DALE L. OWENS V. LINDA FRANK; and KENTUCKY STATE PAROLE BOARD
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RENDERED: April 23, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002882-MR
DALE L. OWENS
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 97-CI-157
V.
LINDA FRANK; and KENTUCKY
STATE PAROLE BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; COMBS and GARDNER, Judges.
GUDGEL, CHIEF JUDGE:
This is a pro se appeal from an order
entered by the Morgan Circuit Court dismissing appellant’s action
on the ground that it was barred by the applicable statute of
limitations.
For the reasons stated hereafter, we affirm.
Appellant was convicted of rape and burglary charges,
and was sentenced in March 1977 to serve 105 years in prison.
The state parole board reviewed appellant’s case twenty years
later.
As stated in its letter of March 3, 1995, the board
determined that appellant “must serve the remainder of [his]
sentence.”
Thirty months later, in September 1997, appellant filed
this pro se action in the circuit court, seeking a declaration of
rights, writ of mandamus, and injunctive relief.
Appellant
alleged that his constitutional rights were violated by the
application of certain amended administrative regulations.
However, the circuit court dismissed the action as barred by the
applicable statute of limitations.
This appeal followed.
The parties do not dispute that this action is governed
by KRS 413.140(1)(a), which requires an action to be commenced
“within one (1) year after the cause of action accrued.”
Instead, their dispute concerns the date on which the one-year
limitations period began to run.
As noted above, parole was initially denied in March
1995.
At that time, 501 KAR 1:030, Section 5(4) prohibited any
request to reconsider a decision denying parole until thirty
months from the board’s “most recent action on the inmate.”
That
wording was eliminated in May 1995, however, and was replaced
with language requiring any request for review of a parole denial
to be received by the parole board within twenty-one days after
that “final disposition is made available to the inmate.”
Appellant asserts that his constitutional rights were
violated by the retroactive application of the May 1995 amended
regulation, and that his September 1997 request for
reconsideration of the denial of parole should have been governed
by the version of the regulation which was in effect in March
1995, rather than by the regulation’s amended version.
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Further,
he asserts that the one-year limitations period did not begin to
run until the September 1997 expiration of the thirty-month
period provided in the earlier version of the regulation, and
that the trial court therefore erred by finding that this action
was not timely when it was filed in September 1997.
We disagree.
Although we have found no Kentucky cases which directly
address the retroactive application of the amended regulation, a
similar issue was addressed in Smith v. City of Glasgow, 809
F.Supp. 514 (W.D.Ky. 1992).
There, the plaintiff’s cause of
action accrued in April 1989, at which time Kentucky law provided
that his imprisonment tolled the running of the applicable
one-year statute of limitations.
However, the tolling statute
was repealed in July 1990, and the plaintiff’s action was filed
in April 1991.
The federal district court examined Kentucky
precedents and concluded that after the repeal of a statute which
tolls a limitations period, a plaintiff must be provided
reasonable time in which to bring a claim.
The court further
concluded that in the circumstances before it, the one-year
limitations period began to run on the effective date of the
statute’s repeal.
Hence, the plaintiff’s action was deemed
timely since it was filed within nine months of the statute’s
repeal.
Applying the same approach to the instant proceeding,
it is clear that appellant’s action was not timely filed.
The
record shows that Section 5(4) of the regulation was amended two
months after the initial denial of parole, but that appellant did
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not file this action until more than two years after that
amendment occurred.
Consistent with the views expressed in
Smith, supra, we conclude that appellant’s claim was not brought
within a reasonable time of the amended regulation’s effective
date, and that it therefore was not timely.
Hence, the trial
court did not err by dismissing appellant’s claim as being barred
by the one-year statute of limitations.
Given our conclusions to this point, we need not
address the merits of appellant’s remaining contentions.
The court’s order is affirmed.
GARDNER, J., CONCURS.
COMBS, J., DISSENTS AND FILES SEPARATE OPINION.
COMBS, JUDGE, DISSENTING: Almost exactly thirty months
after the denial of his parole by the state parole board,
appellant filed his pro se action for a declaration of rights in
circuit court.
His action was wholly consistent with 501 KAR
1:030,§ 5(4), which was the regulation in effect at the time of
his denial.
That regulation allowed no latitude as to time for
filing for reconsideration and instead strictly prohibited his
request for thirty months following the March 1995 action of the
parole board.
The appellant did not tarry more than a year after the
running of the 30-month period to file; under the statute in
effect at the time of the denial of his parole, he was both
timely and in compliance with the rigid dictates of the pertinent
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regulation.
Now his filing is being measured pursuant to the
change in the regulation of May 1995, and he is essentially being
penalized for complying with the regulation in effect at the time
of his action.
The result in this case is patently unfair.
I believe that the retroactive application of the new
regulation, coupled with a one-year statute of limitations, is an
unconstitutional denial of due process as applied to the unique
circumstances of his case and that his claim should not have been
dismissed as having been untimely filed.
Consequently, I would
vacate and remand for a hearing on the merits.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Dale L. Owens
West Liberty, KY
Keith Hardison
Frankfort, KY
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