FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE,
JUDGE ACTION NO. 98-CR-000443
FOR APPELLANT: Cassie Chambers Armstrong John Young
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Frankfort, Kentucky, Jason Moore Assistant Attorney General
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES.
operative facts in this matter are uncontested. In 1998,
Frederick Jones pled guilty in Jefferson Circuit Court to one
felony count of theft by failure to make the required
disposition of property. As a result, he spent several months
incarcerated and five years on supervised probation. In
August 2018, over twenty years after his guilty plea, Jones
filed an application with the circuit court to have his
record expunged, pursuant to Kentucky Revised Statute (KRS)
431.073. However, he did not tender any filing fee with this
petition but instead requested an adjudication of "poor
person" status in an effort to be excused from paying
the requisite expungement fees. See KRS 453.190.
Ultimately, the circuit court denied Jones's request,
explaining in relevant part: "The Court views the cost
of this elective service as one that the legislature did not
intend to be waived, and as one that is not necessarily
incurred in the prosecution or defense of a legal claim, as
contemplated by KRS 453.190." This appeal followed.
See Kentucky Rule of Civil Procedure (CR) 5.05(4).
Upon review, we affirm.
addressing the substance of Jones's arguments, we note
KRS 431.073 was amended on June 27, 2019, while this appeal
was pending. Because the amended version was designated by
the General Assembly as retroactive,  it is the focus of our
analysis. With that said, Jones offers two overarching
reasons why, in his view, the circuit court's
disallowance of his request for cost-free filing was
improper: (1) it ran afoul of the Equal Protection and Due
Process Clauses of the United States and Kentucky
Constitutions; and (2) it misinterpreted the relevant
his first argument, Jones labors under a misapprehension.
Putting aside that indigence is not a suspect class for equal
protection purposes, there exists no due process right to an
expungement of state records under the United States or
Kentucky Constitutions. See, e.g., Duke v. White,
616 F.2d 955, 956 (6th Cir. 1980) ("The right to
expungement of state records is not a federal constitutional
right."). Like parole, expungement is not a
right but a statutory
privilege - a privilege the General Assembly has no
obligation to provide at all, and which it may therefore
provide subject to conditions that our Courts are not at
liberty to ignore. See Alexander v. Commonwealth,
556 S.W.3d 6, 9 (Ky. App. 2018) ("Expungement is a
privilege granted by statute, the express limits of which
cannot be extended by judicial fiat."); see
also Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky.
1999) ("Kentucky courts have repeatedly held that there
is no constitutional right to parole, but rather parole is a
matter of legislative grace or executive clemency. . . .
Parole is simply a privilege and the denial of such has no
constitutional implications." (internal citations and
explain our decision by analogy, the availability of
expungement under Kentucky law is akin to the availability of
a discharge in bankruptcy under federal law. Like an
expungement, obtaining a discharge in bankruptcy is also a
matter of legislative grace. See United States v.
Kras, 409 U.S. 434, 446-47, 93 S.Ct. 631, 638-39, 34
L.Ed.2d 626 (1973). Like the denial of an expungement, a
denial of discharge as to certain debts does not result in
imprisonment or a monetary penalty, but merely withholds the
statutory benefit otherwise available regarding those debts.
See Transamerica Premier Ins. Co. v. Chaplin (In re
Chaplin), 179 B.R. 123, 128 (Bankr. E.D. Wis. 1995). In
both contexts, a court supervising the proceedings has the
authority to do so only by a delegation of authority from the
legislature. Kras, 409 U.S. at 447, 93 S.Ct. at 639.
And in neither instance is there a constitutional right of
access to the courts. See id. ("The mere fact
that Congress has delegated to the District Court supervision
over the proceedings by which a petition for discharge is
processed does not convert a statutory benefit into a
constitutional right of access to a court.").
other words, the operative "right" Jones
attempted to exercise before the circuit court is best
characterized as the right to invoke the circuit court's
discretion to expunge his record; and the circuit court's
discretion to expunge his record, in turn, was solely
governed by the plain terms of the expungement statute, KRS
leads to Jones's second argument. He believes the circuit
court erred in failing to apply the cost-waiving provision of
KRS 453.190 to his expungement request. In that vein, he
asserts there is no dispute that he qualifies as a "poor
person" within the meaning of KRS 453.190(2); and that
the language of KRS 453.190(1), as it appears below, is broad
enough to provide him with a waiver of all costs for every
kind of proceeding:
A court shall allow a poor person residing in this state to
file or defend any action or appeal therein without paying
costs, whereupon he shall have any counsel that the court
assigns him and shall have from all officers all needful
services and process, including the preparation of necessary
transcripts for appeal, without any fees, except such as are
included in the costs recovered from the adverse party, and
shall not be required to post any bond except in an amount
and manner reasonable under the circumstances of his poverty.
making this argument, however, Jones ignores at least three
principles of statutory construction. First, "[w]here a
conflict exists between two statutes, the later statute
enacted is generally controlling." Williams v.
Commonwealth, 829 S.W.2d 942, 944 (Ky. App. 1992)
(citation omitted). Second, "where two statutes concern
the same or similar subject matter, the specific shall
prevail over the general." Withers v. University of
Kentucky, 939 S.W.2d 340, 345 (Ky. 1997) (citations
omitted). And third, legislative intent is expressed by
omission as well as by inclusion, and the express mention of
one thing implies the exclusion of others not so mentioned.
See Whitlock v. Rowland, 453 S.W.3d 740, 744 (Ky.
KRS 431.073 is the later-enacted of the two statutes. While
KRS 453.190 describes a generally applicable waiver of costs
for a "poor person," KRS 431.073 provides that
payment of the fees associated with expungement is mandatory:
It specifically and repeatedly conditions the circuit
court's authority to grant or even consider expungement
upon the payment of the statutory fees. Moreover, by
expressly providing that the fees are mandatory, the
implication is not (as Jones claims) that the fees are
mandatory except for a "poor person." The
implication is that they are mandatory. See,
e.g., Spees v. Kentucky Legal Aid, ...