MKJ VS. BOURBON COUNTY BOARD OF EDUCATIONAnnotate this Case
RENDERED: AUGUST 29, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
ORDERED NOT PUBLISHED BY SUPREME COURT:
NOVEMBER 18, 2009
(FILE NO. 2008-SC-000849-D)
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM BOURBON CIRCUIT COURT
HONORABLE ROBERT G. JOHNSON, JUDGE
ACTION NO. 02-CI-00236
BOURBON COUNTY BOARD OF
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM, SENIOR
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
BUCKINGHAM, SENIOR JUDGE: M.K.J. was expelled as a student from
Bourbon County High School by the Bourbon County Board of Education in May
2002. In August 2002 he filed an action in the Bourbon Circuit Court seeking to
have the expulsion set aside and seeking damages for violation of 42 U.S.C. §
1983, 20 U.S.C. § 1402 et seq., 707 KAR 1, and Article 2 of the Kentucky
Constitution.2 When the circuit court denied M.K.J.’s motion to have the
expulsion set aside, he appealed to this court. A panel of this court rendered an
opinion that determined the Board’s action was arbitrary, reversed the circuit
court’s decision, and remanded the case to that court with directions to remand the
matter to the Board to vacate its decision expelling M.K.J. See M.K.J. v. Bourbon
County Board of Education, 2004 WL 1948461 (Ky. App. Sept. 3, 2004) (2003CA-000352-MR).
Following this court’s decision, M.K.J. sought to pursue the
remaining causes of action in the circuit court. The circuit court denied him that
right, holding that this court had limited its jurisdiction in the case to remanding
the matter to the Bourbon County Board of Education. This appeal by M.K.J.
followed. Concluding that the circuit court erred, we reverse and remand.
The incident that led to this litigation occurred while M.K.J. was a
student at Bourbon County High School. On May 16, 2002, the school received a
bomb threat, leading school administrators to send for explosive-detection dogs.
One of the dogs brought by the canine handlers was trained to detect contraband
The action was filed on M.K.J.’s behalf by his parents.
substances. This dog indicated that such substances might be present in M.K.J.’s
car, which was parked in the school parking lot.3
The canine handler informed the school principal, who called M.K.J.
from class. M.K.J. and the handler went to the car, while the principal remained in
the building. After M.K.J. consented to a search of the car, the handler found
marijuana and prescription drugs. The school’s special law enforcement officer
and an assistant principal arrived at the scene after the contraband had been found.
M.K.J. was suspended from school that day, and a letter was sent to
his parents notifying them that the Board would hold an expulsion hearing on May
23, 2002. After evidence and testimony were presented at the hearing, the Board
voted to expel M.K.J.
On August 21, 2002, M.K.J. filed a civil complaint in the Bourbon
Circuit Court. The complaint contained the following counts: that the Board had
violated his due process rights under 42 U.S.C. § 1983, that the Board had failed to
comply with 20 U.S.C. § 1402 et seq. and 707 KAR 1, and that the actions of the
Board in expelling M.K.J. were arbitrary because the search of his vehicle violated
the school’s vehicle search policy and because the expulsion hearing violated
Kentucky’s Open Meetings Act. M.K.J. requested the court to enter an injunction
prohibiting the Board from denying him attendance at Bourbon County High
School, to find that the Board had violated his rights and that he had suffered harm,
This dog was not one of the explosive-detection dogs. Rather, she was a dog that the handler
had released for a break from her kennel because she had been confined during the bomb search.
to grant him a jury trial, and to award him any and all relief to which he might be
M.J.K. also filed a motion to set aside his expulsion. The court found
that the motion was actually a de facto appeal of the Board’s actions regarding
him. The court reviewed the actions under the standard set forth in American
Beauty Homes Corporation v. Louisville and Jefferson County Planning and
Zoning Commission, 379 S.W.2d 450 (Ky. 1964), and held that the actions of the
Board were not arbitrary. Thus, the court denied M.K.J.’s motion to set aside his
expulsion. The court’s order, which contained finality language, made no mention
of M.K.J.’s remaining claims for damages.
M.K.J. appealed to this court from the circuit court’s order. A panel
of this court rendered an opinion on September 3, 2004, in which it held that the
marijuana and drugs were found in violation of a Board policy that mandates the
school principal or a designee of the principal must be present when student
searches are conducted. This court held that the Board’s decision to expel M.K.J.
was arbitrary because it was based solely upon the incompetent evidence seized in
the improper search. In reversing the circuit court’s decision, this court’s opinion
further stated that “[o]n remand, the circuit court is directed to remand this matter
to the Bourbon County Board of Education to vacate its decision expelling
appellant.” No mention was made of the remaining causes of action in M.K.J.’s
Thereafter, based on this court’s determination that the Board’s action
in expelling M.K.J. was arbitrary, M.K.J. filed a summary judgment motion on his
remaining claims on the issue of the Board’s liability for his wrongful expulsion.
He also requested the circuit court to schedule a hearing on damages..
The Board moved the court to dismiss M.K.J.’s remaining causes of
action. On January 16, 2007, the circuit court issued a final judgment stating in
pertinent part as follows:
The Kentucky Court of Appeals has determined this
Court’s jurisdiction in this matter and has limited it to
one final act, that being remanding this matter to the
Bourbon County Board of Education to vacate its
decision expelling Plaintiff. All other matters in this case
at this point are outside of the scope of this Court’s
jurisdiction, and therefore, authority. Pieck v. Carran,
289 Ky. 110, 157 S.W.2d 744 (1941).
This appeal by M.K.J. followed.
Before addressing M.K.J.’s arguments, we must first address an issue
raised by the Board. The Board argues that neither the circuit court nor this court
ever had subject matter jurisdiction over this case because M.K.J.’s appeal to the
circuit court was untimely under Kentucky Revised Statutes (KRS) 13B.140(1).4
Thus, the Board contends that both the circuit court’s first order and this court’s
2004 opinion are void.
The Board did not raise this issue when the case first came before the circuit court. Rather, it
raised the issue for the first time in response to M.K.J.’s efforts to prosecute his claims in the
circuit court following remand from this court. The circuit court did not address this argument
by the Board. Rather, it refused to entertain M.K.J.’s claims based on its claim that it lacked
jurisdiction due to this court’s mandate in its opinion.
KRS 158.150 governs the suspension or expulsion of pupils. It states
in pertinent part:
(6) The superintendent, principal, assistant principal, or
head teacher of any school may suspend a pupil but shall
report the action in writing immediately to the
superintendent and to the parent, guardian, or other
person having legal custody or control of the pupil. The
board of education of any school district may expel any
pupil for misconduct as defined in subsection (1) of this
section, but the action shall not be taken until the parent,
guardian, or other person having legal custody or control
of the pupil has had an opportunity to have a hearing
before the board. The decision of the board shall be final.
KRS 158.150(6). The statute does not provide for an appellate process.
The Board contends that it is an agency of the state government.
Because there is no specific statutory authorization for an appeal of a student’s
expulsion, the Board contends that KRS 13B.140(1), which relates to appeals from
administrative agencies, is applicable. That statute provides in part that:
All final orders of an agency shall be subject to judicial
review in accordance with the provisions of this chapter.
A party shall institute an appeal by filing a petition in the
Circuit Court of venue, as provided in the agency’s
enabling statutes, within thirty (30) days after the final
order of the agency is mailed or delivered by personal
KRS 13B.140(1) requires the order of the agency to be mailed or
delivered by personal service and for an appeal of such an order to be filed within
30 days thereafter. M.K.J. acknowledges that the Board complied with the statute
and that he did not appeal the expulsion within 30 days as required by the statute.
Rather, M.K.J. maintains that the Board is not an agency subject to the provisions
of KRS Chapter 13B and that his circuit court action was not time-barred as
asserted by the Board. In support of this argument, M.K.J.’s counsel referred in his
oral argument before this court to the definition of “administrative agency” and
“agency” in KRS 13B.010(1).
It is not necessary for us to resolve this particular issue because even
if the provisions of KRS Chapter 13B were applicable, the Board waived any
jurisdictional defect by not objecting until after the circuit court and this court
decided the issues.
“Jurisdiction is a term too often used in a loose fashion.” Milby v.
Wright, 952 S.W.2d 202, 205 (Ky. 1997).5 Kentucky courts have recognized three
separate categories of “jurisdiction”: (1) personal jurisdiction involving authority
over specific persons; (2) subject-matter jurisdiction involving authority over the
nature of a case and the general type of controversy; and (3) jurisdiction over a
particular case involving authority to decide a specific case. See Nordike v.
Nordike, 231 S.W.3d 733, 737-38 (Ky. 2007). “‘Subject-matter jurisdiction cannot
be born of waiver, consent or estoppel,’ but it is absent ‘only where the court has
not been given any power to do anything at all in a case.’” Id. at 738, quoting
Duncan v. O’Nan, 451 S.W.2d 626, 631 (Ky. 1970).
Jurisdiction over a particular case, however, “refers to the authority
and power of the court to decide a specific case, rather than the class of cases over
Kentucky cases dealing with jurisdiction and waiving jurisdiction sometimes seem confusing
and appear inconsistent.
which the court has subject-matter jurisdiction.” Milby, 952 S.W.2d at 205.
Particular-case jurisdiction “often turns solely on proof of certain compliance with
statutory requirements and so-called jurisdictional facts, such as that an action was
begun before a limitations period expires.” Nordike, 231 S.W.3d at 738. Lack of
particular-case jurisdiction merely renders a judgment voidable rather than void.
See Dix v. Dix, 310 Ky. 818, 822, 222 S.W.2d 839, 841 (1949). See also In re J.J.,
855 N.E.2d 851, 854 (Ohio 2006); Maryland Board. Of Nursing v. Nechay, 701
A.2d 405, 410 (Md. 1997).
In Collins v. Duff, 283 S.W.2d 179 (Ky. 1955), the court stated,
“where a court has general jurisdiction of the subject matter, a lack of jurisdiction
of the particular case, as dependent upon the existence of particular facts, may be
waived.” Id. at 182. Further, in Commonwealth v. Griffin, 942 S.W.2d 289 (Ky.
1997), the court held that the defendant could waive the statutory five-year limit on
duration of probationary supervision because it involved particular-case
jurisdiction rather than subject-matter jurisdiction. Id. at 291.
Here, the circuit court had subject-matter jurisdiction over appeals
from decisions of administrative agencies pursuant to KRS 13B.140(1).
Assuming, as argued by the Board, that the Board was an administrative agency as
defined in KRS 13B.010(1) and that the circuit court did not have particular-case
jurisdiction because M.K.J. did not timely file his circuit court action, the Board
waived the 30-day requirement of KRS13B.140 by not objecting until after both
the circuit court and this court had decided the issues of the case. Therefore, we
reject the Board’s argument that the circuit court’s original order and this court’s
prior opinion are void.
Turning to M.K.J.’s arguments, he argues that the circuit court’s
reliance on Pieck v. Carran was erroneous and that he has viable claims that
remain to be litigated. He argues that because this court held that the actions of the
Board were arbitrary, he is entitled to pursue his claim for damages against the
Board for its wrongful conduct. He contends that otherwise he will be left without
a remedy. On the other hand, the Board contends that M.K.J.’s claims were
effectively dismissed as moot by the circuit court when it initially upheld the
Board’s action in expelling M.K.J. and that “it is the law of the case that those
claims are now gone” since this court’s panel that decided the case made no
mention of the claims when it rendered its opinion on September 3, 2004.
The initial circuit court order that denied M.K.J.’s motion to set aside
his expulsion made no mention of M.K.J.’s due process claims. Further, the order
contained finality language. The parties treated the order as effectively dismissing
the due process claims, whether it did so or not. In fact, when the case was before
a panel of this court in the first appeal, one of the issues was whether the circuit
court had erred by dismissing the claims without allowing M.K.J. the opportunity
In this Court’s 2004 opinion, the panel made no mention of the claims
other than to state that it would not reach the issue of “whether the circuit court
erred by denying appellant an opportunity to conduct discovery” on the claims
because it had found that the Board’s decision to expel M.K.J. was arbitrary and
had reversed the circuit court on that basis.
In Hutson v. Commonwealth, 215 S.W.3d 708 (Ky.App.
2006), this court stated
The scope of a lower court’s authority on remand of a
case is not measured in terms of its jurisdiction, but by
the direction or discretion contained in the appellate
court’s mandate. An appellate court might direct a trial
court, such as by ordering a new trial or the dismissal of
charges. With such a mandate, the trial court’s authority
is only broad enough to carry out that specific direction.
Alternatively, and as is very often the case when the
appellate court reverses a trial court, it simply grants the
trial court the discretion to conduct further proceedings
not inconsistent with the opinion. In such cases,
including Hutson I, the general principle is stated as
The trial court may take such action, not
inconsistent with the decision of the
appellate court, as in its judgment law and
justice require, where the case has been
remanded generally without directions, or
for further proceedings, or for further
proceedings in accordance, or not
inconsistent, with the opinion.
5 C.J.S. Appeal and Error § 978 at 481-83 (1993) citing
Pieck v. Carran, 289 Ky. 110, 157 S.W.2d 744 (1941).
Id. at 714.
We conclude that although this court made no specific mention of
M.K.J.’s due process claims in its opinion, it clearly did not affirm any dismissal of
those claims by the circuit court. In fact, this court plainly stated that it found it
unnecessary to address M.K.J.’s appeal as it related to those claims because it had
determined that the expulsion was arbitrary. The implication that the claims were
alive is clear.
The Board argues that the law of the case doctrine is applicable. To
the extent the law of the case doctrine may otherwise be applicable, the exception
to the rule should be applied here. See Wilson v. Commonwealth, 975 S.W.2d 901,
904 (Ky. 1998). In Gossett v. Commonwealth, 441 S.W.2d 117 (Ky. 1969), the
appellate court stated as follows:
Where the law of the case rule is applicable, it has
sufficient flexibility to permit the appellate court to admit
and correct an error made in the previous decision where
substantial injustice might otherwise result and the
former decision is clearly and palpably erroneous.
Id. at 118. See also White v. Commonwealth, 360 S.W.2d 198, 202 (Ky. 1962).
Under these circumstances, we believe the claims are viable and that
the circuit court erred in not allowing M.K.J. to proceed in the prosecution of the
claims. To the extent this Court’s prior opinion may have been deficient in that it
failed to reverse the circuit court’s dismissal of the due process claims, we apply
the aforementioned exception to the law of the case doctrine.
Therefore, the order of the Bourbon Circuit Court, wherein the court
held it had no jurisdiction to act on M.K.J.’s remaining claims after remand from
this court, is reversed, and this case is remanded for the purpose of allowing M.K.J.
to pursue those claims.
BRIEF AND ORAL ARGUMENT
Edward E. Dove
BRIEF FOR APPELLEE:
Sam P. Burchett
NO ORAL ARGUMENT GIVEN