COMMONWEALTH OF KENTUCKY DEPARTMENT OF AGRICULTURE V. DONALD R. VINSON; CHARLES ANDERSON; AND ROBERT S. PETERS, SECRETARY OF THE PERSONNEL CABINET
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RENDERED: OCTOBER 26,200O
TO BE PUBLISHED
1999-SC-0570-DG
COMMONWEALTH OF KENTUCKY
DEPARTMENT OF AGRICULTURE
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
97-CA-1877-MR
FRANKLIN CIRCUIT COURT NO. 93-Cl-886
DONALD R. VINSON; CHARLES ANDERSON; AND
ROBERT S. PETERS, SECRETARY OF THE
PERSONNEL CABINET
APPELLEES
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING IN PART/ REVERSING IN PART
AND REMANDING
This appeal is from an opinion of the Court of Appeals which affirmed a judgment
of the circuit court awarding a total of $1 million in punitive damages and a permanent
injunction against the Department of Agriculture for violations of the Kentucky
Whistleblower Act, KRS 61 .I01 et seq.
The questions presented are whether the Whistleblower Act is unconstitutionally
vague; whether the plaintiffs are entitled to punitive damages in the absence of actual
compensatory damages; whether it was error to grant a jury trial; and whether it was
error to apply the amended version of the Whistleblower Act.
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Vinson and Anderson worked as pesticide inspector supervisors under the
Department of Agriculture and were responsible for reviewing every violation of any
pesticide company in the Commonwealth. In May of 1993, their division was
reorganized so as to demote Vinson and Anderson from pesticide inspector supervisors
back to pesticide inspectors without any salary reduction or loss of fringe benefits. In
June of 1993, Vinson and Anderson filed this action seeking injunctive relief and
punitive damages pursuant to KRS 61 .lOl, et seq., the Kentucky Whistleblower Act. At
that time, the statute required a showing “by clear and convincing evidence,” a reporting
of actual or suspected agency violations of the law, triggering the alleged state
employer reprisal. Following an extensive pretrial proceeding, a trial was conducted
before the circuit judge, and a jury was impaneled. The Court of Appeals labels this jury
as an advisory jury. The trial judge adopted the verdict of the jury as his own and
entered a permanent injunction which required the Agriculture Department to void its
reorganization in regard to Vinson and Anderson; to reestablish the supervisor positions
which had been eliminated and to return Vinson and Anderson to their former positions.
The Court of Appeals agreed with the Department of Agriculture that Vinson and
Anderson were not entitled to a trial by jury, but found no error by declaring that the jury
had served in an advisory capacity only. The judgment of the circuit court was affirmed
in all other respects. Despite the absence of any compensatory damages, the punitive
damages were permitted. This Court accepted discretionary review.
I. Statute Constitutional
KRS 61 .I 02(l) prohibits activity that is a direct reprisal, as well as any attempts
by an employer to
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directly or indirectly use, or threaten to use, any official
authority or influence, in any manner whatsoever, which
tends to discourage, restrain, depress, dissuade, deter,
prevent, interfere with, coerce, or discriminate against any
employee who in good faith reports, discloses, divulges, or
otherwise brings to the attention of. . . .
Clearly, as argued by Vinson and Anderson, the statute recognizes the overt
retaliatory act of reprisal as well as the subtle exercise of official authority or influence in
the relationship between state employee and state government. The Act is not written
in such broad sweeping terms as to make it constitutionally vague. A person of ordinary
intelligence can understand the intended meaning of the language as well as its
appropriate application.
The acts which are prohibited are described and easily understood as actions
which are in response to an employee who in good faith reports or otherwise brings to
the attention of an appropriate agency either violations of the law, suspected
mismanagement, waste. fraud, abuse of authority or a substantial or specific danger to
public safety or health. The reprisal or other retaliation occurs in response to the good
faith reporting and such retaliation is done to either punish, silence or stifle a state
employee. There is no Inference of limiting routine contact with an employee except if it
is done with an ulterior mo!jve to punish the employee for reporting the proscribed
conduct. The arguments of the Agriculture Department are without merit. This statute
does not fail to provide persons with adequate notice as to what conduct is prohibited,
nor does it require a person of common intelligence to guess as to its meaning. Cf.
Broadrick v. Oklahoma. 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) and State
Bd. for Elementary and Secondary Education v. Howard, Ky., 834 S.W.2d 657 (1992).
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Bovkins v. Housina Authoritv of Louisville, Ky., 842 S.W.2d 527 (1992) held that
KRS 61 .I 02 was designed to protect employees from reprisals for disclosures of
violations of the law. In Howard, supra, we reviewed a statute similar to the one upheld
in Oklahoma in the Broadrick case, and stated that the “test has been expressed as
whether a person disposed to obey the law could determine with reasonable certainty
whether contemplated conduct would amount to a violation.” Our court determined that
other than an excision of the word “activities,” KRS 161 .I64 was constitutional. We
agree with Vinson and Anderson that a more narrow reading of the statute is not
required with the Whistleblower Act because there is no fundamental constitutional right
to retaliate against a state employee. Generally an Act shall be held valid unless it
clearly offends the limitations of the constitution. Steohens v. State Farm Mutual
Automobile Insurance Co., Ky., 894 S.W.2d 624 (1995).
The legislature has wide latitude and prerogative. With this
also comes the presumption of validity. Those attacking the
rationality of the legislative classification have the burden to
negative every conceivable basis which might support it.
Roberts v. Mooneyhan, Ky. App., 902 S.W.2d 842 (1995). (Internal citations omitted.)
We find that the Department of Agriculture has not claimed that it suffered any
injustice or confusion, but only that the statute might be subject to other interpretations.
“The one who questions the validity of an Act bears the burden to sustain such
contention. Steohens, supra. The same arguments were presented in Wichita Countv
v. Hart, 892 S.W.2d 912 (Tex.App., Austin 1994) that the Texas statute was
unconstitutional because it denied due process and was void for vagueness. The Texas
Court found that it was not void for vagueness using similar legal authority found in
Kentucky decisions. This Court has confirmed the application of the criminal
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enforcement provisions of the Whistleblower Act in Woodward v. Commonwealth, Ky.,
984 S.W.2d 477 (1999).
Although the term “personnel action” is not defined by the statute, we agree with
the Court of Appeals that the breadth of the statute is limited by the exclusions
contained in KRS 61 .I 02(3), which clearly delineate the duty of an employee to behave
responsibly and honestly in employee relations. We agree with the Court of Appeals
that in examining the text of the legislation in its entirety and the manner in which it was
construed by the trial judge, we cannot conclude that the Act is so vague as to be
rendered void. KRS 61 .I02 is neither void nor vague and, consequently, it is
constitutional. It does not violate the due process requirements under the state and
federal constitutions.
II. Punitive Damages
KRS 61 .I 03(2) provides that employees alleging a violation of KRS 61.102(l) or
(2) may bring a civil action for appropriate injunctive relief or punitive damages or both.
KRS 61.990(4) states that the Court “shall order, as it considers appropriate,
reinstatement of the employee, the payment of back wages, full reinstatement of fringe
benefits and seniority rights, exemplary or punitive damages, or any combination
thereof.” It is clear that the General Assembly intended that punitive damages might be
awarded in addition to equitable relief or separately.
The Department of Agriculture argues that Vinson and Anderson were not
entitled to punitive damages in the absence of actual compensatory damages. They
contend that the punitive damages provision of the Act should be interpreted in harmony
with the Kentucky common law of punitive damages. They assert that the legislature
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did not intend to change the common law because the statute contains no language
expressly declaring such a change.
The undisputed evidence demonstrates that Vinson and Anderson did not suffer
a loss of wages or fringe benefits. The Department of Agriculture maintains that the trial
judge erred in instructing the jury on punitive damages in the absence of compensatory
damages. We disagree. In support of its argument, they cite 24 cases from other
jurisdictions as well as Esteo v. Werner, Ky., 780 S.W.2d 604 (1989); Karst-Robbins
Coal Co.. Inc. v. Arch of Kentuckv. Inc., Ky.App., 964 S.W.2d 419 (1997) and Lawrence
v. Risen, Ky.App., 598 S.W.2d 474 (1980). Estep, supra, and Karst Robbins,
supra,
relied on the earlier case of Risen. suora, which in turn cited Louisville & N.R. Co. v.
Ritchell, 148 Ky. 701, 147 S.W. 411 (1912).
Ritchell, suora; states in part that a verdict for punitive damages only will not be
set aside because the jury failed to return a verdict for compensatory damages. Where
the plaintiff has suffered an injury for which compensatory damages, though nominal in
amount may be awarded, the jury may in a proper case, award punitive damages as
well. The Ritchell court stated as follows:
It is true that there are respectable authorities which appear
to hold that punitive damages cannot be awarded when the
actual injury is merely nominal. In our opinion, however, this
view is not correct, and does not agree with a great weight of
authority. The correct rule, we think, is that if a right of
action exists; that is, if the plaintiff has suffered an injury for
which compensatory damages might be awarded although
nominal in amount, he may in a proper case recover punitive
damages....[T]he fact that the jury returned a verdict for
punitive damages only, furnishes no just reason why the
verdict should not be allowed to stand, since, under the rule
in force in this State, punitive damages, when allowed, are
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given as compensation to the plaintiff and not solely as
punishment of the defendant.
Ritchell. (Internal citations omitted.) It is clear that Kentucky follows the rule that it is the
invasion of a right which entitles a person to legal compensation.
We are also persuaded by the reasoning of Nappe v. Anschelewitz, 477 A.2d
1224 (N.J. 1984) that compensatory damages are not an essential element of an
intentional tort committed willfully and without justification. The mere fact that no
compensatory damages were awarded to Vinson or Anderson does not mean that they
did not have compensable injuries. The fact that there is not a quantifiable monetary
damage awarded for lost pay does not mean that injury did not occur.
The trend throughout this nation is to allow recovery for punitive damages in an
equitable action. See Black v. Gardner, 320 N.W.2d 153, (S.D. 1982). The absence of
a showing of actual damages need not bar an award of punitive damages. Villaae of
Peck v. Denison, 450 P.2d 310 (Idaho 1969); See also Nash v. Craiaco. Inc., 585 P.2d
775 (Utah 1978). We agree.
Here, the circuit court awarded Vinson and Anderson equitable relief, including
monetary judgment for their costs and expenses after he determined that there had
been a violation of the Whistleblower Act and the plaintiffs had been injured. It has
been held that even without express statutory authority to award punitive damages,
equitable damages clearly satisfy any requirement of damages. Gill v. Manuel, 488
F.2d 799 (9th Cir. 1973). Even in those jurisdictions where it has been held that the
award of compensatory damages is generally a requisite to punitive damages, the law is
that “the granting of affirmative equitable relief will support an award of punitive
damages.” Indiana and Michiaan Electric Co. v. Harlan, 504 N.E.2d 301, (Ind.App. 1st
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District 1987). The express language of KRS 61 .I 03(2) states that an employee may
bring a civil action for injunctive relief or punitive damages. KRS 61.990(4) allows the
court to award separate categories of damages, including punitive damages or any
combination thereof. We reject the argument that these statutes simply list punitive
damages as one of several remedies potentially available to a successful litigant. Here
there is a factual basis for a possible award of actual compensatory damages although
not given in this
case. The common law of Kentucky does not provide a basis for
defeating the judgment in question. The Whistleblower Statute is sufficiently explicit in
regard to punitive damages. The authorities of Ream v. Dept. of Revenue, Ky., 236
S.W.2d 462 (1951) and Cincinnati. N.O. & T.P. R. Co. v. Wilson’s Adm’r, 161 Ky. 640,
171 S.W. 430 (1914) are not applicable. The punitive damages provision of the
Whistleblower Act is in harmony with the Kentucky common law as to punitive
damages.
III. Jury trial
The trial judge did not commit error by impaneling a jury for this case. Objection
to the jury trial was raised by the Department of Agriculture and at a pretrial conference
on February 20, 1997, the trial judge stated that the jury would be used to find factual
allegations. “Now, when it comes down to, assuming that Mr. Vinson and Mr. Anderson
prevail, in terms of fashioning a remedy, there are various equitable remedies and that
would be my job.” Later, on March 4, 1997, at another pretrial conference, the trial
judge stated that punitive damages is something that a jury would be consulted on.
Vinson and Anderson had been seeking a jury trial but the Department of Agriculture
objected.
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The findings of fact set out that the jury was impaneled to hear factual allegations
and that the jury would render a verdict on the issue of punitive damages. All other
issues were reserved for a final determination by the trial judge. The trial judge adopted
the verdict of the jury and affirmed the findings of the jury as his own.
KRS 61.102
represents a statutorily created cause of action and did not expressly provide for or
deny the right to trial by jury. Agriculture argues that there is no entitlement to a jury
trial, citing a number of Kentucky cases. The Court of Appeals agreed with this position
but held that there was no error because the jury had served only in an advisory
capacity. Agriculture argues that the record does not support the determination by the
Court of Appeals that the jury was only advisory or that it consented to such an
arrangement. Agriculture contends that the parties must be advised prior to trial that a
jury will be advisory citing CR 39.03.
It is our view that the Department of Agriculture received a fair trial. The error, if
any, committed by the trial judge was harmless and nonprejudicial. The trial judge
adopted the findings of the jury as his own and there were a variety of post-trial motions
to have the judgments set aside, all of which the trial judge denied. The trial judge did
not take this case away from the jury, but he allowed both sides to present their proof,
and to argue the case fully.
Here, the jury was properly instructed. During the pretrial process the trial judge
stated that the jury would be consulted on the issue of damages but that he would
ultimately decide the case.
The question of impaneling a jury has been considered by this Court in Mevers v.
Chapman Printina Co.. inc., Ky. 840 S.W. 2d 814 (1992) where claims were raised
pursuant to KRS 344.450. The statute did not expressly provide for a jury trial, but this
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Court held that the Kentucky Constitution, Section Seven, preserved the ancient mode
of trial by jury, and that the constitution guarantees a trial by jury in cases of this
character. We held that a cause of action under the Kentucky Civil Rights Act is a
damages suit like any other and that once a cause of action for damages to be tried in
the courts of this Commonwealth has been created by statute, a further provision
providing that a party shall have a right to trial by jury is surplusage.
In Anzaldua v. Band, 578 N.W.2d 306 (Mich. 1998) the Michigan Supreme Court
determined that the plaintiff was entitled to a trial by jury in interpreting a Michigan
Whistleblower Statute. The question there was whether the silence of the legislature in
providing a trial by jury was an inference that the legislature did not intend for jury trials
in such cases. In that case, the defendants argued that the language of the Michigan
statute that “a court” rather than a jury would make the award was dispositive. Band,
supra, held that the right to trial by jury under the Whistleblower’s Protection Act
depends on the nature of the claim made and the relief sought. “Where 1) an action by
its nature is not jury barred, 2) the claim is for money damages, 3) the legislature
provided for it to be brought in circuit court, and 4) the legislature did not deny the right
to a trial by jury, the plaintiff properly may demand a jury trial.” The Michigan Supreme
Court distinguished Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 118
S.Ct. 1279, 140 L.Ed.2d 438 (1998). Columbia Pictures Television, supra, held that a
jury trial can be had in a copyright damage case even when the claims, the rights and
remedies are created by statute. Although this case is based on the 7th amendment to
the United States Constitution, it accords well with the reasoning we apply here.
See also Frizzell v. Southwest Motor Freight, 154 F.3d 641 (6th Cir. 1998) in
which the Sixth Circuit Court of Appeals held that the Family Medical Leave Act permits
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a right to jury trial even though it does not expressly provide for such a right. The major
focus to be made when determining whether a right to jury trial exists is the nature of
the relief sought. Cf. Hildebrand v. Bd. of Trustees of Michiaan State University, 607
F.2d 705 (1979).
We find Band, Southwest Motor Freiaht, supra, and Bd. of Trustees of Michiaan
I n supra, to be c value inereaching our conclusion. u
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and Anderson sought damages and were awarded monetary sums in addition to
reinstatement and restoration of benefits. Under all the circumstances, they were
entitled to a trial by jury. It was not prejudicial error for the trial judge to consider the
jury impaneled as an advisory jury when he adopted the findings of that jury as his own.
IV. 1993 Amendment not applicable.
The 1993 amendments to KRS 61 .I 02 were enacted by the General Assembly in
a 1993 first extraordinary session and signed into law by the Governor on February 18,
1993. The Department of Agriculture reorganized the division of pesticides so as to
eliminate the supervisory positions of Vinson and Anderson effective May 16, 1993. On
June 18, 1993, Vinson and Anderson filed suit in Franklin Circuit Court alleging violation
of the Whistleblower Statute. The case was not tried until March 1997. The effective
date of the amendment to KRS 61.103(3)
was September 16, 1993.
Kentucky law prohibits the amended version of a statute from being applied
retroactively to events which occurred prior to the effective date of the amendment
unless the amendment expressly provides for retroactive application. KRS 446.080(3).
Kentuckv Industrial Utilitv Customers, Inc. v. Kentuckv Utilities Combanv, Ky., 983
S.W.2d
493 (1998). This is a very fundamental principle of statutory construction in
Kentucky. The courts have consistently upheld this admonition and have declared there
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is a strong presumption that statutes operate prospectively and that retroactive
application of statutes will be approved only if it is absolutely certain the legislature
intended such a result. This is particularly true when the legislation is substantive and
not remedial, and new rights and new duties are created. We choose to cite only two of
the many cases that confirm that principle. They are Gould v. O’Bannon, Ky., 770
S.W.2d 220 (1989) and Hudson v. Commonwealth, Ky., 597 S.W.2d 610 (1980).
Amendments which change and redefine the out-of-court rights, obligations and
duties of persons in their transactions with others are considered to be changes in
substantive law and come within the rule that statutory amendments cannot be applied
retroactively to events which occurred prior to the effective date of the amendment.
Benson’s Inc. v. Fields, Ky., 941 S.W.2d 473 (1997). Those amendments which apply to
the in-court procedures and remedies which are used in handling pending litigation,
even if the litigation results from events which occurred prior to the effective date of the
amendment, do not come within the rule prohibiting retroactive application. Peabodv
Coal Co. v. Gossett, Ky., 819 S.W.2d 33 (1991). This Court has held it improper to
apply statutory amendments in a situation where the amendment changed the
substantive rights and duties of litigants regarding those events which had occurred
prior to the effective date of the amendment. See ea. Kentucky Utilities Co., supra;
O’Bannon, supra: Fields. supra; leeco. Inc. v. Crabtree, Ky., 966 S. W.2d 951 (1998).
The amendment to KRS 61 .I 03 changed the substantive rights of employees
and the obligations of employers. The amendment changed the causation and weight
of evidence components as to what an employee is required to prove successfully to
support a claim under the Act. The amendment also required a new burden of proof
from the employer in order to successfully defend a claim under the law.
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The changes in causation and weight of evidence were changes in substantive
law. Under the prior version of the statute, an employee had to prove that the report or
threat to report a suspected violation of the law was a direct cause of the reprisal by the
employer. This had to be proven by clear and convincing evidence. Under the
amended version of KRS 61.103, the evidence required to prove causation is reduced
and the employee now only has to prove that the report or threat to report a suspected
violation of law was simply a contributing factor in a personnel action involving the
employee. This must only be proven by a preponderance of evidence.
The change in the burden of proof was also a change in substantive law. Under
the earlier version of KRS 61.103, the employer had no burden of proof. Under the
amended version, the employer now has an affirmative burden of proving by clear and
convincing evidence that the report was not a material fact in the personnel action. The
amended version of the statute clearly provides for new legal consequences as a result
of certain types of employer conduct which did not have any legal significance prior to
amendment of the statutes.
Two cases which involve amendments to the federal Whistleblower Statute are of
persuasive significance here. The federal Act is similar to the Kentucky Act in almost
every respect. Tavlor v. Federal Deposit Ins. Corp., 132 F.3d 753 (D.C. Cir. 1997) and
Walleri v. Federal Home Loan Bank of Seattle, 965 F.Supp. 1459 (D. Ore. 1997) both
hold that the amendments changed the substantive law and should not be applied
retroactively to events which had occurred prior to the effective date of the amendment.
The federal amendment changed the causation component of the law and established a
new burden of proof on the employer. Prior to the amendment, an employee had to
prove direct causal connection between his report and the reprisal. Since the
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amendment, an employee has only to prove that his report was a contributing factor in a
personnel action taken by the employer. Moreover, prior to the amendment, an
employer had the burden of proving by a preponderance of the evidence a legitimate,
nonretaliatory reason for the employment action. Since the amendment, the employer
has to prove by clear and convincing evidence that it would have taken the same action
even in the absence of the employee’s report.
Although there is no Kentucky case to substantiate the proposition that laws
relating to the burden of proof constitute substantive law and not procedural law, we find
that other jurisdictions have so concluded. See Garrett v. Moore-McCormick Co., 317
U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942); Cities Service Oil Co. v. Dunlap, 308 U.S.
208, 60 S.Ct. 201, 84 L.Ed. 196 (1939); Central Vermont Railway Co. v. White, 238 U.S.
507, 35 S.Ct. 865, 59 L.Ed. 1433 (1915); Southern Railwav Co. v. Miller, 285 F.2d 202
(6th Cir. 1960). We agree.
Here, the amendments to the Whistleblower Act changed the facts required to
establish a viable cause of action. It allows an employee different rights with regard to
actions taken by the employer. It establishes different legal obligations on the employer
as to actions involving employees. The amendment changes the substantive law. The
amended statute did not accurately present the legal rights of Vinson and Anderson at
the time of the alleged events and the amended statute does not accurately represent
the legal duties of the Department of Agriculture at the same time. Consequently the
liability of the Department of Agriculture, if any, should have been determined by using
the original version of the Whistleblower Act which was in effect at the time of the
events. This should not preclude the presentation of any violations of the Act that
occurred after the adoption of the amendment.
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It should be abundantly clear that the duties imposed on the Department of
Agriculture under KRS 61.102 did not change. Reprisals against public employees for
actual disclosures or attempt to disclose violations of the law were prohibited before
1993 and are also prohibited after September of 1993. There is no doubt that it was the
intent of the legislature that the “public confidence in the integrity of state government
and its officials” be maintained and that underlying basis for both the original Act and
the amendment remains in effect.
However, in order to avoid the retroactive effect of the amendment it is the duty
of this Court to reverse the judgment of the trial court and remand this case for a new
trial under the original version of the Whistleblower Act as to those events that occurred
at that time.
It is the holding of this Court that KRS 61 .I 01 et seq., commonly known as the
Whistleblower Act is constitutional and that the language of the original Act and the
amendments thereto are not void for vagueness. Punitive damages as provided by the
Act can be awarded in the absence of compensatory damages and questions arising
under the statute can be tried by a jury.
The opinion of the Court of Appeals and the judgment of the circuit court are
reversed and this matter is remanded to the circuit court for a new trial under the original
version of the Act.
Lambert, C.J., Cooper, Graves, Keller, Stumbo and Wintersheimer, JJ., concur.
Johnstone, J., files a separate opinion concurring in part, dissenting in part.
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COUNSEL FOR APPELLANT:
Mark T. Farrow
Department of Agriculture
Capital Plaza Tower, 7th Floor
500 Mero Street
Frankfort. KY 40601
Richard M. Guarnieri
Johnson, Judy, True & Guarnieri
326 West Main Street
Frankfort, KY 40601
COUNSEL FOR APPELLEES:
Bennett E. Bayer
106 West Vine Street
Suite 505
Lexington, KY 40507
Daniel Egbers
Department of Personnel
200 Fair Oaks Lane, 5th Floor
Frankfort, KY 40601
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RENDERED: OCTOBER 26,200O
TO BE PUBLISHED
1999-SC-0570-DG
APPELLANT
COMMONWEALTH OF KENTUCKY
DEPARTMENT OF AGRICULTURE
V.
ON REVIEW FROM COURT OF APPEALS
97-CA-1877-MR
FRANKLIN CIRCUIT COURT NO. 93-Cl-886
APPELLEES
DONALD R. VINSON; CHARLES ANDERSON; and
ROBERT S. PETERS, SECRETARY OF THE
PERSONNEL CABINET
OPINION BY JUSTICE JOHNSTONE
CONCURRING IN PART AND DISSENTING IN PART
I concur with the majority opinion as to the constitutionality of the statute, the
awarding of punitive damages and the application of the amended statute, but
conclude that the trial judge committed error in granting a trial by jury.
While the right to trial by jury is guaranteed by Section 7 of the Kentucky
Constitution and governed by Rules 38 et seq., of the Kentucky Rules of Civil
Procedure, it is limited to those common-law matters to which a jury trial existed in
1791. Johnson v. Holbrook, Ky., 302 S.W. 2d 608, 611 (1957).
KRS 61.101 etseq.,
commonly known as the Kentucky Whistleblower Act, created a statutory cause of
action which did not exist prior to 1986. Two issues must therefore be addressed: (1)
whether the act itself authorizes trial by jury in actions of this type; and (2) whether
actions brought under the act are analogous to any action available under common law,
thus invoking the right to trial by jury
The Court of Appeals was correct when it stated that “the act implies that an
employee filing an action under the statute is to have his claim adjudicated by the
court.” Commonwealth v. Vinson, Ky. App., 1997-CA-001877-MR at 23 (rendered
February 12, 1999). The language of the act is clear in this respect, not only making no
mention of a right to trial by jury, but specifically addressing the role of the court in such
actions:
A court, in renderina a iudament in an action filed under KRS 61 .I02 and
61.103, shall order, as it considers aoprooriate, reinstatement of the
employee, and the payment of back wages, full reinstatement of fringe
benefits and seniority rights, exemplary or punitive damages, or any
combination thereof. A court mav also award the complainant all or a
portion of the costs of litigation, including reasonable attorney fees and
witness fees.
KRS 61.990(4) (emphasis added).
The language used evinces the legislature’s intent to have such matters
adjudicated solely by the court, and does not support the right to a jury trial. This Court
has previously held that “where a right is created by statute and committed to an
administrative forum, jury trial is not required.” Kentuckv Commission on Human Riahts
v. Fraser, Ky., 625 S.W. 2d 852, 854 (1981); see also Mavs v. Deoartment for Human
Resources, Ky. App., 656 S.W. 2d 252, 253 (1983). To interpret the act as containing
an implied requirement for trial by jury not only departs from previous pronouncements
by this Court, but likewise contorts the language of the statute.
In order for the statutory language to be consistent with the majority’s
interpretation, there would need to be some analogy for the Whistleblower Act in the
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common law. The majority draws such an analogy in the premise that a cause of action
for damages, even under a specific statute, is like any damage suit under common law,
thus appropriate for trial by jury. Meyers v. Chapman Printing Co.. Inc., Ky., 840 S.W.
2d 814, 819 (1992). Such a standard, however, would allow any plaintiff to claim the
right to trial by jury merely by asking for damages. The proper approach is for the trial
court to evaluate “the true nature and effect of the basic issues raised by the claims and
the defenses and the relief which may be granted to the parties.” Johnson, supra, at
610.
Such analysis reveals that the cause of action in the case at bar is equitable in
nature, a conclusion even the Court of Appeals implicitly embraces. Commonwealth v.
Vinson, suora, at 25.
In my opinion, there is no analogy for the Whistleblower Act to be found in the
common law.
Prior to enactment of the statute, a state employee who suffered such
reprisal and discrimination such as that established in this case had no legal cause of
action; at best, the employee had an equitable claim. As no right to trial by jury would
have been possible under the common law, and none is authorized by the language of
the statute, it was error for the court to grant this right.
As for the Court of Appeals’ characterization that such jury was advisory in
nature, the record shows that it was not designated as such until the trial court adopted
the jury’s findings as its own. Thus, the court allowed the jury to usurp the fact-finding
obligation that the Whistleblower Act assigns to the trial judge alone. Considerations of
fundamental fairness, as well as the extra-jurisdictional cases cited within Appellant’s
brief, convince me that this Court should hold that empaneling an advisory jury under
Rule 39.03 of the Kentucky Rules of Civil Procedure at the very least requires some
contemporaneous designation of the jury as such by the court.
I would reverse the Court of Appeals on the jury issue and remand this case for
retrial consistent with this Opinion.
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