RENDERED: AUGUST 16, 2018 TO BE PUBLISHED
of 2017-SC-000250-DG
DC PHYLLIS ROACH APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NOS. 2015-CA-001595-MR AND 2015-CA-001994-MR FRANKLIN CIRCUIT COURT NO. 15-CI-00067
KENTUCKY PAROLE BOARD APPELLEES and JUSTICE 86 PUBLIC SAFETY.CABINET, DEPARTMENT OF CORRECTIONS, COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING
On January 14, 2002, facing indictments for eighteen (18) charges of sex
crimes that allegedly occurred between 1987 and 1991, Appellant, Phyllis
Roach, pled guilty to one count of sodomy in the second degree. On February
27, 2002, Roach was sentenced to ten years’ imprisonment by the Meade
Circuit Court, with a three-year conditional discharge period following her
release pursuant to Kentucky Revised Statutes (KRS) 532.043. Roach was
released on or about March 30, 2011 and began postincarceration supervision
pursuant to KRS 532.043. On July 19, 2011, Roach was charged with violating the terms of her
postincarceration supervision. At her preliminary parole revocation hearing.
Roach argued that the supervision statute did not apply to her because KRS
532.043 did not exist until July 15, 1998, at least seven years after she
committed sodomy. Despite defense counsel’s argument, the Administrative
Law Judge (“ALJ”) found that KRS 532.043 applied to Roach and found
probable cause that Roach violated the terms of her supervision. The Parole
Board adopted the ALJ’s recommended order and sentenced Roach to serve the
remainder of her conditional discharge period, fourteen months, incarcerated
in the Kentucky Correctional Institution for Women in Shelby County.
After nine months of incarceration. Roach petitioned the Shelby Circuit
Court for writ of habeas corpus. The Shelby Circuit found that the conditional
discharge part of Roach’s original sentence imposed by the Meade Circuit was
void ab initio, as it was an ex post facto application of KRS 532.043 to Roach’s
crime. Accordingly, the court granted Roach’s petition and ordered her release.
Thereafter, Roach filed a civil lawsuit against the Kentucky Parole Board
in Franklin Circuit Court, seeking compensatory and punitive damages for her
“wrongful incarceration.” However, the Franklin Circuit Court found that the
Kentucky Board of Claims had jurisdiction for civil claims against the
Commonwealth, not the Franklin Circuit. So, the court dismissed Roach’s
claims and suggested she refile before the Board of Claims.
Roach then filed a complaint with the Board of Claims, which rejected
her claims, asserting: (1) the Board of Claims does not have subject-matter jurisdiction over intentional torts like “false imprisonment”; (2) the Parole
Board did not have a duty to question and disobey the Meade Circuit and the
ALJ’s facially valid orders; and (3) if the Parole Board did have the duty to
analyze the legality of such court orders, then that would be a discretionary act
of the Parole Board, rather than ministerial.
Roach appealed the dismissal to the Franklin Circuit, which reversed the
Board of Claims and found that the Parole Board was grossly negligent in
applying an unconstitutional sentence. The Parole Board appealed to the
Court of Appeals. The Court of Appeals reversed the Franklin Circuit, holding
that the Parole Board’s revocation hearing—a quasi-judicial function—was a
discretionary act allotting the Parole Board absolute immunity from liability for
its decisions whether to grant, deny, or revoke parole. The Court of Appeals
held that the Board of Claims only has jurisdiction to award damages for “the
negligent performance of ministerial acts,” KRS 49.070(2) (formerly KRS
44.073(2)), rather than discretionary acts. It therefore held that the Board of
Claims had properly dismissed Roach’s suit. Roach appealed to this Court and
we granted discretionary review.
Analysis
“[U]pon judicial review, deference extends to agency fact-finding.
However, matters of law, including the interpretation and construction of
statutes[,] are . . . within the province of the judicial branch of government.”
Board of Educ. of Fayette Cnty. v. Hurley-Richards, 396 S.W.3d 879, 882 (Ky.
2013). However, a reviewing court may reverse and remand the Parole Board’s order as to determinations of fact, in whole or in part, if it finds that the Parole
Board’s final order is: “(a) In violation of constitutional or statutory provisions; .
. . (c) Without support of substantial evidence on the whole record; [or] (d)
Arbitrary, capricious, or characterized by abuse of discretion . . . KRS
13B. 150(2). Courts review agency determinations of law de novo. Kentucky
Occupational Safety and Health Review Comm’n v. Estill Cnty. Fiscal Court, 503
S.W.3d 924, 927 (Ky. 2016).
KRS 532.043
The parties agree that Roach was improperly subjected to three years of
sex offender conditional discharge requirements under KRS 532.043 by the
Meade Circuit Court’s order, because that statute was not in effect until July
15, 1998, which was at least seven years after her offense. Although former
KRS 532.043(6) stated that it applied to those who plead or were convicted
after July 15, 1998, such a rule is an unconstitutional ex post facto application
under both the federal constitution and this Commonwealth’s constitution,
which “aggravates or increases the punishment for a crime as compared to the
punishment when the crime was committed . . . .” Buck v. Commonwealth, 308
S.W.3d 661, 664 (Ky. 2010) (citing Purvis v. Commonwealth, 14 S.W.3d 21, 23
(Ky. 2000)); U.S. Const, art. I, § 10, cl. 1; Ky. Const. § 19(1). Thus, it was
improper for the Meade Circuit Court to subject Roach to the postincarceration
supervision requirements of KRS 532.043 and to require the Parole Board to
punish Roach for violation of said requirements pursuant to KRS 439.330(l)(e).
Therefore, the Shelby Circuit Court properly granted Roach’s habeas petition. because the Meade Circuit Court’s order had erroneously imposed KRS
532.043 postincarceration requirements upon Roach.
Discretionary or Ministerial Act?
“Whether fault can be apportioned against someone with absolute
immunity from liability is determined by construing the [applicable] statute.”
Jefferson Cnty. Com. Attorney's Office v.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: AUGUST 16, 2018 TO BE PUBLISHED
of 2017-SC-000250-DG
DC PHYLLIS ROACH APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NOS. 2015-CA-001595-MR AND 2015-CA-001994-MR FRANKLIN CIRCUIT COURT NO. 15-CI-00067
KENTUCKY PAROLE BOARD APPELLEES and JUSTICE 86 PUBLIC SAFETY.CABINET, DEPARTMENT OF CORRECTIONS, COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING
On January 14, 2002, facing indictments for eighteen (18) charges of sex
crimes that allegedly occurred between 1987 and 1991, Appellant, Phyllis
Roach, pled guilty to one count of sodomy in the second degree. On February
27, 2002, Roach was sentenced to ten years’ imprisonment by the Meade
Circuit Court, with a three-year conditional discharge period following her
release pursuant to Kentucky Revised Statutes (KRS) 532.043. Roach was
released on or about March 30, 2011 and began postincarceration supervision
pursuant to KRS 532.043. On July 19, 2011, Roach was charged with violating the terms of her
postincarceration supervision. At her preliminary parole revocation hearing.
Roach argued that the supervision statute did not apply to her because KRS
532.043 did not exist until July 15, 1998, at least seven years after she
committed sodomy. Despite defense counsel’s argument, the Administrative
Law Judge (“ALJ”) found that KRS 532.043 applied to Roach and found
probable cause that Roach violated the terms of her supervision. The Parole
Board adopted the ALJ’s recommended order and sentenced Roach to serve the
remainder of her conditional discharge period, fourteen months, incarcerated
in the Kentucky Correctional Institution for Women in Shelby County.
After nine months of incarceration. Roach petitioned the Shelby Circuit
Court for writ of habeas corpus. The Shelby Circuit found that the conditional
discharge part of Roach’s original sentence imposed by the Meade Circuit was
void ab initio, as it was an ex post facto application of KRS 532.043 to Roach’s
crime. Accordingly, the court granted Roach’s petition and ordered her release.
Thereafter, Roach filed a civil lawsuit against the Kentucky Parole Board
in Franklin Circuit Court, seeking compensatory and punitive damages for her
“wrongful incarceration.” However, the Franklin Circuit Court found that the
Kentucky Board of Claims had jurisdiction for civil claims against the
Commonwealth, not the Franklin Circuit. So, the court dismissed Roach’s
claims and suggested she refile before the Board of Claims.
Roach then filed a complaint with the Board of Claims, which rejected
her claims, asserting: (1) the Board of Claims does not have subject-matter jurisdiction over intentional torts like “false imprisonment”; (2) the Parole
Board did not have a duty to question and disobey the Meade Circuit and the
ALJ’s facially valid orders; and (3) if the Parole Board did have the duty to
analyze the legality of such court orders, then that would be a discretionary act
of the Parole Board, rather than ministerial.
Roach appealed the dismissal to the Franklin Circuit, which reversed the
Board of Claims and found that the Parole Board was grossly negligent in
applying an unconstitutional sentence. The Parole Board appealed to the
Court of Appeals. The Court of Appeals reversed the Franklin Circuit, holding
that the Parole Board’s revocation hearing—a quasi-judicial function—was a
discretionary act allotting the Parole Board absolute immunity from liability for
its decisions whether to grant, deny, or revoke parole. The Court of Appeals
held that the Board of Claims only has jurisdiction to award damages for “the
negligent performance of ministerial acts,” KRS 49.070(2) (formerly KRS
44.073(2)), rather than discretionary acts. It therefore held that the Board of
Claims had properly dismissed Roach’s suit. Roach appealed to this Court and
we granted discretionary review.
Analysis
“[U]pon judicial review, deference extends to agency fact-finding.
However, matters of law, including the interpretation and construction of
statutes[,] are . . . within the province of the judicial branch of government.”
Board of Educ. of Fayette Cnty. v. Hurley-Richards, 396 S.W.3d 879, 882 (Ky.
2013). However, a reviewing court may reverse and remand the Parole Board’s order as to determinations of fact, in whole or in part, if it finds that the Parole
Board’s final order is: “(a) In violation of constitutional or statutory provisions; .
. . (c) Without support of substantial evidence on the whole record; [or] (d)
Arbitrary, capricious, or characterized by abuse of discretion . . . KRS
13B. 150(2). Courts review agency determinations of law de novo. Kentucky
Occupational Safety and Health Review Comm’n v. Estill Cnty. Fiscal Court, 503
S.W.3d 924, 927 (Ky. 2016).
KRS 532.043
The parties agree that Roach was improperly subjected to three years of
sex offender conditional discharge requirements under KRS 532.043 by the
Meade Circuit Court’s order, because that statute was not in effect until July
15, 1998, which was at least seven years after her offense. Although former
KRS 532.043(6) stated that it applied to those who plead or were convicted
after July 15, 1998, such a rule is an unconstitutional ex post facto application
under both the federal constitution and this Commonwealth’s constitution,
which “aggravates or increases the punishment for a crime as compared to the
punishment when the crime was committed . . . .” Buck v. Commonwealth, 308
S.W.3d 661, 664 (Ky. 2010) (citing Purvis v. Commonwealth, 14 S.W.3d 21, 23
(Ky. 2000)); U.S. Const, art. I, § 10, cl. 1; Ky. Const. § 19(1). Thus, it was
improper for the Meade Circuit Court to subject Roach to the postincarceration
supervision requirements of KRS 532.043 and to require the Parole Board to
punish Roach for violation of said requirements pursuant to KRS 439.330(l)(e).
Therefore, the Shelby Circuit Court properly granted Roach’s habeas petition. because the Meade Circuit Court’s order had erroneously imposed KRS
532.043 postincarceration requirements upon Roach.
Discretionary or Ministerial Act?
“Whether fault can be apportioned against someone with absolute
immunity from liability is determined by construing the [applicable] statute.”
Jefferson Cnty. Com. Attorney's Office v. Kaplan, 65 S.W.3d 916, 922 (Ky.
2001). While KRS 49.070(2) specifically abrogates sovereign immunity for
ministerial acts, this Court has recognized that, “[b]y implication, the negligent
performance of non-ministerial, i.e., discretionary, acts cannot be a basis for
recovery under the [Board of Claims] Act.” Collins v. Commonwealth ofKy. Nat.
Res. & Envtl. Prot. Cabinet, 10 S.W.3d 122, 125 (Ky. 1999). “In determining
whether acts are ministerial or discretionary for purposes of determining
whether the Commonwealth or one of its agencies may be held liable for
negligent performance of that act, ‘it is necessary to determine whether the acts
involve policy-making decisions and significant judgment, or are merely routine
duties.”’ Commonwealth Transp. Cabinet, Dep’t of Highways v. Sexton, 256
S.W.3d 29, 32 (Ky. 2008) (internal citation omitted).
Similarly, the Sixth Circuit Court of Appeals has recognized that "the
absolute immunity that protects judicial officers engaged in judicial functions
also protects other state officials engaged in adjudicative functions." Draine v.
Leavy, 504 Fed.Appx. 494, 495 (6th Cir. 2012) (quoting Dean v. Byerley, 354
F.3d 540, 555 (6th Cir. 2004)). For this reason, “‘parole board members are
absolutely immune from liability for their conduct in individual parole decisions when they are exercising their decision making powers ....”’ Draine,
504 Fed.Appx. at 496 [quoting Walter v. Torres, 917 F.2d 1379, 1384 (5th Cir.
1990)). Thus, if the Parole Board’s decision whether Roach violated the terms
of postincarceration supervision was an adjudicatory function, then the Board
and its members are absolutely immune.
Roach argues that the Board’s determination that Roach was subject to
KRS 542.043 was simply a ministerial duty involving decisions of fact, and not
one involving significant judgment. We disagree. Rather, the Board, presented
with the facts of Roach’s case, was duty-bound to determine whether she was
subject to KRS 542.043 and whether she had violated its requirements.
Holding a hearing on a parole or postincarceration violation charge is
inherently an adjudicatory action. See Black’s Law Dictionary 42 (6th ed.
1990) (“Adjudicatory action—Administrative actions are ‘adjudicatory’ in
character when they culminate in final determination affecting personal or
property rights.”). Moreover, it is important to clarify that judicial functions are
inherently discretionary in nature. “[A]t their core, discretionary acts are those
involving quasi-judicial or policy-making decisions.” Marson v. Thomason, 438
S.W.3d 292, 297 (Ky. 2014).
“Quasi-Judicial” is “[a] term applied to the action, discretion, etc. of
public administrative officers or bodies, who are required to investigate facts, or
ascertain the existence of facts, hold hearings, weigh evidence, and draw
conclusions from them, as a basis for their official action, and exercise
discretion of a judicial nature.” Bolden v. City of Covington, 803 S.W.2d 577, 581 (Ky. 1991) (quoting Black's Law Dictionary 1245 (6th ed. 1990)). An
agency’s “quasi-judicial power” refers to “[t]he power of an administrative
agency to adjudicate the rights of persons before it.” Id. Thus, we find that the
Board’s adjudication of Roach’s rights as to whether she violated the
postincarceration release requirements of KRS 542.043 was a quasi-
adjudicative function, and therefore a discretionaiy act. Because we conclude
that the act involved here was discretionary, KRS 49.070(2) did not abrogate
the Board’s absolute immunity.
Conclusion
For the reasons stated herein, we hereby affirm the decision of the Court
of Appeals, but for alternative reasoning. We hold that the Parole Board’s
revocation hearing was an adjudicative function, a discretionary act for which
the Parole Board enjoys absolute immunity.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Oliver H. Barber, Jr. Thomas James Banaszynski BARBER, BANASZYNSKI & HIATT, P.S.C.
COUNSEL FOR APPELLEES:
Allison Rene Brown Department of Corrections