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Court of Appeals of Kentucky.


NO. 2011–CA–002161–MR

Decided: May 31, 2013

BEFORE:  ACREE, CHIEF JUDGE;  KELLER Double s AND MAZE, JUDGES. BRIEF FOR APPELLANT:  Edward E. Dove Lexington, Kentucky BRIEF FOR APPELLEE, COMMONWEALTH OF KENTUCKY, BOARD OF CLAIMS:  Jack Conway Attorney General of Kentucky Aaron S. Ament Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE, ADMINISTRATIVE OFFICE OF COURTS:  No Brief Filed



Kenya Reynolds (Reynolds) filed an action in the Board of Claims (the Board) for wrongful imprisonment.   The Board found that it did not have jurisdiction and dismissed Reynolds's action.   Reynolds timely filed a complaint in circuit court challenging the Board's dismissal.   The court affirmed the Board and Reynolds filed this appeal arguing that the Board has jurisdiction over wrongful imprisonment claims.   The Board argues to the contrary. Double Having reviewed the record, we affirm.


The facts in this case are not in dispute.   In February 1997, a Jefferson Circuit Court judge sentenced Reynolds for theft by deception over $300 and probated her sentence for five years.   On December 8, 2003, more than a year after the five-year probationary period had expired, that same judge entered an order revoking Reynolds's probation and sentencing her to six years' imprisonment.   It appears that Reynolds's conduct which led to the revocation of her probation occurred during the probationary period.   However, it is unclear from the record why the revocation hearing did not take place until after Reynolds's probationary period expired.

In an unrelated case, a divided panel of this Court determined in 2006 that the circuit court lost jurisdiction to revoke probation after the probationary period had expired.   Huffines v. Commonwealth, 2005–CA–001033–MR, 2006 WL 1652868 (Ky.App. June 16, 2006).   The Commonwealth appealed Huffines to the Supreme Court of Kentucky.   The Supreme Court “granted discretionary review, but never issued an opinion resolving the issue because the justices were evenly divided;  thus [the] Court affirmed the opinion of the Court of Appeals by way of a bare order pursuant to [Rule of the Supreme Court] SCR 1.020(1)(a).”   See Conrad v. Evridge, 315 S.W.3d 313, 316 (Ky.2010) (footnote omitted).   The Court of Appeals's opinion in Huffines became final on February 4, 2008.

In October 2008, a judge from the Shelby Circuit Court held that the 2003 Jefferson Circuit Court order revoking Reynolds's probation was void, and he ordered Reynolds's release from incarceration. Double On July 28, 2009, Reynolds filed an action in the Board of Claims alleging that the Jefferson Circuit Court judge breached his “duty not to exceed his lawful jurisdiction” when he revoked Reynolds's probation.   The Board dismissed Reynolds's claim finding that “[r]ecovery for wrongful imprisonment is simply not contemplated in the Board of Claims Act.” Reynolds then filed a complaint in Franklin Circuit Court challenging the Board's dismissal of her claim.   The Franklin Circuit Court affirmed the Board's dismissal of Reynolds's claim finding as follows:

[T]he Board is without statutory authority to render an award for an alleged wrongful incarceration.   The Board's authority rests strictly in the “power ․ to ․ compensate persons for damages sustained either to person or property as a proximate result of negligence on the part of the Commonwealth․”  KRS [Kentucky Revised Statute] 44.070(1).   The Court holds that the loss of freedom suffered by [Reynolds] falls outside the scope of this jurisdictional provision.

It is from this order that Reynolds appeals.


Whether the Board has jurisdiction is a question of law, which we review de novo.   See Hinners v. Robey, 336 S.W.3d 891 (Ky.2011).


KRS 44.070(1) provides that the Board has the

power and authority to investigate, hear proof, and to compensate persons for damages sustained to either person or property as a proximate result of negligence on the part of the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any of its officers, agents, or employees while acting within the scope of their employment․

However, the Board's jurisdiction with regard to claims involving the decisions made by circuit court judges is limited to negligent performance of ministerial acts.   That jurisdiction does not extend to discretionary acts.   KRS 44.073(2);  Greene v. Commonwealth, 349 S.W.3d 892, 906 (Ky.2011).   Ministerial acts involve the performance of merely routine duties while discretionary acts involve the exercise of judgment in choosing which of several courses to follow.   See Collins v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet, 10 S.W.3d 122, 126 (Ky.1999).

In determining whether to revoke Reynolds's probation the Jefferson Circuit Court judge was required to make several choices—whether he continued to have jurisdiction following expiration of the probationary period;  whether Reynolds's actions violated the terms of her probation;  and, ultimately, whether to revoke her probation.   Making such choices is not ministerial but rather it is the essence of discretionary action.   Therefore, we discern no error in the Board's dismissal of Reynolds's claim or in the court's affirmation of that dismissal.

Having made the preceding holding, we need not address Reynolds's argument that the damages she sought are within the purview of the Board's jurisdiction.   Furthermore, we need not address the parties' arguments that wrongful imprisonment claims either are or are not, by their nature, within the Board's jurisdiction.   Because it is not necessary for us to address those arguments in order to resolve this matter, we refrain from doing so.


The acts complained of were discretionary;  therefore, the Board and the circuit court correctly determined that the Board lacked jurisdiction.   Therefore, we affirm.