ERIC MURRELL v. DEPARTMENT OF CORRECTIONS
Annotate this Case
Download PDF
RENDERED:
August 3, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000779-MR
ERIC MURRELL
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 00-CI-00156
v.
DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; COMBS AND KNOPF, JUDGES.
KNOPF, JUDGE.
Eric Murrell appeals from an order of the Franklin
Circuit Court that dismissed his action seeking a copy of a
section of the Department of Corrections Policies and Procedures
(CPP).
He had earlier received an opinion from the Office of the
Attorney General supporting the Corrections Department’s denial
of his request for the documents under the Kentucky Open Records
Act.1
Finding that the trial court properly dismissed Murrell’s
appeal as moot, we affirm.
1
Kentucky Revised Statutes (KRS)61.870 - 884.
In November 1999, Murrell requested a copy of the
Corrections Department’s policies and procedures for the award of
meritorious good time2 (CPP 15.3), for the years 1987, 1989, and
1991.3
The Corrections Department denied the request based on
KRS 197.025(2), which states that “the department shall not be
required to comply with a request for any record from any inmate
confined in a jail or any facility or any individual on active
supervision under the jurisdiction of the department, unless the
request is for a record which pertains to that individual.”
Pursuant to KRS 197.025(3), Murrell sought review of the denial
by the Attorney General’s Office.4
In January 2000, the Attorney
General issued an opinion indicating that the Corrections
Department properly denied Murrell’s request in reliance on KRS
197.025(2).5
In the opinion, the Attorney General referred to
and relied upon a prior open records opinion6 that approved
denial of a request by an inmate for prison work orders.
2
Pursuant to KRS 197.045(3), meritorious good time is
available to inmates for performing exceptionally meritorious
service or performing duties of outstanding importance in
connection with institutional operations and programs. An award
of meritorious good time is discretionary with the Commissioner
of the Corrections Department. See, e.g., Anderson v. Parker,
Ky. App., 964 S.W.2d 809 (1997).
3
Many of the facts discussed in this opinion are taken from
the parties’ briefs because the record on appeal does not contain
the documents on which the issues are based such as the original
open records request, the Corrections Department’s response, and
the Attorney General’s opinion.
4
See also KRS 61.880(2).
5
See Attorney General Open Records Decisions 00-ORD-2
(January 7, 2000)(unpublished opinion).
6
98-ORD-150 (September 9, 1998)(unpublished opinion).
-2-
On February 8, 2000, Murrell filed an action in circuit
court appealing the Attorney General’s opinion7 and seeking
access to the prior versions of CPP 15.3 under the Open Records
Act.
In his petition, Murrell claimed access and review of the
historical versions of CPP 15.3 were necessary to determine if he
was possibly eligible for an award of meritorious good time
during the earlier periods of his incarceration.
He also
challenged the Attorney General’s interpretation of KRS
197.025(2).
Murrell requested a finding that the Corrections
Department had violated the Open Records Act, injunctive relief,
and a monetary award of $25.00 for each day he was denied the
right to inspect the records.
On February 23, 2000, the
Corrections Department filed a motion to dismiss the action as
moot stating that while it did not concede to Murrell’s argument
on the applicability of KRS 197.025(2), the Department had
provided him with copies of the historical versions of CPP 15.3
and had provided these documents to each prison institution for
filing in the inmate legal aide office and the inmate library.8
In an order dated February 25, 2000, but entered on
February 28, 2000, the circuit court granted the motion and
summarily dismissed the action.
In a document entitled “Response
to Motion to Dismiss” dated February 27, 2000, and filed on March
1, 2000, Murrell asked the court to deny the motion to dismiss or
7
See KRS 197.025(3); 61.880(5); 61.882.
8
Attached to the motion were copies of the prior versions of
the prison policies on meritorious good time effective June 1974,
April 1985, June 1985, March 1987, March 1990, August 1990, June
1993, February 1994, June 1996, July 1998, and December 1998.
-3-
in the alternative to order the Attorney General to withdraw its
opinion because of the precedential effect of that opinion.
The
circuit court’s order did not address the issues which Murrell
raised in his response.9
On March 13, 2000, Murrell filed his
notice of appeal from the order dismissing the action.
On appeal, Murrell asserts that the Corrections
Department and the Attorney General erroneously concluded that he
was not entitled to the historical versions of CPP 15.3.
He
contends that they misconstrued KRS 197.025(2) to authorize
denial of his open records request.
He maintains that the
circuit court’s summary dismissal without addressing the merits
of the case constitutes a denial of access to the courts because
he was not allowed to prove that the Corrections Department
violated its own regulations.
Murrell’s argument involving denial of access to the
court’s is difficult to understand.
He was provided with the
documents he requested and has not been prevented from pursuing a
request for an award of meritorious good time for the past period
of his incarceration.
Should his request be denied, he can
challenge the decision through the courts.10
The Attorney
General is statutorily authorized to render opinions.
Indeed, he
9
It appears that the circuit court’s order granting the
motion to dismiss and Murrell’s response to the motion crossed in
the mail.
10
However, given the discretionary nature of entitlement to
meritorious good time, judicial review of decisions by prison
authorities in this area is extremely limited. See Anderson v.
Parker, Ky. App., 964 S.W.2d 809 (1997).
-4-
is required to do so for inmates.11
The opinion in this case in
no way inhibited Murrell’s access to the courts.
By providing
Murrell with the documents he requested, moreover, the
Corrections Department rendered his complaint moot because he
received the relief that he sought.
An action becomes moot when
there is “a change in circumstance in the underlying controversy
which vitiates the vitality of the action.”12
There no longer
was a case or controversy requiring the circuit court to resolve
the merits and the courts do not give advisory opinions.13
Thus,
Murrell’s complaint that he was denied access to the courts is
without merit.
Murrell’s main issue on appeal is his request that the
Attorney General be sanctioned and required to withdraw its
opinion on his open documents request.
Basing his argument on an
underlying assumption that the opinion was erroneous, Murrell
contends that the opinion has binding legal effect and could be
used to support the wrongful denial of prison documents to
inmates in the future.
Murrell is not entitled to the relief he seeks for
several reasons.
First, he misunderstands the legal effect of
the Attorney General’s opinion.
KRS 61.880(5)(b) states that
“[i]f an appeal is not filed within the thirty (30) day time
limit, the Attorney General’s decision shall have the force and
effect of law and shall be enforceable in the circuit court of
11
See KRS 197.025.
12
Commonwealth v. Hughes, Ky., 873 S.W.2d 828, 830 (1994).
13
Philpot v. Patton, Ky., 837 S.W.2d 491, 493 (1992).
-5-
the county where the public agency has its principal place of
business or the circuit court of the county where the public
record is maintained.”
As this statute indicates, it only
applies to unappealed opinions for purposes of resolving the
rights of the parties in a particular dispute.
While the
Attorney General may rely on prior opinions, as it did in this
case, an Attorney General’s opinion is not binding on the courts
when challenged on appeal.
KRS 61.882(3) explicitly provides for
de novo review of issues under the Open Records Act.
Application
of the Open Records Act is necessarily fact specific and must be
decided on a case-by-case basis.14
Although a court may utilize
Attorney General opinions as persuasive authority, they are not
binding on the court.15
Murrell exaggerates the potential effect
of the Attorney General’s unpublished opinion and has not
otherwise justified his claim that the opinion should be
withdrawn.16
In addition, because the Attorney General’s Office
was not made a party to the action17 in circuit court, it could
14
See Kentucky Bd. of Examiners of Psychologists v. CourierJournal and Louisville Times, Ky., 826 S.W.2d 324, 328
(1992)(stating the Open Records Act contemplates a case-specific
approach by providing for de novo judicial review of agency
action).
15
See, e.g., York v. Commonwealth, Ky. App., 815 S.W.2d 415,
417 (1991).
16
We note that the Corrections Department provided each
prison institution with the historical versions of CPP 15.3 for
access by all inmates.
17
KRS 61.880(3) provides that the Attorney General shall not
be named as a party in circuit court actions to enforce the Open
Records Act.
-6-
not have been made subject to an order requiring it to withdraw
its opinion.18
Murrell also asks this Court to remand the case to the
circuit court for an award of fees and costs under KRS 61.882(5).
As he notes, the circuit court did not address his request for
costs and monetary sanctions in its order of dismissal.
KRS
61.882 authorizes an award for costs, including reasonable
attorney’s fees, upon a finding by the court of a willful
violation of the Open Records Act.
It further allows an
additional award of $25.00 per day for each day a claimant was
denied the right to inspect a public record.
This additional
award is within the discretion of the circuit court.
Although he
sought an award of costs and monetary sanctions in his petition,
Murrell failed to request a written finding on this issue by the
circuit court.
Because Murrell did not bring the court’s failure
to address this issue to its attention by way of a written motion
under CR 52.02 or CR 59.05, he is deemed to have waived the issue
on appeal.19
For the foregoing reasons, we affirm the order of the
Franklin Circuit Court.
ALL CONCUR.
18
There also is some question whether a court has authority
to order the Attorney General to withdraw an opinion given the
separation of powers doctrine and the obligation of that office
to render opinions under the Open Records Act.
19
See Department of Corrections v. Courier-Journal and
Louisville Times, Ky. App., 914 S.W.2d 349, 352 (1996); CR 52.04.
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Eric Murrell - Pro Se
West Liberty, Kentucky
Tamela Biggs
Office of General Counsel
Frankfort, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
