Fisher v. Kentucky Unemployment Ins. Com'n

• Decision Date: 29 April 1994
• Docket Number: No. 92-CA-2216-S,92-CA-2216-S
• Citation: 880 S.W.2d 891
• Parties: Janet L. FISHER, Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and Corbin, Ltd., Appellees.
• Court: Kentucky Court of Appeals

Page 891

880 S.W.2d 891

Janet L. FISHER, Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and Corbin, Ltd. Appellees.

No. 92-CA-2216-S.

Court of Appeals of Kentucky.

April 29, 1994 Discretionary Review Denied by Supreme Court Aug. 24, 1994.

Michael J. Curtis, Ashland, for appellant.

J. William Hernandez, Cabinet for Human Resources, Frankfort, for appellee Kentucky Unemployment Ins. Com'n.

Pamela H. Potter, Vanantwerp, Monge, Jones & Edwards, Ashland, for appellee Corbin, Ltd.

Before HUDDLESTON, JOHNSTONE and SCHRODER, JJ.

JOHNSTONE, Judge.

The question is whether an attorney's signature on a petition for review is sufficient compliance with the "verified complaint" requirement of KRS 341.450 to confer jurisdiction on the circuit court. Because we find this case indistinguishable from the situation addressed in Monyhan v. Kentucky Unemployment Insurance Commission, Ky.App., 709 S.W.2d 837 (1986), we are constrained to concur in the decision of the circuit judge that it is not.

The facts of this case are simple and undisputed. Janet L. Fisher sought review in the Boyd Circuit Court of a decision by the Kentucky Unemployment Commission denying her claim for benefits. Upon the motion of Corbin, Ltd., her former employer, the circuit court dismissed the appeal for failure to verify her complaint as required by KRS 341.450(1). In her appeal to this Court, Ms Fisher argues that her attorney's signature on the complaint sufficiently complies with the statutory mandate and that her complaint must, therefore, be reinstated. In the alternative, she asserts that she should be granted leave to amend the petition for review. We cannot agree.

While we are not unsympathetic to appellant's argument, we are simply unable to distinguish appellant's plight from that which was found to be fatal in Pickhart v. United States Post Office, Ky.App., 664 S.W.2d 939 (1983), and Monyhan, supra. The Court in Pickhart adhered to the long-standing principle that statutes providing for judicial review of the decisions of administrative agencies are to be strictly observed. This view fully comports with the rationale utilized by our Supreme Court in rejecting a claim of substantial compliance in Kentucky Unemployment Insurance Commission v. Carter, Ky., 689 S.W.2d 360, 361-362 (1985):

It is argued by Carter that the mentioning of the employer (even though by an erroneous name) in the recitation of facts and the mailing of a copy of the complaint to the employer's attorney created substantial compliance with the statute. Even if we agreed with the claim, we find no authority before the court to authorize the doctrine of substantial compliance in a case where the appeal process is statutorily created and implemented. In the case of Board of Adjustments of City of Richmond v. Flood, Ky., 581 S.W.2d 1 (1978), the plaintiffs sought judicial review of the decision of the Board of Adjustment, under the aegis of a specific statute KRS 100.347. In direct violation of the terms of that statute, plaintiffs failed to name the Planning and Zoning Commission as a party defendant in their complaint. In ruling that the complaint was to be dismissed for want of jurisdiction, viz., failure to name all parties, we said:

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. Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corporation, Ky., 361 S.W.2d 300 (1962); Roberts v. Watts, Ky., 258 S.W.2d 513 (1953).... (Emphasis original).

Appellant suggests that this reasoning does not apply to her situation because the shortcoming in her petition was merely ministerial in nature, clearly distinguishable from the omission of an indispensable party. That argument, espoused by the dissent in Pickhart, is certainly not without appeal. Unfortunately, that is not the holding in Pickhart which unequivocally declares the verification requirement to be mandatory and jurisdictional.

We perceive our duty as an intermediate appellate court as binding us to defer to principles well established in Kentucky case law. That concept is, in our opinion, basic to a system of jurisprudence founded upon the doctrine of stare decisis. Whatever our view of the advisability of the policy set out in that precedent, we are precluded from simply choosing not to follow the law.

The judgment of the Boyd Circuit Court is affirmed.

SCHRODER, J., concurs.

HUDDLESTON, J., dissents by separate opinion.

HUDDLESTON, Judge, dissenting.

Respectfully, I dissent. Pursuant to Ky.Rev.Stat. (KRS) 341.450, an aggrieved former employee may seek judicial review of a Kentucky Unemployment Insurance Commission decision by filing a verified complaint against the Commission and his or her employer in the circuit court of the county in which the claimant was last employed. Janet L. Fisher sought review of the Commission's order denying her unemployment insurance benefits in Boyd Circuit Court. Upon the motion of Corbin, Ltd., the circuit court dismissed Fisher's appeal for failure to verify her complaint. On appeal to this Court, Fisher argues that she sufficiently complied with the statute when her attorney signed the complaint. Fisher asks that her petition be reinstated or, in the alternative, that the circuit court be directed to grant her leave to amend her complaint to supply the missing verification.

While pleadings need not be verified under Rule 11 of the Kentucky Rules of Civil Procedure (CR) "[e]xcept when otherwise specifically provided by Rule or statute," KRS 341.450(1) specifically requires verification of complaints filed against the Commission:

[W]ithin twenty (20) days after the date of the decision of the commission, any party aggrieved thereby may, after exhausting his remedies before the commission, secure judicial review thereof by filing a complaint against the commission in the circuit court of the county in which the claimant was last employed.... The complaint shall state fully the grounds upon which review is sought, assign all errors relied on, and shall be verified by the plaintiff or his attorney. (Emphasis supplied.)

This Court addressed the verified complaint requirement in Pickhart v. United States Post Office, Ky.App., 664 S.W.2d 939 (1983) and in Monyhan v. Kentucky Unemployment Ins. Comm'n, Ky.App., 709 S.W.2d 837 (1986) ¹. In both cases, the circuit court dismissed a claimant's appeal for failure to file a verified complaint. This Court held that "the failure of a party to strictly comply with the mandatory provisions of a statute authorizing an appeal from an administrative agency is jurisdictional." Pickhart, 664 S.W.2d at 940; see also Monyhan, 709 S.W.2d at 837. Jurisdictional defects require dismissal of an appeal. Pickhart, 664 S.W.2d at 940; Monyhan, 709 S.W.2d at 837.

Statutes that provide for judicial review of the decisions of administrative agencies must be strictly observed. "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." Kentucky Unemployment Ins. Comm'n v. Carter, Ky., 689 S.W.2d 360, 362 (1985) (citing Board of Adjustments of City of Richmond v. Flood, Ky., 581 S.W.2d 1, 2 (1978)). Undoubtedly, under this long-established principle of law, parties seeking appellate review of Commission decisions must comply with the requirements of KRS 341.450.

Fisher argues that the signature of her attorney sufficiently complies with the statute. Fisher claims that the attorney's signature in effect "verified" the contents of the complaint and thus it lacked only the recital of a formal oath. Under CR 11 "[t]he signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact...." KRS 341.450(1) provides that a claimant's attorney may verify the complaint. Because an attorney ordinarily does not have personal knowledge of the allegations made in a complaint, he can only attest that he has undertaken a reasonable investigation of the facts and that the allegations are true to the best of his knowledge, information and belief. Verification by Fisher's attorney would have added nothing more than his signature currently represents under CR 11.

Supporting her argument of sufficient compliance, Fisher cites Shamrock Coal Co., Inc. v. Taylor, Ky.App., 697 S.W.2d 952 (1985), in which this Court found that "a clear attempt at verification" constituted "sufficient compliance" with KRS 341.450(1). The complaint in Shamrock also lacked an oath. It is unclear from the Court's opinion in Shamrock how the complaint failed to include an oath, yet sufficiently complied with the statute. Due to the lack of a more specific description of the defect by the Court in Shamrock, it is impossible to discern whether Fisher's complaint would constitute "sufficient compliance" with KRS 341.450(1). Unfortunately, the Court's ruling in Shamrock does not assist in evaluating Fisher's compliance with the statute.

Furthermore, the Kentucky Supreme Court, also interpreting KRS 341.450(1) in Carter, 689 S.W.2d at 361, found "no authority before the court to authorize the doctrine of substantial compliance in a case where the appeal process is statutorily created and implemented." The rulings of Shamrock and Carter seem to conflict. Shamrock allows sufficient compliance; Carter disallows substantial compliance. Due to the ambiguity of Shamrock, the ruling in Carter provides a clearer mandate which is that the...