PETITIONER THOMAS EDWIN JONES V COMMONWEALTH OF KENTUCKY, ADMINISTRATIVE OFFICE OF THE COURTS
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RENDERED : AUGUST 25, 2005
TO BE PUBLISHED
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2005-SC-0272-OA
PETITIONER
THOMAS EDWIN JONES
V
IN SUPREME COURT
COMMONWEALTH OF KENTUCKY,
ADMINISTRATIVE OFFICE OF THE
COURTS
RESPONDENT
OPINION OF THE COURT BY JUSTICE COOPER
VACATING AND REMANDING
Petitioner, Thomas Edwin Jones, brings this original action, pursuant to CR
76.36, to challenge a personnel action taken against him by Respondent, the
Administrative Office of the Courts (AOC). Petitioner is a former Bell County pretrial
services officer . On November 17, 2003, the AOC's Division of Pretrial Services issued
to Petitioner official notification of its intent to dismiss him from employment. Petitioner
thereafter requested an informal meeting with the General Manager of the Division of
Pretrial Services . On December 16, 2003, after this informal meeting, Petitioner
received a second official notification of intent to dismiss him . Petitioner appealed, and
on May 7, 2004, the AOC conducted a hearing on the matter . After taking testimony
from several witnesses and reviewing various letters, reports, and affidavits submitted
by the parties, the hearing officer concluded that good cause existed for Petitioner's
dismissal . On June 15, 2004, the Acting Director of the AOC adopted the hearing
officer's recommendation to affirm Petitioner's dismissal . Petitioner appealed to the
Court of Justice Employee Grievance and Appeal Committee, which found that the
decision to terminate Petitioner's employment was reasonable .
Petitioner then filed an action in the Franklin Circuit Court, which he styled a
"Petition for Appeal of Findings of Fact and Determination of Reasonableness of
Director's Decision ." On March 21, 2005, the Franklin Circuit Court ordered that
Petitioner's action be transferred to this Court, reasoning that because the AOC is the
administrative arm of the Supreme Court, requests for review of AOC actions can only
be brought before the Supreme Court . This petition followed .
The Chief Justice of the Commonwealth has constitutional authority to "appoint
such administrative assistants as he deems necessary." Ky. Const. § 110(5)(b) . This
authority is instituted by SCR 1 .050, which provides that "[t]he Administrative Office of
the Courts shall act as the administrative and fiscal agency of the Court of Justice ."
SCR 1 .050(1). See also KRS 27A.050 ("The Administrative Office of the Courts is
created to serve as the staff for the Chief Justice in executing the policies and programs
of the Court of Justice.") . In Martin v. Administrative Office of the Courts, 107 S .W .3d
212 (Ky . 2003), we addressed a request for a writ of mandamus directing the AOC to
reimburse costs of preparing and transcribing transcripts for appeal of a case to the
Court of Appeals . We declined to issue the writ, citing an order promulgated by former
Chief Justice Stephens rescinding the AOC's authorization for payment of transcripts .
Id. at 214-15 . In discussing our jurisdiction over the matter, we stated, "[t]he
Administrative Office of the Courts, as an inseparable part of the Office of the Chief
Justice, cannot be properly sued in any of the other courts of the state." Id. at 214 . In
other words,
[E]xcept for matters in which the United States Supreme Court has the
right of review over the judgments of this court, the jurisdiction to hear and
determine any cause that has as its ultimate objective a judgment
declaring what this court must do or not do is vested exclusively in this
court, for the very simple reason that our Constitution makes it the highest
court of the state and gives it the authority to "exercise control of the Court
of Justice." It could not be said to possess such authority if it or its
members in their official capacities were held subject to the authority of
the Circuit Court or any other court of the state. The Circuit Court can
have no more jurisdiction to issue a declaratory judgment than to issue a
writ of mandamus or prohibition against this court or against its members
and administrative staff in their official capacities .
Ex Parte Farlev , 570 S .W.2d 617, 622 (Ky. 1978) . See also Ex Parte Auditor of Pub.
Accounts , 609 S.W.2d 682, 683 (Ky. 1980) ("[B]ecause the [Kentucky Bar] Association
is an arm of the court itself, and therefore cannot properly be sued in any of the other
courts of the state, this court is [the] only forum in which the controversy can be heard
and officially resolved .") . This language formed the basis for the Franklin Circuit Court's
decision to transfer Petitioner's action so that the parties would litigate the action before
this Court.
Where Martin , Auditor of Public Accounts, and Farlev concerned original suits
against agencies of the Court of Justice, however, Petitioner's action in the Franklin
Circuit Court was an appeal from a personnel action taken by the AOC . Such actions
are governed by the Court of Justice personnel policies, which are issued by the Chief
Justice pursuant to the authority provided by Sections 110(5)(b) and 116 of the
Kentucky Constitution . See also SCR 1 .050(2) . Section 6.04 of the Court of Justice
personnel policies, entitled "Dismissals and Notification of Dismissals," and Section
6.08, entitled "Grievance and Appeal Procedures," detail the steps that must be
followed to dismiss a Court of Justice employee, as well as the employee's rights of
appeal upon dismissal . In the case sub audice , the AOC followed the proper procedures
for dismissal, and Petitioner exercised his rights of appeal in turn, first receiving an
evidentiary hearing and review of the hearing record by the Acting Director, and then
obtaining review of the decision by the Employee Grievance and Appeal Committee .
Upon receiving an adverse determination from the Committee, Petitioner then appealed
his case to the Franklin Circuit Court . When an employee continues to seek relief after
the Committee's determination, Section 6 .08 of the Court of Justice personnel policies
provides only that the employee may "appeal the grievance to the proper court for
resolution ." The personnel policies are silent as to the "proper court."
The General Assembly has addressed the question of the "proper court" for
judicial review of action taken by administrative agencies :
A party shall institute an appeal by filing a petition in the Circuit Court of
venue, as provided in the agency's enabling statutes . . . . If venue for
appeal is not stated in the enabling statues, a party may appeal to Franklin
Circuit Court or the Circuit Court of the county in which the appealing party
resides or operates a place of business .
KRS 1313.140 . However, the General Assembly's constitutional lawmaking authority
does not, by itself, render a legislative statute applicable to the AOC, which is within the
exclusive province of the judicial branch.
The correct principle, as we view it, is that the legislative function cannot
be so exercised as to interfere unreasonably with the functioning of the
courts, and that any unconstitutional intrusion is per se unreasonable,
unless it be determined by the court that it can and should be tolerated in
a spirit of comity .
Auditor of Pub. Accounts , 609 S.W.2d at 688 . The issue in Auditor of Public Accounts
was whether the Auditor, an official whose constitutional authority is only of a scope
defined by the General Assembly, was legally entitled or required to audit the books of
the Kentucky Bar Association (KBA) . Id . at 683. We held that the 1975 Judicial Article,
which amended Section 116 of the Kentucky Constitution to provide for Supreme Court
governance of the KBA, "completely removed the subject from any legislative authority
and rendered obsolete and ineffective the statutes pertaining to it." Id. at 684. Thus,
the KBA became the exclusive province of the Court of Justice and, absent a judicial
extension of comity to the statutes of the General Assembly, the Auditor of Public
Accounts had no authority to inspect the KBA's records .
The Judicial Article also provided for the Chief Justice's governance of the
administrative arm of the Court of Justice . Ky. Const. § 110(5)(b). This effectively
removed the AOC from legislative authority, in the same manner as it did the KBA . See
Auditor of Pub. Accounts , 609 S .W.2d at 687 ("[T]he 1975 Judicial Amendment
extended the judicial function to include the administration of the business affairs of the
judicial branch of government . . . .") ; Farley , 570 S .W .2d at 620 ("Clearly, [the AOC]
and its director and employes are part and parcel of the judicial department of the state.
They are, in fact, inseparable from the office of the Chief Justice itself .") .
Nevertheless, "[t]he policy of this court is not to contest the propriety of legislation
in this area to which we can accede through a wholesome comity." Auditor of Pub .
Accounts , 609 S.W .2d at 688. The extension of comity depends on the outcome of a
balancing test, as demonstrated by this Court's denial of comity to KRS Chapter 43,
which defines the functions of and directs the Auditor of Public Accounts . Id. at 688-89.
Our decision was based upon the recognition that it was unnecessary to apply Chapter
43 to the KBA, because the KBA regularly subjected its financial records to inspection
by certified public accountants and held its books and records open for public
inspection . Id. at 688. We recognized that this lack of necessity was outweighed by the
potential threat to judicial independence that would have been created by granting the
authority to audit the KBA to an office that is political in nature . Id . at 688-89 . As a
result, we denied comity to Chapter 43, declining to extend it to provide the Auditor with
authority over the KBA.
In contrast, the application of KRS 1313.140 to determine the "proper court" for
appeal of an AOC personnel action is necessary. This Court simply does not possess
the resources to open its gates to direct appeals of each personnel action taken by the
AOC . Sound management of judicial resources dictates that the circuit courts hear the
initial appeals from such administrative actions . Moreover, there is no counterbalancing
reason to deny comity as existed in Auditor of Public Accounts. KRS 1313.140 provides
for judicial review of agency action and will not subject the AOC to an intrusion by one
of the political branches of our government. Circuit court review will not threaten the
Supreme Court's "authority to 'exercise control of the Court of Justice,"' Farley , 570
S .W.2d at 622 (quoting Ky. Const. § 110(2)(a)), as the review shall be limited, in
accordance with the provisions of KRS 13B. 150 . Additionally, this Court will retain the
ultimate authority over AOC personnel actions, as well as the determinations of the
circuit courts reviewing such actions, by way of the normal appellate process .
We conclude that comity should be extended to KRS 1313.140 in this context . A
party wishing to appeal an AOC personnel action may file such appeal in either the
Franklin Circuit Court or the circuit court of the county in which that party resides or
operates a place of business . In reviewing the AOC's action, the circuit court shall sit
without a jury, shall be confined to the record unless there has been fraud or
misconduct, shall not substitute its judgment for that of the AOC as to the weight of the
evidence on questions of fact, and shall be limited to affirming the order or reversing it
and remanding the action for further administrative proceedings, in accordance with
KRS 1313.150 .
Accordingly, we vacate the Franklin Circuit Court's order of transfer and remand
this case to the Franklin Circuit Court for proceedings consistent with this opinion .
All concur.
COUNSEL FOR PETITIONER:
Michael A. Taylor
Taylor Law Offices
P .O. Drawer 937
Middlesboro, KY 40965
COUNSEL FOR RESPONDENT :
Raymond F . Debolt, Jr.
Capitol Complex, Bldg 3
Third Floor
1025 Capital Center Drive
Frankfort, KY 40601
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