W.B. v. Commonwealth

Decision Date20 December 2012
Docket NumberNo. 2011–SC–000202–DG.,2011–SC–000202–DG.
Citation388 S.W.3d 108
PartiesW.B., An Adult Citizen of Jefferson County, Kentucky, Appellant. v. COMMONWEALTH of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, Department for Community Based Services, A Kentucky Administrative Agency, Appellees.
CourtUnited States State Supreme Court — District of Kentucky


J. Fox Demoisey, Demoisey Law Office, PLLC, Louisville, KY, for Appellant.

Erika Saylor, Cabinet for Health and Family Services, Louisville, KY, for Appellees.

Opinion of the Court by Justice VENTERS.

Appellant, W.B., an adult citizen residing in Jefferson County, Kentucky, appeals from a decision by the Court of Appeals which affirmed the Jefferson Circuit Court's denial of his Petition for a Declaration of Rights pursuant to KRS 418.040. The petition sought a declaration that the statutory and regulatory provisions associated with the Cabinet for Health and Family Services and its sub-unit the Department of Community Based Services' (DCBS) process for investigating allegations of child abuse are unconstitutional. He challenges also the constitutionality of the process whereby a social worker investigates and “substantiates” such allegations, the process for challenging a “substantiated” allegation, the failure of the process to provide for a jury trial, and the listing of the accused's name in a centralized database pursuant to this process. Appellant's KRS 418.040 petition thus presents a facial constitutional challenge to the Cabinet's administrative process, and the underlying administrative action is being held in abeyance pending the conclusion of the present proceeding. The trial court found the processes challenged by Appellant to be constitutional, and the Court of Appeals agreed.

We do not have before us an actual record of an administrative case contextualizing the operations of the statutory and regulatory process as it functions in day-to-day practice, which is the very nucleus of our review, and the absence of such a record unduly hinders our ability to review the constitutional issues presented. Therefore, based upon cautiously weighed prudential considerations, we conclude that this declaratory action is not ripe for our review at this time. Rather, we must await the conclusion of the administrative proceedings prior to our delving into the constitutional issues presented in this case.

Because we regard the issues presented in this case as not ripe for our review, we vacate the decision of the Court of Appeals and remand the cause to the Jefferson Circuit Court with directions that it hold this KRS 418.040 action in abeyance until the conclusion of the underlying administrative proceedings. The circuit court should then consider the present proceeding in light of the results obtained in the administrative case. We further instruct the Cabinet that, even if Appellant does not prevail in the administrative proceedings, it should not list his name in the centralized child abuse database until the conclusion of the KRS 418.040 proceedings we now abate. By that means, Appellant may fully complete his constitutional challenge to the administrative process before the listing of his name in a child abuse registry renders the review moot.


In August 2008, an unidentified caller to a hotline maintained by the Jefferson County DCBS reported an allegation that Appellant had sexually abused a minor child. DCBS referred the case to the Cabinet for investigation, which then assigned a social worker to do the actual inquiry pursuant to Cabinet regulations. See922 KAR 1:330 § –9.1 Pursuant to the procedure set out in 922 KAR 1:330, an investigation was initiated, and on September 4, 2008, a forensic interview was conducted by the Jamestown Advocacy Center, at which time the alleged victim and the victim's siblings were interviewed. The interviews were recorded by video. On the same day a police detective interviewed the child's mother and father; a detective similarly interviewed Appellant regarding the allegation about three weeks later. It is worth noting that, so far as we can tell, no criminal charges have yet been brought against Appellant as a result of the police investigation into the allegations.

Following the completion of the social worker's investigation, which Appellant alleges he was given no opportunity to participate in, the social worker concluded that the allegation of sexual abuse was “substantiated” (meaning established by a preponderance of the evidence) pursuant to 922 KAR 1:330 § 1(9).2 Appellant was advised by the Cabinet of the result of the investigation by letter dated December 8, 2008, as well as his right to appeal the determination. Id. at § 9(5). Absent an overturning of the Cabinet's finding substantiating the allegation pursuant to the appeals process, the sanction to be imposed against Appellant will be the entry of his name into the Cabinet's central registry pursuant to 922 KAR 1:470.3

Pursuant to 922 KAR 1:330 § 10(1), Appellant gave notice of his intent to appeal the Cabinet's finding substantiating the allegation. This provision provides for an administrative hearing, culminating in the issuance of a final order by the Commissioner of DCBS. Section 10(3) of the regulation further provides, if necessary, for an additional appeal to the circuit court pursuant to the normal administrative appeals provisions of KRS 13B.140 and KRS 13B.150. The administrative proceedings, however, are now in abeyance pending conclusion of this proceeding.

In coordination with his administrative appeal, and as a second line of attack upon the underlying allegation, Appellant filed a complaint in Jefferson Circuit Court, the present action, which, though not specifically denominated as a declaratory judgment action pursuant to KRS 418.040, has been uniformly treated as such by the parties and courts in the proceedings below, and so we, too, follow this nomenclature.

In his declaratory action, Appellant challenged the constitutionality of the several statutes and regulations providing for how the Cabinet substantiates allegations of child abuse and how an accused may contest and appeal that substantiation.4 Appellant asserted that the United States and Kentucky Constitutions both recognize and protect his interest in his reputation; that having his name placed on Kentucky's registry of substantiated child abusers would affect that interest; and that procedural due process entitled him, at the administrative level, to have a jury decide whether the allegation of child abuse was substantiated by a preponderance of evidence. Appellant also raised other procedural due process grounds. More specifically, Appellant argued that (1) the applicable law and procedures relating to how the Cabinet substantiates child abuse allegations impermissibly shift the burden of proof to him; (2) the results of those proceedings could impact criminal or civil proceedings that might be filed in the future; (3) the applicable procedures denied him certain videotapes of the interviews that DCBS conducted with the minor child and others which it used as a basis to substantiate the alleged abuse; (4) the procedure denied him the right to have the child evaluated in an effort to test the credibility of the child's accusations; (5) the procedure violated the separation of powers doctrine by allowing a circuit court to uphold the final administrative determination upon a finding that it was based on “substantial evidence” as opposed to a “preponderance of the evidence”; and that (6) the procedure was otherwise arbitrary and capricious.

In its own review of this matter, the Jefferson Circuit Court upheld the constitutionality of the statutes, regulations, and appellate procedures in question, and, in a January 25, 2010 order, the circuit court dismissed Appellant's declaratory judgment petition pursuant to CR 12.02(f) for failure to state a claim upon which relief could be granted.

The Court of Appeals affirmed the circuit court's determinations. We granted discretionary review to further examine to the constitutional issues presented. However, as further discussed below, due to the absence of an administrative record to provide context for our examination of the functioning, of the process under challenge, we will exercise our discretionary authority to decline to review the issues presented at this time based upon prudential ripeness considerations, and will instead await the conclusion of the administrative process before delving into the substantial constitutional issues presented for our review.


This case presents a situation where a defendant in an administrative action has interrupted the administrative process by way of a declaratory judgment action and diverted the main proceedings into the judicial system so as to challenge the very functioning and legality of the administrative proceedings already underway. KRS 418.040 provides as follows:

In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of rights, whether or not consequential relief is or could be asked.

However, KRS 418.065 clearly anticipates that there will be occasions when it will not be best to address the controversy at the time of the petition, and so authorizes the courts to defer consideration until the circumstances are more favorable for a resolution of the issue presented:

The court may refuse to exercise the power to declare rights, duties or other legal relations in any case where a decision under it would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary or proper...

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