Request By:
Miss Cattie Lou Miller
Executive Director
Board of Claims
113 E. Third Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion on behalf of the members of the Board of Claims as to whether there is liability on the part of the Commonwealth for the alleged negligent acts of public officials as separate from any liability there might be on the part of the officials themselves.
You accompanied your request with the complaint, which alleges that the claimant was arrested and tried with another defendant on the charge of first degree manslaughter, that he was found guilty and sentenced to 15 years in the penitentiary, that he appealed his conviction on the ground of several trial errors, and such conviction was reversed for new trial.
The complaint alleges that both the trial judge and the commonwealth attorney were negligent.
The complaint is against the Commonwealth and the individual judge and commonwealth attorney.
The Board of Claims Act, codified as KRS 44.070 through 44.160, is a legislative act which waives the sovereign immunity of the Commonwealth in a limited fashion.
In many states, the Doctrine of Sovereign Immunity is a judicial doctrine. What the court can give, it can take away.
However, in Kentucky, the doctrine is embedded in the Kentucky Constitution, Section 231, which provides:
"The general assembly may, by law, direct in what manner and in what court suits may be brought against the Commonwealth."
That section not only limits suits against the Commonwealth but also provides that any waiver or relinquishment must specify clearly in what manner and in what court the Commonwealth may be sued.
KRS 44.070 creates the board "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 departments or agencies, or any of its officers, agents or employees while acting within the scope of their employment by the Commonwealth or any of its departments or agencies. . . ."
There is no doubt that circuit judges and commonwealth attorneys are state officers. However, they operate in judicial districts. School board members are also state officers, but they too operate in separate districts.
At first blush, it would appear that this language might cover these officials, but several cases have interpreted the language differently.
In
Gnau v. Louisville & Jefferson County Metropolitan Sewer District, Ky., 346 S.W.2d 754 (1961), the Court of Appeals held that the sewer district was immune from suit and that sovereign immunity was not waived for that entity by the Board of Claims Act. The court held that the Act was meant to cover public agencies directly administered by the central state government.
Under the new Judicial Article amending the state constitution, all of the courts are under the supervision of the Supreme Court of Kentucky. However, that fact does not make circuit and district judges part of the central state government, although they are state officers, any more than local school board members (who are also state officers) are part of central state government.
The departemnts and agencies embodied in KRS 12.020
The departments and agencies embodied in KRS 12.020 would be those entities envisioned by KRS 44.070.
The claim against the "Commonwealth" does not refer to a particular agency or department that would meet the restrictive coverage of KRS 44.070.
Thus, the purpose of the Board of Claims Act is to waive the sovereign immunity of the state (not the individual immunity of its officers acting within the scope of their employment or office) in limited circumstances.
Suits or claims against individuals cannot be brought in the Board of Claims. They must be brought in other forums. See
Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 37 (1962).
Even in a circuit court or a federal court, claims cannot be brought for damages against a judge or a prosecutor for actions performed in the regular course of their judicial or prosecutorial duties. Those officers are cloaked with judicial immunity, which is an immunity in addition to the immunity of the sovereign. The Supreme Court of the United States has considered this question in
Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288 (1967)(Judges); and
Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128 (1976) (Prosecutors) , and as recently as March 28, 1978, in
Stump v. Sparkman, U.S., 55 L.E.2d 331, 98 S. Ct. .
Therefore, your agency should refuse to accept the tendered claim as not within the jurisdiction of the Board of Claims.