RENDERED: MARCH 14, 2019 TO BE PUBLISHED
2017-SC-000367-DG
RODERICKA BRYANT APPELLANT
ON REVIEW FROM COURT OF APPEALS CASE NO. 2015-CA-001705-MR V. JEFFERSON CIRCUIT COURT NO. 12-CI-002309
LOUISVILLE METRO HOUSING APPELLEES AUTHORITY AND JUANITA MITCHELL
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
This case arises out of the tragic death of three-year-old Davion Powell.
His mother, Rodericka Bryant, took him with her to visit her friend, Terrah
Love, at Love’s apartment building, The 550 Apartments (Apartments).
Roderick Moss, who was involved in an ongoing feud with Love and others,
came to the complex and began shooting. One of the stray bullets hit Davion
and he ultimately died from the injuries.1 Bryant then sued Louisville Metro
1 Roderick Moss is currently serving a ten-year prison sentence for the charge of manslaughter, second-degree, related to Davion’s death, as well as other charges arising out of the shooting. Housing Authority (LMHA), the owner and property management company of
Apartments, and Juanita Mitchell, the property manager, for their failure to
evict Love, thereby negligently causing Davion’s death. Both the circuit court
and the Court of Appeals held that LMHA was cloaked in governmental
immunity, and Mitchell was shielded by qualified official immunity; thus,
Bryant’s case was dismissed. Although we find the events of this case
troubling and heartbreaking, we must affirm both courts and hold that LMHA
and Mitchell are both protected by the immunity doctrine.
I. BACKGROUND
In 2003, the City of Louisville and Jefferson County merged to form
Louisville/Jefferson County Metropolitan Government (Louisville Metro),
pursuant to Kentucky Revised Statutes (KRS) Chapter 67C.2 Louisville Metro
is entitled to sovereign immunity as a matter of statute.3 As part of this
merger, the former Housing Authority of Louisville and the former Housing
Authority of Jefferson County were also merged into a new entity: LMHA.
LMHA is governed pursuant to KRS Chapter 80, which provides that
authorities can be created “for the purpose of providing adequate and sanitary
living quarters for individuals or families[.]” KRS 80.020(1).
2 “The governmental and corporate functions vested in any city of the first class shall, upon approval by the voters of the county at a regular or special election, be consolidated with the governmental and corporate functions of the county containing the city. This single government replaces and supersedes the governments of the pre existing city of the first class and its county.” KRS 67C. 101.
3 “A consolidated local government shall be accorded the same sovereign immunity granted counties, their agencies, officers, and employees.” KRS 67C. 101(2)(e).
2 As part of that purpose, LMHA owns, operates, and manages thousands
of units available for low-income housing throughout Jefferson County. Most
of LMHA’s budget comes from federal funding and grants but LMHA also
utilizes some state and local government funds. LMHA owns and operates
Apartments as subsidized, public housing for low-income individuals and
families pursuant to this purpose. Juanita Mitchell served as Apartments’
property manager.
Terrah Love became a tenant at Apartments in February of 2008. Her
rent was $45 per month. In September 2008, Mitchell sent Love a “30 Day
Lease Termination Letter with ‘No Right to Cure”, citing “Material Non-
Compliance with the Rental Agreement or Resident Rules.” In that letter,
Mitchell specifically cited to Section 7 of the Lease Agreement, which provided
that the Resident and the Resident’s guests and visitors must refrain from
“conduct which ... [i]s unlawful, unsafe, irresponsible, disorderly or violent or a
hazard to the safety of any persons or property, including Resident, Household
members, visitors, neighbors or Management staff].]” According to Mitchell,
this violation arose from an allegation that Love was allowing persons not listed
on the lease to live in the apartment. On April 13, 2010, a forcible detainer
judgment was entered against Love; however, no further action was taken, and
Love remained a tenant at Apartments.
On February 3, 2011, Love was cited with a “Warning Letter” from
Apartments. The letter stated that Love had violated the lease by harboring pit
bulls and creating a disturbance for neighbors through loud noise and music.
3 On February 8, 2011, the Louisville Metro Police Department responded to a
report of violence between Love and a boyfriend in front of her children. Love
was initially charged with assault, fourth degree, however, it appears that her
charges were later dismissed. In April, Love was sent a “14 Day Lease
Termination Letter.” Mitchell once again cited to Section 7 of the Lease. Love
attempted to pay her rent in April, but Mitchell sent the payment back to Love,
stating that because of the 14-day termination, Mitchell and Apartments could
not accept the payment.
Mitchell also completed what was called a Form A, which states grounds
for eviction in relation to a certain tenant. Mitchell stated that she had filled
out such a document regarding Love and reported that LHMA had been notified
that Love had been involved in “shootings and physical fights with other
residents.” Mitchell retired on April 30, 2011. Mitchell’s successor also
completed Form A as to Love and LMHA filed a forcible detainer action against
Love on May 12, 2011.
However, before Love was evicted, tragedy struck. Love had been in an
ongoing feud with another woman, Taneisha, over a man they were both
seeing. It seems that Moss was friends with Taneisha and decided to take
matters into his own hands. He approached Love’s apartment on May 13,
2011. Love and several friends were gathered outside the apartment complex
while the children, including Davion, were inside playing. Moss took out a gun
and began shooting. As a result, Davion was shot in the head and succumbed
to his injuries three days later.
4 II. STANDARD OF REVIEW
“The issue of whether a defendant is entitled to the defense of sovereign
or governmental immunity is a question of law.” University of Louisville v.
Rothstein, 532 S.W.3d 644, 647 (Ky. 2017) (citing Rowan County v. Sloas, 201
S.W.3d 469, 475 (Ky. 2006) (citing Jefferson County Fiscal Court v. Peerce, 132
S.W.3d 824, 825 (Ky. 2004))). This Court reviews questions of law de novo.
See Rothstein, 532 S.W.3d at 647 (citing Cumberland Valley Contractors, Inc. v.
Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007)).
III. ANALYSIS
A. The Immunity Analysis Framework
Although the field of immunity is an oft-confusing one, “(t]he one clear
thing is that pure sovereign immunity, for the state itself, has long been the
rule in Kentucky.” Comair, Inc. v. Lexington-Fayette Urban County Airport
Corp., 295 S.W.3d 91, 94 (Ky. 2009). However, “[t]he reach of sovereign
immunity becomes more complicated when dealing with governmental and
quasi-govemmental entities and departments below the level of the
Commonwealth itself.” Id. Although LMHA appears to have argued at some
point in the courts below that it was entitled to sovereign immunity, that
argument must fail as sovereign immunity is limited to the Commonwealth
itself, as well as counties and governments formed according to statute. Thus,
while Louisville Metro maintains sovereign immunity, LMHA, even as a state
agency, would never be entitled to sovereign immunity. The immunity analysis
for LMHA must turn on the existence or absence of governmental immunity.
5 Governmental immunity is itself an extension of sovereign immunity,
thus exhibiting why the terms are often used interchangeably. It is based in
the concept that “sovereign immunity should ‘extend ... to departments, boards
or agencies that are such integral parts of state government as to come within
regular patterns of administration organization and structure.’” Id. at 99
(quoting Kentucky Center for the Arts v. Bems, 801 S.W.2d 327, 332 (Ky. 1990)
(internal quotation marks omitted)). Thus, in Comair, this Court developed and
attempted to clarify a “test” to determine whether the sovereign immunity of
the state should be extended to a governmental entity:
First, the courts must look to the origin of the public entity, specifically: “was [the entity in question] created by the state or a county [which are entitled to immunity], or a city [which is not entitled to immunity except in the legislative and judicial realms]?” ... The second and “more important” inquiry is whether the entity exercises a “function integral to state government.”
Coppage Construction Co., Inc. v. Sanitation District No. 1, 459 S.W.3d 855, 859
(Ky. 2015) (citing Comair, 295 S.W.3d at 99). We also recognize that “while the
state enjoys immunity from suit, a level of constraint must be exercised in its
application to other entities in order to respect both constitutional and
important public policy limitations.” Coppage, 459 S.W.3d at 859 (citations
omitted). However, even administering the test with such restraint, we hold
that LMHA is a governmental agency of the Commonwealth and is entitled to
the protection of governmental immunity.
6 B. LMHA is entitled to governmental immunity
In examining the Comair test, as well as historical and legislative points
on immunity and housing authorities, we hold that LMHA is a governmental
agency entitled to governmental immunity. First, its parent entity is Louisville
Metro, a government protected by sovereign immunity. The statutes portray
sufficient control for this prong of the Comair test to be met. Second, the
purpose of LMHA is a governmental one and it is integral to a state function.
Although many of the factors we consider in this determination are not as
clearly defined when examining LMHA, the legislative directive in creating
LMHA supports a holding that LMHA is shielded by governmental immunity.
a. State agency
“Whether an entity is a government agent is a threshold consideration in
governmental immunity analysis.” Jacobi v. Holbert, 553 S.W.3d 246, 252 (Ky.
2018) (quoting Caneyville Volunteer Fire Dept. v. Green’s Motorcycle Salvage,
Inc., 286 S.W.3d 790, 802 (Ky. 2009)). As we have made clear, governmental
immunity is an extension of the parent’s sovereign immunity. Here, LMHA was
explicitly created, according to statute, by Louisville Metro. “A county ‘is a
political subdivision of the Commonwealth as well, and as such is an arm of
the state government. It, too, is clothed with the same sovereign immunity’. . .
. Therefore, absent an explicit statutory waiver, Metro Government is entitled
to sovereign immunity.” Jewish Hospital Healthcare Services, Inc. v.
Louisville/Jefferson County Metro Government, 270 S.W.3d 904, 907 (Ky. App.
2008) (citing Cullinan v. Jefferson County, 418 S.W.2d 407, 408 (Ky. 1967),
7 overruled on other grounds by Yanero v. Davis, 65 S.W.3d 510, 527 (Ky. 2001)).
Louisville Metro, then, is clearly cloaked in sovereign immunity.
Bryant argues that the statutory framework through which LMHA
operates makes it a separate entity, and the immunity afforded to Louisville
Metro should not be expanded to encompass LMHA. However, there is
sufficient control authorized under KRS Chapter 80 to find a connection
adequate for this prong of the Comair test. The housing authority is
formulated pursuant to statute, with significant control by the Louisville Metro
mayor and approval by the Louisville Metro Council. See KRS 80.266(1). The
legislature prescribed the manner through which a housing authority can
contract for certain services. “No contract or agreement with any contractor for
the construction of low-income housing exceeding ten thousand dollars [] shall
be made without advertising for bids. The bids shall be opened publicly and an
award made to the best bidder, with power in the authority to reject any or all
bids.” KRS 80.130. The city attorney is statutorily authorized to conduct
condemnation proceedings for the housing authority and “the form and
manner of [such] proceedings shall be the same as that provided in the
Eminent Domain Act of Kentucky.” KRS 80.150. These statutes portray a
definitive, albeit more removed than other agencies of the government, control
from the legislative and executive branches over LMHA. This control is
sufficient to find that the first prong of the Comair test is met. LMHA is a
derivative agency of Louisville Metro.
8 b. Integral state function
The more important question, however, is whether LMHA is performing
an integral state function. “The question of whether an entity carries out an
integral state function has remained the primary focus of our sovereign
immunity analysis since at least the turn of the twentieth century.” Coppage,
459 S.W.3d at 862 (citing Comair, 295 S.W.3d at 99 (citing Gross v. Kentucky
Bd. of Managers of World’s Columbian Exposition, 49 S.W. 458 (Ky. 1899))).
This second prong of the Comair test “addresses two elements: whether the
entity’s function is ‘governmental’ as opposed to proprietary, and whether it is
a matter of ‘statewide’ concern.” Coppage, 459 S.W.3d at 862.
First, we must determine whether LMHA is functioning for a
governmental or proprietary purpose. “A state agency ‘is entitled to immunity
from tort liability to the extent that it is performing a governmental, as opposed
to a proprietary, function.”’ Jacobi, 553 S.W.3d at 252 (quoting Caneyville, 286
S.W.3d at 804 (quoting Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001) (citing
72 Am.Jur.2d, States, Territories and Dependencies, § 104 (1974)))). “A
proprietary function is of the type normally engaged in by businesses or
corporations and will likely include an element of conducting an activity for
profit.” Jacobi, 553 S.W.3d at 255 (quoting Caneyville, 286 S.W.3d at 804
(citing Schwindel v. Meade County, 113 S.W.3d 159, 168 (Ky. 2003))).
“A government agency’s immunity is limited to governmental tasks rather
than allowing it an unfair advantage when partaking in profit-seeking
ventures.” Jacobi, 553 S.W.3d at 255. Although the field in question may be
9 one where private businesses may profit, it does not necessarily mean that the
agency in question is performing the same task for the purpose of profit. See
id. at 255-56. In Jacobi, we held that, while attorneys in the private sector
work for profit, public defenders “are not at an unfair commercial advantage to
private attorneys; they are representing parties that would be unable to pay
attorneys in the private sector.” Id. at 256.
In Comair, this Court found the regulation of the Airport Board’s finances
persuasive in the immunity analysis. “[T]he Board is far more limited than a
private entity when setting the fees it charges for some of its services .... Since
the fees can only be ‘reasonable’ and are subject to judicial review, much like
an administrative agency’s decisions.” Comair, 295 S.W.3d at 102 (citing KRS
183.133(2)). “The Board is not a for-profit entity. Its revenues are to be used
solely to make improvements and to maintain the airport itself through
employees and contracts with construction and service providers.” Comair,
295 S.W.3d at 102.
Similarly to both Jacobi and Comair, the purpose of LMHA is not to
generate a profit. “The authority shall manage and operate its housing in an
efficient manner so as to enable it to fix the rentals for dwelling
accommodations at the lowest possible rates consistent with its providing
decent, safe and sanitary dwelling accommodations, and no authority shall
construct or operate any project for profit, or as a source of revenue of the city
...” KRS 80.190. The explicit purpose of LMHA is to provide housing for those
in our communities who would be otherwise unable to afford housing through
10 the private housing industiy. It is true that other companies and corporations
perform property management for the purpose of profit. But that is not
LMHA’s goal. LMHA provides an alternative for those who are unable to engage
with those private companies. LMHA is statutorily limited in setting rental
fees. It must provide “the lowest possible rates” consistent with the goal of
providing housing for low-income families and individuals. LMHA is not in
unfair competition with the private housing market. Like in Jacobi, it provides
an alternative for those people who are fiscally unable to engage in the private
market. Its fees and finances are regulated. Rather than operating to earn a
profit, the agency is solely operated to provide the housing that the General
Assembly has authorized. As such, we hold that LMHA is engaging in a
governmental, rather them a proprietary, function.
Determining whether a task is an “integral state function” is a complex
endeavor. “[N]ot every ‘public purpose’ qualifies as an ‘integral state function.”’
Coppage, 459 S.W.3d at 862. In Kentucky River Foothills Dev. Council, Inc. v.
Phirman, we noted that the goal of “alleviating] poverty ... is a laudable goal,
and it may even be integral to a state-at-large function.” 504 S.W.3d 11, 16-17
(Ky. 2016). However, in that case, we determined that the specific task at
issue—the running of a substance abuse treatment facility—was, although
tangential to poverty, not for the treatment of poverty, but substance abuse.
Id. at 17. “The fact that poverty and substance abuse may be and often are
related, does not make the primary purpose of Liberty Place the alleviation of
poverty.” Id. Here, in stark contrast, the entire purpose and mission of LMHA
11 is to provide housing for low-income individuals and families. It is common
knowledge that such provisions assist in the alleviation of homelessness, and
in turn, poverty. The availability of housing to meet the needs of lower-income
persons is a worthy and important goal. But it is up to this Court to determine
whether that goal is an integral state function.
“To qualify as ‘integral,’ [the entity]’s actions ‘must be necessary, an
essential part of carrying out that state-level government function.’” Transit
Authority of River City v. Bibelhauser, 432 S.W.3d 171, 174 (Ky. App. 2013)
(quoting Stanford v. United States, 948 F.Supp.2d 729, 737 (E.D. Ky. 2013)
(internal quotation marks omitted)). As we have recognized, there is a fine line
between “public purpose” and “integral state function.” However, the clarifying
point here derives from the General Assembly’s statements in creating housing
authorities. The General Assembly has conclusively established its motive and
statement of policy as to public housing:
It is hereby declared that there exist in Kentucky unsafe and unsanitary housing conditions and a shortage of safe and sanitary dwelling accommodations for persons of low income; that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities; and that the public interest requires the remedying of these conditions. It is further declared that the assistance provided in KRS 80.280 to 80.300 for the remedying of such conditions constitutes a public use and purpose and an essential governmental function for which public money may be spent and other aid given', that it is a proper public purpose for any public body to aid any housing authority located or operating within its boundaries or jurisdiction, as the public body derives immediate benefits and advantages from such a housing authority or developments; and that the provisions of KRS 80.280 to 80.300 are necessary in the public interest.
12 KRS 80.270 (emphasis added). The General Assembly added: “An authority
shall constitute a public body corporate and politic, exercising public and
essential governmental functions ...” KRS 80.500 (emphasis added).
“The enunciation of public policy is the domain of the General Assembly.”
Pyles v. Russell, 36 S.W.3d 365, 368 (Ky. 2000). Often, this Court must turn
to the legislative statement of public policy in making judicial determinations.
See generally Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997). “[A]bsent a
constitutional bar or command to the contrary, the General Assembly’s
pronouncements of public policy are controlling on the courts, as this Court
has ruled countless times.” Murphy v. Commonwealth, 500 S.W.3d 827, 832
(Ky. 2016) (quoting Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 296 (Ky. 2015)).
Although the question of whether an entity is immune is a judicial question,4
the question of whether a function is “integral” to the state can turn on the
question of public policy. The Commonwealth, through its General Assembly,
determines what priorities, responsibilities, duties, and functions the state
chooses to undertake. Thus, the General Assembly, to a certain extent, must
have the legislative prerogative to enunciate what is integral to the state’s
function. Granted, such a statement cannot be a broad, vague declaration
without proof in the actual record; otherwise, the immunity doctrine would
4 We note that “the judiciary has the sole ability to determine whether an entity is entitled to sovereign immunity[.]” Rothstein, 532 S.W.3d at 648 (citing Withers v. University of Kentucky, 939 S.W.2d 340, 342 (Ky. 1997)). But, “only the legislature can limit or waive that immunity once it has been determined.” Withers, 939 S.W.2d at 344 (citing Kentucky Centerfor the Arts v. Bems, 801 S.W.2d 327, 329 (Ky. 1991)).
13 become a legislative whim rather than a judicial determination. However, we
acknowledge, especially given the Commonwealth’s strong stance on the
doctrine of separation of powers,5 that the legislative statement of public policy
informs the judiciary’s decision of whether a function is essential, or integral, to
the administration of the Commonwealth.
Given this background, we further acknowledge that the General
Assembly created housing authorities to administer duties that it recognized as
essential and integral to the policy of the Commonwealth. LMHA was created
for fulfilling this statutory responsibility. It functions within Louisville Metro to
provide housing for low-income to moderate-income families and individuals.
Such a function is essential, per the policy of the General Assembly.
We must also determine whether the purpose of the entity is one of state
wide concern or merely a local prerogative. “The focus ... is on state level
governmental concerns that are common to all of the citizens of this state, even
though those concerns may be addressed by smaller geographic entities (e.g.,
by counties).” Comair, 295 S.W.3d at 99. “In other words, without [the agency]
performing its function, the state-level concern would not be fully addressed.”
Bibelhauser, 432 S.W.3d at 174 (citing Stanford, 948 F.Supp.2d at 739).
Although LMHA functions to serve a distinct, local area, it is intended to
5 It has been this Court’s view “that the separation of powers is fundamental to Kentucky’s tripartite system of government and must be ‘strictly construed.’” Vaughn v. Knopf, 895 S.W.2d 566, 568 (Ky. 1995) (quoting Legislative Research Commission v, Brown, 664 S.W.2d 907, 912 (Ky. 1984) (quoting Arnett v. Meredith, 121 S.W.2d 36, 38 (Ky. 1938))).
14 address a statewide concern. Once again, the General Assembly has spoken: it
stated that providing low to moderate-income housing is one of statewide
concern. See KRS 80.270. Thus, while LMHA provides services for Louisville
Metro customers only, but for its operation, the statewide “concern would not
be fully addressed.” LMHA works in tandem with housing authorities
throughout the Commonwealth to protect and provide assistance on this
statewide concern.
Bryant has also advanced the argument that the statutory language in
creating housing authorities impliedly waived any immunity it might have
otherwise had. Specifically, she cites to KRS 80.050, which states that a
housing authority constituted under the chapter is “a body corporate ... with
power to contract and be contracted with, to sue or be sued, and to adopt a
seal and alter it at will.” However, our Commonwealth’s highest courts have
previously held that such language does not waive immunity from tort. In
Wallace v. Laurel County Bd. of Educ., this Court’s predecessor held: “the right
given by the statute to sue an arm of the state . . . permitted suit against it on
contracts; or to protect one’s property; but such authority to sue did not
embrace an action for tort committed by any of its officers or agents in the
performance of a public duty.” 153 S.W.2d 915, 916-17 (Ky. 1941). In
Grayson County Bd. of Educ. v. Casey, this Court affirmed that holding: “(O]ur
predecessor court held that the ‘sue and be sued’ language in KRS 160.160(1)
authorizes suits on contracts or to protect one’s property, but not for torts.”
157 S.W.3d 201, 207 (Ky. 2005) (citing Wallace, 153 S.W.2d at 917).
15 Even were we to find this language murkier than prior manifestations of
our Court have, such language would be inadequate to waive immunity. “We
will find waiver only where stated ‘by the most express language or by such
overwhelming implications from the text as [will] leave no room for any other
reasonable construction.’” Withers v. University of Kentucky, 939 S.W.2d 340,
346 (Ky. 1997) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171
(1909)). “[T]he granting of waiver is a matter exclusively legislative.” Withers,
939 S.W.2d at 344. Thus, the bare language of “sue or be sued” is inadequate,
on its own, to exhibit a legislative intent to waive immunity on behalf of a
governmental agency.
In conclusion, LMHA is performing an integral state function. Its
services are provided for a governmental, rather than a proprietary, purpose.
The General Assembly has clearly articulated the Commonwealth’s policy
position on providing such housing. LMHA, although localized in specific
service, works to aid in the fulfillment of a statewide goal. The second prong of
the Comair element is met. As such, we hold that LMHA is entitled to
governmental immunity. The trial court correctly entered summary judgment
against Bryant on this issue.
C. Juanita Mitchell is entitled to official qualified immunity
Because we have held that LMHA is an immune entity, we must
determine whether Mitchell is, therefore, extended qualified official immunity
for her actions as a government employee. An immune agency’s “immunity
16 extends to its employees performing discretionary tasks.”6 Jacobi, 553 S.W.3d
at 261. “When performance of the job allows for the governmental employee to
make a judgment call, or set a policy, the fact that there is uncertainty as to
what acts will best fulfill the governmental purpose has resulted in immunity
being extended to those acts where the governmental employee must exercise
discretion.” Marson v. Thomason, 438 S.W.3d 292, 296 (Ky. 2014).
“[Discretionary acts or functions are those that necessarily require the exercise
of reason in the adaptation of means to an end, and discretion in determining
how or whether the act shall be done or the course pursued.” Haney v. Monsky,
311 S.W.3d 235, 240 (Ky. 2010).
An employee’s ministerial acts are not protected by immunity. Yanero v.
Davis, 65 S.W.3d 510, 522 (Ky. 2001). A ministerial act is “one that requires
only obedience to the orders of others, or when the officer’s duty is absolute,
certain, and imperative, involving merely execution of a specific act arising
from fixed and designated facts.” Id. (citing Franklin County v. Malone, 957
S.W.2d 195, 201 (Ky. 1997)). “In reality, a ministerial act or function is one
that the government employee must do “without regard to his or her own
judgment or opinion concerning the propriety of the act to be performed.”’
Marson, 438 S.W.3d at 297 (quoting 63C Am.Jur.2d Public Officers and
Employees § 318).
6 Additionally, those discretionary acts must be performed “in good faith” and “within the scope of the employee’s authority.” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001) (citations omitted). Bryant has never alleged that Mitchell was not acting in good faith or outside the scope of her employment.
17 Thus, the question before this Court is whether Mitchell’s act in failing to
pursue Love’s eviction after Love’s lease violations constitutes a ministerial or a
discretionary act.7 Bryant alleges both that (1) certain provisions of the lease
created ministerial duties for Mitchell to perform and (2) that even if those
duties were discretionaiy, once the decision to evict was made, it was Mitchell’s
ministerial duty to ensure that eviction came to fruition. Bryant argues that
the following lease provisions create a ministerial duty for Mitchell:
Section F(7):
The Resident is responsible to refrain from, and cause household members, guests, visitors and individuals in and around the unit by authority, permission or invitation of the Resident or the Resident household members to refrain from any conduct which: (a) Is unlawful, unsafe, irresponsible, disorderly or violent or a hazard to the safety of any persons or property, including Resident, household members, visitors, neighbors or Management staff; (b) Creates a nuisance or violates the City’s Unnecessary Noise Ordinance (Municipal Ordinance 132.04). (c) Is criminal activity that threatens the health and safety, or right to peaceful enjoyment of the premises of [LMHA] by Residents or employees of [LMHA].
Further, the lease provided at the end of Section F:
A single noncurable violation of any of the terms and conditions of Section F, RESPONSIBILITIES OF THE RESIDENT including but not limited to any drug-related or criminal activity by Resident, or Resident’s family members, guests, visitors, or individuals on LMHA property at the invitation of Resident or under the control of Resident shall be deemed a serious violation of material terms of this lease and good cause for termination of this residential lease without further opportunity to cure or remedy the violation.
7 Bryant also argued that Mitchell could not be immune because LMHA was not immune. However, because we have held that LMHA is an immune entity, this argument is now moot.
18 Section L(3) also stated:
Any criminal activity that threatens the health and safety or right to peaceful enjoyment of the Premises of [LMHA] by Residents or employees of [LMHA] or drug-related criminal activity on or off the premises, engaged in by a public housing tenant[,] any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of the tenancy.
Mitchell does not dispute that Love violated the terms of her lease and
specifically cited to Section F(7) in the warnings and notices sent to Love.
Thus, if the finding of that violation creates an absolute duty to evict, then the
act is ministerial, and Mitchell is not entitled to immunity. However, if Mitchell
still retained discretion in making the decision to evict, there is no ministerial
duty. The premise of Bryant’s argument is that the “shall” language is a
mandatory, and thus ministerial, duty once the provision of the lease has been
violated. But Bryant misinterprets the language of the lease.
Perhaps if the lease stated that any of these violations “shall result in
termination,” we may adopt Biyant’s interpretation. However, all the lease
states is that the violations in question “shall be deemed a serious violation of
material terms of this lease and good cause for termination” or “shall be cause
for termination of the tenancy.” This does not result in automatic eviction; it
only puts residents on notice that, should they violate these particular
provisions, LMHA has the contractual authority to immediately evict. It does
not create a mandatory duty for LMHA or Mitchell to evict; it provides them the
opportunity to do so.
Bryant correctly states that the term “shall” is usually interpreted as a
mandatory directive. See Seeger v. Lanham, 542 S.W.3d 286, 290 (Ky. 2018). 19 But “the rest of the sentence ... must be acknowledged.” Id. The word “shall”
is an auxiliary verb; it must be followed by another action. The reader must
ask: the subject shall what? Here, the violation shall: (1) “be deemed a serious
violation of material terms[;]” (2) be “good cause for termination of this
residential lease without further opportunity to cure or remedy the violation!;]”
and (3) “be cause for termination of the tenancy.” These directives can be
summed up as stating that these violations shall be deemed sufficient for
LMHA to make the decision to immediately evict. It does not place a
requirement upon the landlord to do so, however. The lease provisions allow
for the landlord and LMHA to make the final appropriate decision given the
specific facts. Due to this rather broad grant of discretion, we must hold that
the lease provisions do not create a ministerial duty and Mitchell was
performing discretionary tasks in making the decision of whether to evict Love.
Bryant also states that, once the decision to evict was made, Mitchell’s
task became ministerial. A discretionary act can become a ministerial one.
See Gaither v. Justice & Public Safety Cabinet, 447 S.W.3d 628, 632-37 (Ky.
2014). However, the record also belies this assertion. In Mitchell’s deposition,
plaintiffs counsel specifically asked: “So even though [the termination letter]
says no right to cure, they do have an opportunity to come and demonstrate a
willingness and an ability to comply with the lease?” Mitchell unequivocally
responded, “Yes ... That’s true.” In fact, Mitchell stated that, from the
procedure taken in response to Love’s 2008 violation, it seems Love cured the
violation even though she was sent a termination letter. Plaintiffs counsel also
20 asked whether there was an opportunity to cure a violation leading to a 14-day
termination letter. Mitchell stated, “They always have a right to cure. That’s
not up to me. When it crosses the desk, then that person, my supervisor, will
make that decision.” Counsel asked: “[D]oes the manager have the right to say
... I know they got the 14-day letter, they haven’t done anything to cure it, but
you know what; I like them; I’m not going to prepare the writ [of eviction] and
send it on?” Mitchell responded that “The supervisor always has that
privilege.” (emphasis added).
Per Mitchell, the first step in proceeding in the legal process for eviction
is for the manager to fill out a “Form A.” That form is sent to the supervisor,
then the director and executive director, and then eventually, the lawyers
become involved to initiate eviction proceedings. However, the decision to fill
out a “Form A” arises entirely from the property manager’s discretion and
decision-making. Counsel asked: “[Y]ou wouldn’t fill out a Form A[] unless you
thought you had sufficient proof that the person was guilty of what they were
guilty of, right?” Mitchell responded, “Correct.” Once again, the decision to
initiate the lengthy process for eviction begins with the property manager’s
ascertainment of the facts, investigation, and ultimate discretion in deciding
what action is appropriate. Even once the decision was made, Mitchell
responded affirmatively when asked whether she “had authority ... to stop the
eviction process if somebody cured their problems.”
Discretionary acts are “those involving the exercise of discretion and
judgment, or personal deliberation, decision, and judgment...” Sloas, 201
21 S.W.3d at 477 (quoting Yanero, 65 S.W.3d at 522). “Discretion in the manner
of the performance of an act arises when the act may be performed in one of
two or more ways, either of which would be lawful, and where it is left to the
will or judgment of the performer to determine in which way it shall be
performed.” Sloas, 201 S.W.3d at 477 (quoting Collins v. Commonwealth ofKy.
Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122, 125
(Ky. 1999) (quoting Malone, 957 S.W.2d at 201)). Mitchell was always
empowered with authority to decide what action was appropriate, change that
decision, change the course of action, stop the proceedings, etc. Her actions
were discretionary in nature. She is cloaked in qualified official immunity for
these decisions.
IV. CONCLUSION
The judgments of both the Jefferson County Circuit Court and Court of
Appeals are affirmed. LMHA is a state agency entitled to the protection of
governmental immunity. Mitchell, as LMHA’s employee performing
discretionary acts, is shielded by qualified official immunity. The circuit court
correctly entered summary judgment against Bryant.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ., sitting.
All concur.
22 COUNSEL FOR APPELLANT:
David J. Guarnieri Jason Hollon McBrayer, McGinnis, Leslie & Kirkland, PLLC
Robert Martin Guarnieri
COUNSEL FOR APPELLEES:
Patricia Colleen Le Meur John F. Parker, Jr. Nicholas Hart Phillips Parker Orberson 8s Arnett, PLC
Richard H. Nash, III Law Office of Richard H. Nash, III