cannot decide constitutional issues.Id.Thus, to raise the facial constitutional validity of a statute or regulation at the administrative level would be an exercise in futility. This exception does not apply in the case at bar, however, because DLX has not challenged the facial validity of the surface mining statutes and regulations. Rather, as its complaint shows, DLX's argument is that the Cabinet's application of the statutes and regulations resulted in an unconstitutional taking of its property. When an administrative agency applies a statute unconstitutionally, it acts beyond the bounds of the constitution, rather than passing on a constitutional question. In other words, until a statute has been applied, there can be no unconstitutional application. This is the basis for the rule that one must first show injury as the result of a statutory application, before that application may be attacked as unconstitutional. See, e.g., Stein v. Kentucky State Tax Commission,266 Ky. 469,99 S.W.2d 443, 445 (1936). Thus, exhaustion of administrative remedies is not futile to an as-applied challenge to a statute. Quite the contrary, it is the administrative action which determines the extent, if any, of the constitutional injury. DLX, 42 S.W.3d at 626; see also Kentucky Exec. Branch Ethics Comm'n v. Atkinson,339 S.W.3d 472, 476 (Ky. App. 2010) (holding that property valuation administrators were required, notwithstanding claim of agency's arbitrary 10 exercise of power, to exhaust administrative remedies before seeking judicial relief). Similar to DLX, Scott and Fleming have not challenged the facial validity of any statutes or regulations. Instead, they have challenged KSP's application of hiring statutes and regulations in its hiring of Boaz which, they claim, has injured them. Under KRS 18A.095, administrative jurisdiction over penalization is vested in the Personnel Board. Irrespective of whether the Personnel Board's 2007 decision regarding Scott's and Fleming's claim was correct, their obligation was to appeal timely that decision to the Franklin Circuit Court. KRS 13B.140, 18A.100. That determination is long since final, and operates as res judicata of any matters arising from the facts as alleged by Scott and Fleming. See Godbey v. Univ. Hosp. of Albert B. Chandler Med. Ctr., Inc.,975 S.W.2d 104, 105 (Ky. App. 1998) ("Kentucky has for many years followed the rule that the decisions of administrative agencies acting in a judicial capacity are entitled to the same res judicata effect as judgments of a court."). Becaus~ we decide this case on the basis of Scott's and Fleming's failure to exhaust their administrative remedies, we do not reach the other primary issue raised: whether the trial court effectively awarded Scott and Fleming monetary damages contrary to our decisions in Yan~ro v. Davis,65 S.W.3d 510; and St. Luke's lfosp., Inc. v. Straub,354 S.W.3d 529. 11 IV. Conclusion. Based on the foregoing, we reverse the Opinion of the Court of Appeals. All sitting. All concur. COUNSEL FOR APPELLANT: Shawna Virgin Kincer Kentucky State Police COUNSEL FOR APPELLEE: David F. Broderick Brandon T. Murley Broderick & Davenport, PLLC COUNSEL FOR AMICUS CURIAE KENTUCKY PERSONNEL CABINET: Rosemary Holbrook Office of Legal Services Kentucky Personnel Cabinet. 12
Lori David v. Caterpillar, Incorporated , 324 F.3d 851 ( 2003 )
St. Luke Hospital, Inc. v. Straub , 354 S.W.3d 529 ( 2011 )
Godbey v. University Hospital of the Albert B. Chandler ... , 975 S.W.2d 104 ( 1998 )
Yanero v. Davis , 65 S.W.3d 510 ( 2001 )
Stein v. Kentucky State Tax Commission , 266 Ky. 469 ( 1936 )