SMITH (KEMBLE) VS. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, ET AL.

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RENDERED: JULY 10, 2020; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2018-CA-001000-MR KEMBLE SMITH v. APPELLANT APPEAL FROM MARSHALL CIRCUIT COURT HONORABLE JAMES T. JAMESON, JUDGE ACTION NO. 18-CI-00109 KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION AND WESTLAKE CHEMICAL APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES. ACREE, JUDGE: Kemble Smith appeals the Marshall Circuit Court’s June 6, 2018 order dismissing on jurisdictional grounds his complaint seeking review of a Kentucky Unemployment Insurance Commission (KUIC) decision. We affirm. FACTS AND PROCEDURE Smith sought judicial review of the KUIC’s denial of his claim for unemployment benefits. KUIC filed a motion to dismiss Smith’s complaint for failing to verify his complaint in accordance with Kentucky Revised Statutes (KRS) 341.450(1). Smith responded by stating the oversight was a “clerical error in Appellant’s counsel’s office in electronically filing the complaint.” The circuit court granted the motion to dismiss. Smith now appeals. STANDARD OF REVIEW Review of a circuit court’s dismissal on jurisdictional grounds of a complaint seeking review of the KUIC’s final order is a question of law. Kentucky Unemployment Ins. Comm’n v. Wilson, 528 S.W.3d 336, 339 (Ky. 2017). We “review questions of law de novo.” Manning v. Lewis, 400 S.W.3d 737, 740 (Ky. 2013) (citing Kentucky Pub. Serv. Comm’n v. Commonwealth ex rel. Conway, 324 S.W.3d 373, 376 (Ky. 2010) (citation omitted)). ANALYSIS Although the circuit court’s analysis, citation to authority, and reason for dismissing Smith’s complaint are worthy of adoption as our own, our Supreme Court has addressed this very issue in a single case which we quote and apply here. In Kentucky Unemployment Insurance Commission v. Wilson, supra, this “Court of Appeals . . . concluded that Appellee Norman Wilson had -2- substantially complied with the verification requirement of KRS 341.450(1) . . . citing the substantial compliance doctrine implicit in Shamrock Coal Co. v. Taylor, 697 S.W.2d 952 (Ky. App. 1985).” Wilson, 528 S.W.3d at 338. Our opinion was roundly reversed. As for the case we relied upon, the Supreme Court said, “Shamrock was wrongly decided and is hereby overruled.” Id. at 340. Explaining its rejection of a substantial compliance standard for initiating judicial review pursuant to KRS 341.450(1), the Supreme Court said: In Taylor [v. Kentucky Unemployment Ins. Comm’n, 382 S.W.3d 826 (Ky. 2012)], we reaffirmed the “firmly rooted concept of law in this state that the courts have no jurisdiction over an appeal from an administrative agency action unless every statutory precondition is satisfied.” 382 S.W.3d at 831. As a general rule, “[t]here is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required.” Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978) (citations omitted). Statutory preconditions for vesting courts with the authority to engage in judicial review cannot be satisfied by substantial compliance. See City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990) (“It is only [when defects are nonjurisdictional in nature] that a discussion of substantial compliance . . . is appropriate.”). Consequently, at least with respect to the jurisdictional requirements for invoking judicial review of an administrative agency ruling, we have no substantial compliance exception to a statute which grants the right to appeal. See Kentucky Unemployment Insurance Commission v. Carter, 689 S.W.2d 360, 361-362 (Ky. 1985). We also noted in Taylor a significant line of cases holding that the verification requirement of KRS 341.450(1) -3- requires strict compliance, and that the attorney’s signature alone on the petition could not be regarded as satisfying the statutory requirement for verification. We believe [Monyhan,[1] Pickhart,[2] Fisher,[3] and Carter,[4] relied upon by Fisher] accurately state the rule in the case before us, and thus we hold that a properly verified complaint is required to invoke circuit court jurisdiction under KRS 341.450(1), and, further, that a CR 11 signature by the claimant’s attorney is insufficient to comply with the verification requirements of the statute. 382 S.W.3d at 830. The Court of Appeals’ decision in Shamrock is plainly at odds with the principle of strict compliance. Id. at 339 (original footnotes omitted; emphasis added). Although the circumstances of the unemployment claimant’s failure to strictly comply with KRS 341.450(1) in Wilson are slightly different, we have no doubt that the opinion in that case requires the same outcome in this case. An opinion in Smith’s favor would justly invite a repeat of the rebuke that our opinion is “plainly at odds with the principle of strict compliance.” Id. 1 Monyhan v. Kentucky Unemployment Insurance Commission, 709 S.W.2d 837 (Ky. App. 1986). 2 Pickhart v. U.S. Post Office, 664 S.W.2d 939 (Ky. App. 1983). 3 Fisher v. Kentucky Unemployment Insurance Commission, 880 S.W.2d 891 (Ky. App. 1994). 4 Kentucky Unemployment Insurance Commission v. Carter, 689 S.W.2d 360 (Ky. 1985). -4- CONCLUSION The June 6, 2018 order of the Marshall Circuit Court dismissing Smith’s appeal of the KUIC’s final order is affirmed. ALL CONCUR. BRIEFS FOR APPELLANT: Richard L. Walter Bradley A. Sears Paducah, Kentucky BRIEF FOR APPELLEE KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION: Joshua R. Hurley Frankfort, Kentucky -5-

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