BIRDWHISTELL (MARK D.), ET AL. VS. BONE (DONNA), ET AL.
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RENDERED: MARCH 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002076-MR
MARK D. BIRDWHISTELL;
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 08-CI-00170
DONNA BONE, AS GUARDIAN
FOR THE MINOR T.G.B.; LISA
KAY LABB, AS GUARDIAN FOR
THE MINOR S.A.L.; AND CHILD
WATCH CHILDREN’S ADVOCACY
CENTER, INC.
APPELLEES
OPINION
REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE: VANMETER AND WINE, JUDGES; SHAKE,1 SENIOR JUDGE.
1
Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
VANMETER, JUDGE: Mark D. Birdwhistell appeals from an order of the
Franklin Circuit Court denying his motion to dismiss claims filed against him by
Donna Bone, as Guardian for the Minor T.G.B.; Lisa Kay Labb, as Guardian for
the Minor S.A.L.; and Child Watch Children’s Advocacy Center, Inc. (collectively
referred to as “Child Watch”). For the following reasons, we reverse in part and
remand.
This action was brought by the parents of children on behalf of themselves,
their children, and a larger class of children who, as a result of being alleged
victims of child abuse and neglect, received services from the Kentucky Cabinet
for Health and Family Services (“Cabinet”) through the Cabinet’s designated
Children’s Advocacy Center (“CAC”), an agency that advocates on behalf of
children alleged to have been abused.
On June 7, 2006, the Cabinet entered into a contract with Child Watch
designating it as a CAC to receive funding. The contract was to expire on June 30,
2007. Before the contract expired, Governor Ernie Fletcher and Birdwhistell
promulgated an emergency administrative regulation on June 4, 2007, which later
became effective as 920 KAR2 2:040.3 The regulation addresses the standards for
designated CACs in Kentucky.
In January 2008, Child Watch filed suit against the Cabinet as well as
Birdwhistell, individually and in his official capacity as former Secretary of the
Cabinet, alleging wrongful termination of the contract. Specifically, Child Watch
2
Kentucky Administrative Regulations.
3
Originally promulgated as 920 KAR 2:040E.
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alleged that termination of the contract was accomplished by the promulgation of
the emergency administrative regulation, which Child Watch claims was “the
product of partisan political effort carried out in violation of the Kentucky
Constitution, statutes, and regulations.”
Birdwhistell filed a motion to dismiss the suit on the basis that he was
entitled to (1) absolute official immunity for claims against him in his official
capacity and (2) qualified official immunity for claims against him in his
individual capacity. The trial court denied his motion and this appeal followed.
On appeal, Birdwhistell argues the trial court erred by denying his motion to
dismiss claims against him in his official capacity since as head of a state agency,
he was entitled to absolute immunity for promulgating an administrative
regulation. We agree.
As an initial matter, “an order denying a substantial claim of absolute
immunity is immediately appealable even in the absence of a final judgment.”
Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). Thus,
this appeal is properly before us for review.
Turning to Birdwhistell’s claim of entitlement to absolute official immunity,
“[s]uch immunity derives from the doctrine of sovereign immunity, which holds
that the state, legislators, prosecutors, judges, and others doing the essential work
of the state enjoy an absolute immunity from suit.” Autry v. W. Kentucky Univ.,
219 S.W.3d 713, 717 (Ky. 2007). Further,
[g]overnmental immunity extends to state agencies
that perform governmental functions (i.e., act as an arm
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of the central state government) and are supported by
money from the state treasury. Yanero v. Davis, 65
S.W.3d 510 (Ky. 2001). However, unless created to
perform a governmental function, a state agency is not
entitled to governmental immunity. Kentucky Center for
the Arts Corp. v. Berns, 801 S.W.2d 327 (Ky. 1990). An
analysis of what an agency actually does is required to
determine its immunity status.
If a state agency is deemed to have governmental
immunity, its officers or employees have official
immunity when they are sued in their official or
representative capacity. The immunity that an agency
enjoys is extended to the official acts of its officers and
employees. However, when such officers or employees
are sued for negligent acts in their individual capacities,
they have qualified official immunity.
Qualified official immunity applies to public officers or
employees if their actions are discretionary (i.e.,
involving personal deliberation, decisions and judgment)
and are made in good faith and within the scope of their
authority or employment. This is intended to protect
governmental officers or employees from liability for
good faith judgment calls in a legally uncertain
environment. An act is not “discretionary” merely
because some judgment is used in deciding on the means
or method used. However, even if an act is discretionary,
there is no immunity if it violates constitutional,
statutory, or other clearly established rights, or if it is
done willfully or maliciously with intent to harm, or if it
is committed with a corrupt motive or in bad faith. The
burden is on the plaintiff to show that the public official
or employee was not acting in good faith. Yanero, 65
S.W.3d at 522-23.
If the negligent acts of public officers or employees are
ministerial, there is no immunity. An act is ministerial if
the duty is absolute, certain, and imperative, involving
mere execution of a specific act based on fixed and
designated facts. If ministerial acts are proper, then the
public officer or employee has official immunity without
qualification. Id. at 522. Any act done by a public officer
or employee who knows or should have known that his
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actions, even though official in nature, would violate
constitutional rights or who maliciously intends to cause
injury, has no immunity. Harlow v. Fitzgerald, 457 U.S.
800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Id. (emphasis added). See also Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010)
(qualified official immunity applies based on the act or function performed, rather
than the status or title of the officer or employee).
The Cabinet has been identified as “the primary state agency for
operating the public health, Medicaid, certificate of need and licensure, and mental
health and intellectual disability programs in the Commonwealth.” KRS4
194A.010(1). As such, the Cabinet’s function is “to improve the health of all
Kentuckians[.]” Id. The Cabinet is to carry out its function “through direct and
contract services for planning and through the state health plan and departmental
plans for program operations, for program monitoring and standard setting, and for
program evaluation and resource management.” Id. In addition, “the secretary [of
the Cabinet] may enter into any contracts and agreements . . . as may be deemed
necessary to carry out the general intent and purposes of the cabinet.” KRS
194A.025(3).
As an agency of state government, therefore, the Cabinet is entitled to
governmental immunity for performance of governmental functions. Birdwhistell,
as the former Secretary of the Cabinet, also enjoys absolute official immunity for
functions performed in his official or representative capacity. Accordingly, the
4
Kentucky Revised Statutes.
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trial court erred by denying Birdwhistell’s motion to dismiss claims against him in
his official capacity.
The order of the Franklin Circuit Court is reversed to the extent it
denied Birdwhistell’s motion to dismiss on grounds of absolute official immunity.
This case is hereby remanded with directions for the trial court to enter an order
granting Birdwhistell’s motion to dismiss claims against him in his official
capacity. The portion of the trial court’s order denying Birdwhistell’s motion to
dismiss claims against him in his individual capacity is undisturbed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian T. Judy
Cabinet for Health and
Family Services
Frankfort, Kentucky
No appellee brief filed.
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