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Harilson v. Shepherd

Supreme Court of Kentucky

September 26, 2019

BECKY HARILSON, IN HER OFFICIAL CAPACITY AS ACTING CO-DIRECTOR OF THE KENTUCKY LEGISLATIVE RESEARCH COMMISSION AND DAVID FLOYD, IN HIS OFFICIAL CAPACITY AS ACTING CO-DIRECTOR OF THE KENTUCKY LEGISLATIVE RESEARCH COMMISSION APPELLANTS
v.
HON. PHILLIP J. SHEPHERD, JUDGE, FRANKLIN CIRCUIT COURT APPELLEE AND LEXINGTON H-L SERVICES, INC., D/B/A LEXINGTON HERALD-LEADER REAL PARTY IN INTEREST

          ON APPEAL FROM COURT OF APPEALS CASE NO. 2018-CA-001749-OA FRANKLIN CIRCUIT COURT NO. 18-CI-00512

          COUNSEL FOR APPELLANTS: Gregory Allen Woosley Legislative Research Commission

          COUNSEL FOR REAL PARTY IN INTEREST: Thomas W. Miller Elizabeth C. Woodford MILLER, GRIFFIN & MARKS, P.S.C.

          OPINION

          HUGHES, JUSTICE

         Appellants Becky Harilson and David Floyd, in their official capacities as Acting Co-Directors of the Kentucky Legislative Research Commission (LRC), [1] seek a writ of prohibition preventing the Franklin Circuit Court from adjudicating an action filed by Lex H-L Services, Inc., d/b/a/ Lexington Herald-Leader (the Herald-Leader). In the underlying action, the Herald-Leader sought judicial review of LRC's determination that certain records requested by the Herald-Leader are not subject to disclosure under Kentucky's Open Records Act (ORA or Act). LRC contends that the General Assembly has not granted the circuit court subject-matter jurisdiction to hear the merits of the Herald-Leader's claims, and furthermore the circuit court's exercise of jurisdiction violates the separation of powers doctrine. The Court of Appeals concluded the Franklin Circuit Court has jurisdiction in this matter and denied the writ. For the reasons stated below, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Following up on a news lead that an LRC employee had filed a complaint against Kentucky Representative Jim Stewart III alleging sexual harassment, a Herald-Leader reporter filed an open records request with then LRC Director David Byerman. The request, dated March 9, 2018, was for 1) records of a complaint filed against Stewart on or around February 6, 2015; 2) records of meetings held with Stewart on or around February 9, 2015; and 3) a copy of any agreement that said Stewart was not to have any contact with an LRC staffer. LRC's General Counsel responded to the request on March 14, 2018, stating that if records relating to the request were to exist, they were exempt from disclosure under KRS 61.878(1)(a), (h), (i), and 0);[2] Section 43 of the Kentucky Constitution; and attorney-client privilege and attorney work product doctrine.

         On March 26, 2018, the Herald-Leader sent a letter asking LRC to reconsider the prior response, specifically noting that records redacting the LRC staffer's identifying information pursuant to KRS 61.878(1)(a)'s personal privacy exemption would be accepted. LRC did not respond to this letter. On April 12, 2018, the Herald-Leader made its request under KRS 7.119(3) for LRC to review Director Byerman's denial of the Herald-Leader's request for documents. On May 14, 2018, LRC issued a decision affirming the Director's denial of the requested records.[3] On the same day, the Herald-Leader filed its complaint in Franklin Circuit Court challenging the Director's denial. After receiving LRC's decision, the Herald-Leader filed its amended complaint seeking review of that decision.

         Director Byerman moved the circuit court to dismiss the action for lack of subject-matter jurisdiction. After that court denied the motion, LRC petitioned the Court of Appeals for a writ prohibiting the circuit court from proceeding without the requisite subject-matter jurisdiction. The Court of Appeals denied the petition, and this appeal followed.[4] Kentucky Rule of Civil Procedure (CR) 76.36(7).

         ANALYSIS

         A writ is an extraordinary remedy, cautiously and conservatively granted. Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). A writ of prohibition may issue when a lower court is acting on matters not within its subject-matter jurisdiction. Goldstein v. Feeley, 299 S.W.3d 549, 551-52 (Ky. 2009). "One seeking a writ when the lower court is acting 'outside of its jurisdiction' (the so-called first class of writ cases) need not establish the lack of an adequate alternative remedy or the suffering of great injustice and irreparable injury. Those preconditions apply only [in the second class of writ] when a lower court acts'erroneously but within its jurisdiction.'" Id. at 552. "The court has subject matter jurisdiction when the 'kind of case' identified in the pleadings is one which the court has been empowered, by statute or constitutional provision, to adjudicate." Dougherty v. Telek, 366 S.W.3d 463, 467 (Ky. 2012) (citation omitted).

         The lower court's grant or denial of a writ of prohibition is generally reviewed for an abuse of discretion. Southern Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 926 (Ky. 2013) (citation omitted). However, when a question of law is involved, we review that question de novo. Id .; Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004) ("De novo review will occur most often under the first class of writ cases, i.e., where the lower court is alleged to be acting outside its jurisdiction, because jurisdiction is generally only a question of law.").

         LRC presents two arguments. First, it contends that the circuit court lacks subject-matter jurisdiction because the General Assembly has not bestowed such jurisdiction under KRS 7.119(3). Second, it insists that the courts generally lack jurisdiction based on the separation of powers doctrine. The Court of Appeals, addressing only the first argument, denied, the writ because it concluded the circuit court properly exercised subject-matter jurisdiction under the relevant statutes. We begin by considering the statutory scheme.[5]

         I. Franklin Circuit Court Has Subject-Matter Jurisdiction Under KRS 7.119

         In Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978), this Court stated:

There 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. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy.

         Relying on Flood, LRC claims that the plain language of KRS 7.119 does not grant the circuit court jurisdiction to hear the Herald-Leader's claims. In short, LRC maintains that judicial review of open records requests addressed to the LRC Director is authorized only if LRC fails to act on an appeal from the Director's decision. In LRC's view, if it acts, either affirming or reversing its Director, the matter is closed, with no resort to the courts available.

         Turning to the statute, KRS 7.119(3) provides for the inspection of legislative records by the public. It states in full:

Requests for records or other documents in the custody of the Legislative Research Commission or the General Assembly shall be directed to the director of the Legislative Research Commission. Except for KRS 61.880(3), [6] provisions of the Open Records Act, KRS 61.870 to 61.884, [7] shall apply to a request for inspection or copies of documents or other items not set forth in subsection (2) of this section, [8] and except that a request for a review under KRS 61.880 of any determination by the director shall be made to the Legislative Research Commission, which shall issue its decision within thirty (30) days. If the Legislative Research Commission does not issue its decision on a review of the director's determination within thirty (30) days of submission to it of the matter, the director's determination may be appealed to the Franklin Circuit Court within sixty (60) days of its issuance. For purposes of this subsection, any reference to the Attorney General in KRS 61.880 and 61.882 shall be read as the Legislative Research Commission.

         LRC interprets KRS 7.119(3) to mean that the cross-referenced ORA provisions (KRS 61.870 to 61.884 excepting KRS 61.880(3)) apply to the mechanics for handling a request for inspection, but not to a request for review. LRC views the introductory phrase "and except that a request for a review under KRS 61.880 of any determination by the director shall be made to the Legislative Research Commission, " as replacing the entirety of KRS 61.880 and providing a more specific review process applicable to legislative branch records requests. The process it advocates limits review of the LRC Director's decision to the LRC itself. LRC further contends that KRS 7.119(3) 's plain language limits an appeal to the circuit court to only those cases where LRC fails to act within thirty (30) days on a matter submitted for review. Because LRC's decision affirming the Director's denial was issued within thirty days of the Herald-Leader's request for its review, LRC insists its decision is not subject to review in the circuit court.

         The Herald-Leader counters that if the General Assembly intended to incorporate the ORA into KRS 7.119(3) only as to requests for records, it would not have incorporated KRS 61.880(1), (2), (4), and (5) - all provisions for enforcing a person's right to inspect records - or KRS 61.882, which expressly grants circuit court jurisdiction over ORA disputes. According to LRC, however, the General Assembly's use of the ORA statutory range, minus one exception, is a shorthand method for incorporation of the contextually relevant portions of the ORA.

         Rules of statutory construction are used to give effect to the intent of the General Assembly. Saxton v. Commonwealth, 315 S.W.3d 293, 300 (Ky. 2010) ("Discerning and effectuating the legislative intent is the first and cardinal rule of statutory construction."); KRS 446.080(1) ("All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature ...."). That intent is derived from the plain reading of the statute's language unless the language is ambiguous. Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002). Furthermore, "[t]he statute must be read as a whole and in context with other parts of the law. All parts of the statute must be given equal effect so that no part of the statute will become meaningless or ineffectual." Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky. 2005).

         Applying these fundamental statutory construction principles, we find as a matter of law that the Franklin Circuit Court has subject-matter jurisdiction to review the LRC's open records request decision. With KRS 7.119(3)'s virtually wholesale incorporation of the ORA statutes, we find it beneficial to briefly examine the purpose of the Open Records Act and the review process prescribed when a public agency denies an ORA request before turning to the specifics of KRS 7.119(3).

         In 1992, the General Assembly declared the policy of the Open Records Act relating to public agencies generally, KRS 61.870 to 61.884, "is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871.

         KRS 61.880 and KRS 61.882 are the two statutes within the Open Records Act which detail how enforcement of the Act shall proceed. KRS 61.880(2)(a) sets forth the procedure by which a complaining party may request the Attorney General to review an agency's denial of an individual's records request, and unless unusual circumstances as defined in KRS 61.880(2)(b) are present, the twenty (20) day time frame by which the Attorney General must issue a written decision. Pursuant to KRS 61.880(5)(a), a "party shall have thirty (30) days from the day that the Attorney General renders his decision to appeal the decision." KRS 61.880(5)(a) also states that an "appeal within the thirty (30) day time limit shall be treated as if it were an action brought under KRS 61.882." KRS 61.882(1) confers jurisdiction for enforcement of KRS 61.870 to 61.884 upon "[t]he Circuit Court of 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." Under this statute, a person alleging an ORA violation can go immediately to court without first seeking review by the Attorney General. KRS 61.882(2).

         Enacted in 2003, KRS 7.119(3) details the manner in which a person may inspect records in the custody of the LRC or the General Assembly. We construe the statute by considering the plain meaning of each sentence in relation to the whole section.

         The second sentence of KRS 7.119(3) states:

Except for KRS 61.880(3), provisions of the Open Records Act, KRS 61.870 to 61.884, shall apply to a request for inspection or copies of documents or other items not set forth in subsection (2) of this section, and except that a request for a review under KRS 61.880 of any determination by the director shall be made to the Legislative ...

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