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Jones v. Commonwealth

Court of Appeals of Kentucky

October 11, 2019



          BRIEF FOR APPELLANT: Cassie Chambers Armstrong John Young Louisville, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky, Jason Moore Assistant Attorney General Frankfort, Kentucky



          KRAMER, JUDGE:

         The 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.

         Before 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, [1] 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 statutes.[2]

         As to his first argument, Jones labors under a misapprehension. Putting aside that indigence is not a suspect class for equal protection purposes, [3]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[4] - 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 footnote omitted.))

         To 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.").

         In 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 431.073.

         This 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.

         In 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. App. 2015).

         Here, 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.[5] 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, ...

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