RENDERED: SEPTEMBER 22, 2011 

UBLISHED 

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2007-SC-000511-DG A7r" U 

PATRICIA GREENE, THELMA CORNELIUS, APPELLANTS 

SANDY WOOD JOHNSON, ANNA PERKINS, 

DEAN WOOD, DOROTHY WOOD, 

LORELLA WOOD AND JOHN C. WOOD 

ON REVIEW FROM COURT OF APPEALS 

V. CASE NO. 2006-CA-000683-MR 

FRANKLIN CIRCUIT COURT NO. 04-CI-00353 

COMMONWEALTH OF KENTUCKY, 

ADMINISTRATIVE OFFICE OF THE COURTS; 

HONORABLE JERRY WINCHESTER, JUDGE 

OF MCCREARY CIRCUIT COURT; 

CHARLES E. KING; AND KENTUCKY BOARD OF CLAIMS 

APPELLEES 

AND 

2008-SC-000783-DG 

COMMONWEALTH OF KENTUCKY, CROSS-APPELLANT 

ADMINISTRATIVE OFFICE OF THE COURTS 

ON REVIEW FROM COURT OF APPEALS 

CASE NO. 2006-CA-000683-MR 

FRANKLIN CIRCUIT COURT NO. 04-CI-00353 

PATRICIA GREENE, THELMA CORNELIUS, 

SANDY WOOD JOHNSON, ANNA PERKINS, 

DEAN WOOD, DOROTHY WOOD, 

LORELLA WOOD, JOHN C. WOOD, 

HONORABLE JERRY WINCHESTER, JUDGE 

OF MCCREARY CIRCUIT COURT; 

CHARLES E. KING; AND KENTUCKY BOARD OF CLAIMS 

CROSS-APPELLEES 
OPINION OF THE COURT BY SPECIAL JUSTICE RHOADS 

REVERSING 

This action is before the Court on discretionary review of whether the 

Board of Claims had jurisdiction over the Appellants' claims brought against 

Appellees pursuant to the Kentucky Board of Claims Act, KRS 44.070, et. seq. 

Appellants consist of a group of heirs who were entitled to receive the net 

proceeds of a judicial sale of four tracts of land previously owned by John and 

Zola Wood. For reasons explained hereafter, the net proceeds of the judicial 

sale were never distributed to Appellants, resulting in the Appellants filing 

claims against Appellees in the Board of Claims. Appellees are (i) Charles E. 

King, former master commissioner of the McCreary Circuit Court ("King"); (ii) 

Circuit Judge Jerry Winchester of the McCreary Circuit Court ("Judge 

Winchester"); and (iii) Kentucky's Administrative Office of the Courts (the 

"AOC"). 

The Board of Claims (the "Board") entered a final order dismissing 

Appellants' claims for lack of jurisdiction. The Franklin Circuit Court and the 

Court of Appeals affirmed. This Court now reverses for the reasons set forth in 

this opinion. 

I. Background 

On May 11, 1987, Judge Winchester appointed King as the master 

commissioner for McCreary County pursuant to KRS 31A.010. A master 

commissioner serves at the pleasure of the circuit judge, except that no term of 

appointment shall exceed four years without reappointment by the circuit 

2 
judge. KRS 31A.010(3)(a). KRS 31A.020 requires that the master 

commissioner execute a bond with surety approved by the court (i.e., the 

circuit judge). In this case, at the time of Judge Winchester's appointment of 

King, Judge Winchester ordered that King execute a bond in the amount of 

$25,000.00, which King did. 

At the end of the four-year term, Judge Winchester did not reappoint 

King as master commissioner, nor did he appoint anyone else to the office. 

Nevertheless, King continued to act as, and was treated by Judge Winchester 

as the master commissioner for the ensuing period of more than ten years. In 

essence, King was acting as the de facto master commissioner for McCreary 

County when the events which gave rise to this matter transpired. 

On August 19, 2002, Judge Winchester, in the course of a proceeding 

before the McCreary Circuit Court, ordered King, as master commissioner, to 

conduct a judicial sale of four tracts of land so that the proceeds could be 

distributed among the Appellants. King proceeded to sell the property at 

auction on September 21, 2002 for $234,600. King's Report of Sale dated 

October 11, 2002, was approved and confirmed by the McCreary Circuit Court 

on October 22, 2002. The court, on January 2, 2003, approved an itemization 

of disbursements, which included administrative fees and costs, the amounts 

due to the respective heirs. The court's order also directed King to distribute 

the proceeds of the sale in accordance with the itemization. King did not 

comply, and therefore, the court ordered King to make an immediate 

3 
distribution of the proceeds by an order entered on January 21, 2003. King, 

however, never made any disbursement. 

As a result of King's failure to disburse the proceeds pursuant to his 

orders, Judge Winchester ordered an accounting of King's funds. An 

investigation revealed that "[w]hile acting as Master Commissioner for 

McCreary Circuit Court, King misappropriated the proceeds from numerous 

separate sales by transferring funds from the Master Commissioner's account 

to his own personal account instead of to the rightful beneficiaries. The 

aggregate value of the misappropriated funds exceeded $300,000." King v. 

Kentucky Bar Ass'n, 162 S.W.3d 462, 462 (Ky. 2005). 

King's wrongs were not without additional consequences. Numerous 

criminal charges were filed against him, and in 2005, he pleaded guilty to 132 

counts of theft by failure to make required disposition of property valued at 

over $300. This, in turn, led this Court to permanently disbar King later that 

same year. Id. 

In the interim, Appellants each filed substantially identical claims with 

the Board of Claims naming King and Judge Winchester as the state actors, 

and the AOC as the state agency on August 11, 2003. 1The Board of Claims 

consolidated the claims into a single action by an order entered on October 16, 

2003. 

1 The ultimate fate of the funds misappropriated by King is not clear from the 

record. The claims filed by Appellants at the Board of Claims state that "lilt appears 

that the funds are no longer available." Presumably, the flinds have been dissipated. 
A. Allegations Regarding the AOC at the Board of Claims Level 

Appellants and Appellees have made various allegations regarding the 

designation of King and Judge Winchester as employees of the AOC. Although 

the Court does not consider the resolution of this appeal to turn upon which 

party either first or more emphatically asserted that King and Judge 

Winchester were employees of the AOC, the Court briefly sifts through the 

competing allegations because the parties expend considerable effort in arguing 

the point. Further, some discussion of the issue may clarify the principles 

which are dispositive of this appeal. 

Appellants assert that their claims "were filed against the Commonwealth 

based on its waiver of immunity through the Board of Claims Act for King's and 

Judge Winchester's failure to perform the duties of their official capacities." 

(Emphasis added.) The claim forms submitted by Appellants, which they 

maintain were provided to them by the Board, included a section designated 

"Name of State Agency involved with the incident (employee's name, if known)." 

Appellants, in their completion of the form, stated: 

Administrative Office of the Court [sic] 

1) Charles E. King former Master Commissioner of the 

McCreary Circuit Court 

2) Judge Jerry Winchester of the McCreary Circuit Court 

(Emphasis added.) 

Appellants point to the Board's responses to the claims on September 15, 

2003, which stated that la] copy of your claim and all of the information you 

have provided the Board is being forwarded to the Administrative Office of the 

Courts." The record establishes that the Board directed a letter to the AOC on 

5 
that same date assigning the claim to the AOC, with the Board directing that 

"[y]our agency shall file its answer with the board and shall submit a copy of 

the answer to the claimant." AOC answered the consolidated claims of the 

heirs on October 10, 2003. 

For its part, the AOC argues that various statements identified in its own 

filings were merely recognitions of the Appellants' filings and that "[t]he 

suggestion that King and Winchester were employed by AOC originated entirely 

from the Appellants, not from AOC." Appellants retort that, as an example of 

the AOC's acknowledgement that it was the employer of King and Judge 

Winchester, the AOC, in its Answer, pleaded that "this pleading is filed on 

behalf of [Judge Winchester and King] and their state employer, AOC." 

It should suffice to say that both parties have made allegations in claim 

forms or pleadings which allege explicitly or implicitly that the AOC is the 

employer of King and Judge Winchester. Regardless, the Court does not 

consider these arguments to contribute toward its decision of this case. For 

the reasons stated hereafter, the Court looks to the Kentucky Constitution and 

relevant statutes for its determination regarding whether Judge Winchester is 

an employee of the AOC, and finds that the factual circumstances of the case 

make a decision on this point regarding King moot and unnecessary. 

B. The Board of Claims Decision 

The AOC, after filing its answer with the Board of Claims, moved the 

Board to grant summary judgment, arguing that the Appellants had failed to 

state a claim for which relief could be granted. The AOC's failure-to-state-a6 
claim argument was that the judge's failure to reappoint the master 

commissioner could not have caused the injury complained of and that the 

judge had no obligation to ensure that the master commissioner's bond was 

sufficient to cover the complete value of all properties that he sold. The AOC, 

in its argument based upon jurisdiction, contended that King, Judge 

Winchester, and the AOC were all engaged in judicial or quasi-judicial 

functions' for which no liability can exist because such functions are entitled to 

absolute immunity. 

The. Board granted the AOC's motion for summary judgment, stating that 

the Appellants' claims were "dismissed for failure to state a claim upon which 

relief can be granted within the Board of Claims Act at KRS Chapter 44. 

Therefore, the Board of Claims lacks jurisdiction in this matter." The Board's 

order was summary, consisting almost entirely of the language quoted here 

and without substantive explanation for its holding that there was no 

jurisdiction. 

C. The Appeal to and Decision of the Franklin Circuit Court 

The Appellants sought review in the Franklin Circuit Court which 

affirmed the decision of the Board of Claims. The circuit court noted that, in 

Horn by Horn v. Commonwealth, 916 S.W.2d 173 (Ky. 1996), although the AOC 

was found to be subject to suit in the Board of Claims, its court-designated 

worker was entitled to quasi-judicial immunity because she was "acting within 

the scope of her employment and under the direction of a judge of the court." 

Id. at 176. The circuit court stated that "Winchester is a court-designated 

7 
worker, thus both King and AOC are entitled to immunity." 2The circuit court 

held that Judge Winchester was "also" entitled to judicial immunity for his 

failure to reappoint the master commissioner and to set a sufficient bond 

because those were judicial acts for which he had immunity under Vaughn v. 

Webb, 911 S.W.2d 273 (Ky. App. 1995). 

D. The Appeal to and Decision of the Court of Appeals 

The Appellants appealed the decision of the Franklin Circuit Court to the 

Court of Appeals, which affirmed. The Court of Appeals' decision was, 

however, at some variance with the decision of the Franklin Circuit Court. As 

noted, the Franklin Circuit Court had held that quasi-judicial immunity barred 

the defendants from being subject to suit in the Board of Claims. The Court of 

Appeals observed that the circuit court had "cited judicial immunity as its 

basis for upholding the dismissal of appellants' claims." The Court of Appeals, 

however, held that the dismissal of the suit in the Board of Claims "was 

required for the more fundamental reason that neither Judge Winchester nor 

King can be considered employees of AOC." The Court of Appeals stated that, 

while Horn established that the Board of Claims Act encompassed the AOC, the 

individual at issue in Horn was an employee of the AOC, whereas King and 

Judge Winchester were not. 

2 The circuit court's reference to Judge Winchester as a "court-designated 

worker," has every indication of being a transcription error, since the court-designated 

worker analogy, to any extent that it can be applied to this case, would almost 

certainly apply to the master commissioner. This appears to have been the circuit 

court's intent, as it went on to separately state that Judge Winchester "also" had 

immunity in the following paragraphs. 

8 
The Court of Appeals also drew a distinction between sovereign immunity 

and judicial immunity: The court stated that the Board of Claims Act effected 

a limited waiver of sovereign immunity, but that the Act did not effect any 

waiver of the "entirely distinct" concept of judicial immunity. The court 

concluded that "because of that critical distinction," the judge and master 

commissioner were not subject to the jurisdiction of the Board of Claims. 

Lastly, the court commented that the Appellants were not without a remedy 

because they could pursue a civil claim against King since his criminal acts 

were outside the scope of his duties as master commissioner, removing any 

immunity that he might otherwise enjoy. 

This Court subsequently accepted discretionary review to determine 

whether the Board of Claims properly dismissed the Appellants' action for lack 

of jurisdiction. 

II. Analysis 

The Appellants raise a number of arguments in support of their appeal. 

Each of Appellants' arguments is grounded in their basic position that their 

claims were properly brought in the Board of Claims. In support of this 

argument, Appellants contend that ( ) the issue of whether King and 

Winchester were employees of the AOC cannot be raised for the first time on 

appeal; (ii) Appellants filed their claims in accordance with the pertinent 

statutes and regulations; (iii) the AOC is the proper entity to defend negligence 

claims against a judge and master commissioner in the Board of Claims; and 

(iv) even if King and Judge Winchester are not employees of the AOC, they are 
"officers, agents, or employees of the Commonwealth" and, therefore, are 

amenable to suits for negligence in the Board of Claims. Appellants also argue 

that neither King nor Judge Winchester are protected by judicial or quasijudicial immunity from suit in the Board of Claims because Appellants' claims 

are founded in negligence in the performance of ministerial duties for which 

sovereign immunity has been waived by the Board of Claims Act. 

The AOC's response primarily consists of the argument that the circuit 

judge and master commissioner are not employees of the AOC. The AOC, 

however, also cross-appealed and argues alternative grounds to affirm. The 

AOC's arguments include that to allow the Board of Claims jurisdiction over 

claims of negligence against circuit judges or any component of the Court of 

Justice (of which circuit courts are a. part) would violate the doctrine of the 

separation of powers. The AOC also argues that the waiver of sovereign 

immunity in the Board of Claims Act is ambiguous as to whether such waiver 

extends to include the AOC. The AOC argues that Appellants failed to state a 

claim that can be proven against the AOC. And, finally, the AOC argues that 

the Appellants' allegations include only intentional acts, not negligence, for 

which sovereign immunity has been waived, and thus, there is no jurisdiction 

in the Board of Claims. 

The Board of Claims' decision did not include any findings of fact, but 

rather dismissed the Appellants' claims for failure to state a claim and lack of 

jurisdiction. Under these circumstances, this Court's review primarily involves 

the interpretation of sections of the Constitution and statutes. Therefore, this 

1 0 
Court applies the de novo standard of review in deciding this appeal. Devasier 

v. James, 278 S.W.3d 625, 631 (Ky. 2009) 

A. Sovereign Immunity and the Board of Claims Act 

Sovereign immunity is a concept that arose from the common law of 

England and was embraced by our courts at an early stage in our nation's 

history. Yanero v. Davis, 65 S.W.3d 510, 517 (Ky. 2001); Reyes v. Hardin 

Memorial Hospital, 55 S.W.3d 337 (Ky. 2001). Sovereign immunity is an 

inherent attribute of a sovereign state that precludes the maintaining of any 

suit against the state unless the state has given its consent or otherwise waived 

its immunity. Yanero, 65 S.W.3d at 517; Alden v. Maine, 527 U.S. 706, 746 

(1999). The principle of sovereign immunity was recognized as applicable to 

the Commonwealth of Kentucky as early as 1828. Yanero, 65 S.W.3d at 517-

18 (citing Divine v. Harvie, 23 Ky. (7 T.B. Mon.) 439, 441 (1828)). "The absolute 

immunity afforded to the state also extends to public officials sued in their 

representative (official) capacities, when the state is the real party against 

which relief is sought." Id. at 518 (citing Alden v. Maine, 527 U.S. 706, 756 

(1999), and other authorities). 

The rationale for absolute immunity for the performance of 

legislative, judicial and prosecutorial functions is not to protect 

those individuals from liability for their own unjustifiable conduct, 

but to protect their offices against the deterrent effect of a threat of 

suit alleging improper motives where there has been no more than 

a mistake or a disagreement on the part of the complaining party 

with the decision made. 

Id. 

11 
The Kentucky Constitution, section 231, provides, however, that "[t]he 

General Assembly may, by law, direct in what manner and in what courts suits 

may be brought against the Commonwealth." The General Assembly, acting 

pursuant to section 231 of the Constitution, enacted the Board of Claims Act, 

KRS 44.070, et. seq., (the "Act"). KRS 44.070(1) established the Board of 

Claims and vested the Board with authority to hear claims and award 

damages, subject to certain limitations, incurred as the "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 by the Commonwealth or any of its 

cabinets, departments, bureaus, or agencies." KRS 44.070(1) further provides 

that the Board of Claims shall be "independent of all agencies, cabinets, and 

departments of the Commonwealth except as provided in KRS 44.070 to 

44.160." 

In 1986, the General Assembly passed amendments to the Act which 

"clarified the law with regard to what types of conduct may form the basis for 

recovery under the Act." Collins v. Commonwealth Nat. Resources and Env. 

Prot. Cabinet, 10 S.W.3d 122, 125 (Ky. 1999). Among the amendments, KRS 

44.073(2) stated: 

The board of claims shall have primary and exclusive jurisdiction 

over all negligence claims for the negligent performance of 

ministerial acts against the Commonwealth, any of its cabinets, 

departments, bureaus or agencies, or any officers, agents, or 

employees thereof while acting within the scope of their 

employment by the Commonwealth, or any of its cabinets, 

departments, bureaus, or agencies. 

12 
(Emphasis added.) The Court in Collins stated, in regard to KRS 44.073(2): 

This provision clearly establishes that any negligence claims 

against the Commonwealth or its subdivisions must be for the 

negligent performance of "ministerial acts." By implication, the 

negligent performance of non-ministerial, i.e., discretionary acts, 

cannot be a basis for recovery under the Act. 

10 S.W.3d at 125. 

In Yanero v Davis, the Court's opinion included certain statements which 

provide guidance in the case presently before the Court. 3The Court, in 

addressing governmental immunity, stated Igiovernmental immunity' is the 

public policy, derived from the traditional doctrine of sovereign immunity, that 

limits imposition of tort liability on a government agency." Id. at 519. In its 

analysis, the Court included a footnote that is important to the present case. 

The footnote states: 

The principle discussed here should not be confused with the 

discretionary/ministerial function analysis that is applied in 

determining when a claimant can recover damages in the Board of 

Claims against the Commonwealth or one of its agencies for the 

negligent performance of a governmental function. KRS 44.073(2); 

Collins v. Commonwealth Nat. Resources and Env. Prot. Cabinet, 

Ky., 10 S.W.3d 122 (1999). 

Id. at 531. 

The Court in Yanero, in addressing official immunity, stated: "'Official 

immunity' is immunity from tort liability afforded to public officers and 

employees for acts performed in the exercise of their discretionary functions. It 

3 Yanero was a civil case, not a Board of Claims case. The Court in Yanero was 

considering the "discretionary versus ministerial" question in connection with its 

determination of whether certain defendants had qualified official immunity as, for 

such immunity to apply, the official's act must be discretionary. Id. at 521-22. 

13 
rests not on the status or title of the officer or employee, but on the function 

performed." Id. at 521. The Court continued: "Official immunity can be 

absolute, as when an officer or employee of the state is sued in his/her 

representative capacity, in which event his/her actions are included under the 

umbrella of sovereign immunity ...." Id. at 521-22. This is the category into 

which Judge Winchester fits. He is a state officer and would have absolute 

judicial immunity for his judicial acts in a suit in civil court. However, in the 

instant case, Appellants' claims were filed in the Board of Claims. 4 

The Court, in proceeding to analyze the Board of Claims Act, stated in 

Yanero that to the extent that KRS 44.073(2) "purports to waive immunity for 

the performance of ministerial acts, it is a nullity; for public agents and 

employees are not vested with immunity for the negligent performance of their 

ministerial functions." Id. at 524. 5The Court further stated that to the extent 

the Act would transfer jurisdiction of non-immune agencies, officers, and 

employees from the circuit court to the Board of Claims, it would be 

unconstitutional for a number of reasons. Id. at 525. 6The Court concluded 

that to abide by the principle that statutes should be construed as 

4Appellants state that their claims "were filed against the Commonwealth based 

upon its waiver of immunity through the Board of Claims Act for King's and Judge 

Winchester's failure to perform the duties of their official capacities." 

5 The Court, in Yanero, did not seem to appreciate that KRS 44.073(2) was not a 

nullity, but was part of an Act that allowed vicarious liability for the Commonwealth 

for the ministerial acts of its officers and employees as the Court recognized two years 

later in Williams v. Kentucky Department of Education, 113 S.W.3d 145 (Ky. 2003). 

6 Likewise, the amendments to the Act did not transfer claims against state 

officers or employees in their individual capacities for negligence in the performance of 

ministerial functions to the Board of Claims. Rather, the Act opened the state to suit 

14 
constitutional if possible, it would construe the 1986 amendments to the Act as 

applying only to otherwise immune persons and entities and not to 

governmental agencies, officers, and employees who were not immune from tort 

liability (and could be sued in court). Id. Finally, the Court made the 

statement, important to the present action, that, in a civil case, an immune 

entity cannot be held vicariously liable for any alleged negligence of its 

employees. Id. at 527. 

The Court's interpretation and application of the Board of Claims Act 

continued to evolve in Williams v. Kentucky Department of Education, 113 

S.W.3d 145 (Ky. 2003). Therein, the plaintiff brought claims against the 

Commonwealth of Kentucky's Department of Education ("DOE") in the Board of 

Claims. The claims were premised on negligent supervision by the faculty and 

staff of Betsy Layne High School, a school operating under the Floyd County 

Board of Education. The alleged negligent supervision resulted in the death of 

a student. The Court stated: 

Appellants could have sued the DOE and/or the Floyd County 

Board of Education alleging vicarious liability for the negligence of 

the faculty and staff of Betsy Layne High School in the Floyd 

Circuit Court except for the fact that both are shielded from 

liability by governmental immunity. The "no vicarious liability" 

principle recognizes that an otherwise immune entity does not lose 

that status merely because its agents or servants can be held liable 

for the negligent performance of their ministerial duties. 

Otherwise, there could be no governmental immunity because 

state agencies perform their governmental functions by and 

through their agents, servants and employees. 

in the Board of Claims for negligence in its officers' and employees' performance of 

ministerial acts, as recognized in Williams. 

15 
Id. at 154 (citing Yanero, 65 S.W.3d at 519, 527). The Court noted in Williams, 

however, that the action before it was not brought in a judicial court, but in the 

Board of Claims. Id. The Court noted the language of KRS 44.072, which 

states in part: 

It is the intention of the General Assembly to provide the means to 

enable a person negligently injured by 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 by the Commonwealth or any of its cabinets, 

departments, bureaus or agencies to be able to assert their just 

claims as herein provided. 

Id. (quoting KRS 44.072). The Court then posed the rhetorical question "Does 

that include vicarious liability claims?" Id. at 155. The Court next quoted KRS 

44.073(2) and (15) as follows: 

(2) The Board of Claims shall have primary and exclusive jurisdiction 

over all negligence claims for the negligent performance of ministerial acts 

against the Commonwealth, any of its cabinets, departments, bureaus, or 

agencies, or any officers, agents, or employees thereof while acting within 

the scope of their employment by the Commonwealth or any of its 

cabinets, departments, bureaus, or agencies. 

(15) Neither the Commonwealth nor any of its cabinets, departments, 

bureaus, or agencies or any officers, agents, or employees thereof shall 

be liable under a respondeat superior theory or any other similar theory 

for the acts of independent contractors, contractors, or subcontractors 

thereof or anyone else doing work or providing services for the state on a 

volunteer basis or pursuant to a contract therewith. 

Id. at 155 (quoting KRS 44.073(2), (15)) (emphasis added in Williams). 

The Court stated that the term "ministerial acts" in KRS 44.073(2) only 

applied to the negligence of public officers and employees who enjoyed "official 

immunity" from the good faith, but negligent, performance of discretionary 

16 
acts, but not for the negligent performance of ministerial acts. Id. 7 In other 

words, KRS 44.073(2) vested primary and exclusive jurisdiction of claims based 

upon the ministerial acts of otherwise immune state actors in the Board of 

Claims. The Court stated that KRS 44.073(2) could not pertain to the negligent 

acts of anyone other than a state official or employee. Id. The Court 

continued: "And subsection (2) cannot be interpreted as waiving the immunity 

of public officers and employees for their own ministerial acts because no such 

immunity exists." Id. (citing. Yanero, 65 S.W.3d at 522) (emphasis added). The 

Court next stated: 

Thus, the only possible meaning ascribable to subsection (2) is 

that it constitutes a waiver of the immunity of the Commonwealth 

or any of its cabinets, departments, bureaus, or agencies, or 

managerial officials and employees from vicarious liability for the 

negligent performance of ministerial acts by other officers, agents, 

or employees while in the course and scope of their employment. 

Id. The Court stated that its conclusion was reinforced by subsection (15), 

which expressly states that immunity based upon vicarious liability is not 

waived for the negligent acts of anyone else. Id. Finally, the Court explained: 

Appellants could have brought an action in the Floyd Circuit Court 

against appropriate members of the faculty and staff of Betsy Lane 

High School for the negligent performance of their ministerial 

duties. In addition, they could have brought an action in the 

Board of Claims against either the Floyd County Board of 

Education and/or the DOE (or the Commonwealth) on a theory of 

vicarious liability. They chose to bring an action only against the 

DOE. Their failure to file a circuit court action against any or all of 

the responsible teachers or to file a Board of Claims action against 

7In Williams, the particular form of immunity enjoyed by the negligent actors 

was official immunity from liability from good faith but negligent performance of 

discretionary acts. See Yanero, 65 S.W.3d at 522. However, KRS 44.073(2) is not 

limited to such persons, but encompasses all persons and entities regardless of the 

form of immunity that such persons or entities might enjoy. Id. at 521-22., 

17 
the Floyd County Board is immaterial to their right to recover 

against the DOE. 

Id. at 155-56 (citations and footnote omitted). Thus, if Judge Winchester's 

duties regarding the appointment and bonding of a master commissioner were 

ministerial, not discretionary, the Commonwealth would have vicarious liability 

if, in the Board of Claims, Judge Winchester were found to have been negligent 

in his performance of those duties. 

The Court's construction of the Act in Williams resolved the Court's 

previous reservations regarding the Act's constitutionality that it voiced in 

Yanero. As noted above, in Yanero, the Court indicated concern that if the Act 

were construed to transfer exclusive jurisdiction of non-immune persons (i.e., 

state officers or employees performing ministerial functions) to the Board of 

Claims, such purported transfer may be unconstitutional on a number of 

grounds. However, Williams makes it sufficiently clear that the Act does not do 

so. The Board of Claims is a statutory exception to sovereign immunity, but is 

limited to the negligent performance of ministerial acts. Therefore, the Act does 

not affect the rights of an injured party to pursue claims against state officers 

or employees for the officer's or employee's own negligence in the performance 

of ministerial acts in circuit court. However, the Act does create vicarious 

liability on the part of the Commonwealth for the negligent performance of 

ministerial acts by officers and employees of the state. In that sense, it is a 

"waiver" of sovereign immunity, as it waives the Commonwealth's immunity 

from suit based upon negligence in the performance of ministerial functions by 

18 
its officers and employees. See also Grayson County Bd. of Edu. v. Casey, 157 

S.W.3d 201, 202-03 (Ky. 2005). 

Two cases decided after Yanero and Williams confirm that only claims 

based upon alleged negligence in the performance of ministerial acts may be 

brought in the Board of Claims. In Stratton v. CoMmonwealth, 182 S.W.3d 516 

(Ky. 2006), plaintiff brought an action against the Cabinet for Families and 

Children in the Board of Claims which was dismissed by the Board on the 

grounds that the Cabinet was protected from the suit by governmental 

immunity, unless such immunity had been waived. Id. at 519. The Court held 

that the Cabinet was immune because the duties of the Cabinet's employee in 

question were discretionary, not ministerial (i.e., there was no waiver). The 

Court stated: 

The Board of Claims Act offers a limited waiver of governmental 

immunity with regard to negligence claims filed with the Board. 

The waiver extends only to negligence claims involving the 

performance of ministerial acts. KRS 44.073(2). A "ministerial" 

act is one in which the agency has no discretion; non-ministerial, 

or discretionary acts cannot be a basis for recovery under the 

Board of Claims Act. 

Id. The Court found that the Cabinet employee's acts were discretionary and 

affirmed the Board of Claims' dismissal of the claim. 

A plaintiff filed suit against the Transportation Cabinet in the Board of 

Claims in Commonwealth v. Sexton, 256 S.W.3d 29 (Ky. 2008). The Court 

stated that "Nile Board of Claims Act (KRS 44.070, et. seq.) provides for a 

waiver of sovereign immunity for negligence in the performance of ministerial 

acts only." Id. at 32. The Court found that the acts of the Cabinet's employees 

19 
were discretionary, not ministerial, and, accordingly, remanded the matter to 

the Board of Claims with instructions to enter judgment in favor of the Cabinet. 

Id. at 36. 

The parties in the case now before the Court debate whether the 

plaintiffs sufficiently named the Commonwealth as a party or merely named 

state officers (e.g. Judge Winchester) who cannot be personally liable in a 

Board of Claims proceeding. This debate can be put to rest by the statement in 

Commonwealth v. Harris, 59 S.W.3d 896 (Ky. 2001), in which the Court stated: 

Official capacity suits "generally represent only another way of 

pleading an action against an entity of which an officer is an agent. 

As long as the government entity receives notice and an 

opportunity to respond, an official-capacity suit is, in all respects 

other than name, to be treated as a suit against the entity." 

Id. at 899 (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). There 

is no question in the present case regarding notice or opportunity to respond. 

B. The Scope of the Waiver of Sovereign Immunity Under the 

Board of Claims Act. 

The Appellants brought their claims before the Board of Claims. As a 

result, any award that may have been made by the Board would be paid by the 

state's general treasury fund. KRS 44.100. This is consistent with the 

Appellants' assertion that their claims are brought against the defendants in 

their official capacities. 

As indicated, the Franklin Circuit Court relied, in part, on Horn by Horn 

v. Commonwealth to affirm the Board of Claims' determination that claims 

20 
against the AOC were subject to its jurisdiction. The Court first quoted the 

following portion of KRS 44.070(1) in Horn: 

A board of claims ... is created and vested with full 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 by the Commonwealth or any of its cabinets, 

departments, bureaus or agencies .... 

Horn, 916 S.W.2d at 174 (quoting KRS 44.070(1) (ellipses and emphasis added 

in Horn). The Court next noted that Kentucky Constitution, section 27, 

provides: 

The powers of the government of the Commonwealth of Kentucky 

shall be divided into three distinct departments, and each of them 

be confined to a separate body of magistracy, to wit: Those which 

are legislative, to one; those which are executive, to another; and 

those which are judicial, to another. 

Id. at 174-75 (quoting Ky. Const. § 27) (emphasis added). The Court reasoned 

that "[als the AOC is a part of the judicial department, it follows that the AOC 

falls within the reach of KRS 44.070(1) and the Board of Claims." Id. at 175. 

On further examination of KRS 44.070(1), this Court finds that the 

decisive word in the statute is not "departments," but is the term 

"Commonwealth."8KRS 44.070(1) states, in pertinent part, that the Board of 

Claims is vested with full power and authority over claims as a "result of 

8 Further, the Court's determination that the AOC, while subject to the 

jurisdiction of the Board of Claims, was protected from liability by quasi-judicial 

immunity mixed apples with oranges. Judicial and quasi-immunity may bar an action 

against the AOC's employee in her personal capacity. However, judicial and quasijudicial immunity would not bar a suit before the Board of Claims based upon 

negligence in the performance of ministerial actions. Yanero, 65 S.W.3d at 521-22. 

21 
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 by the Commonwealth or any of its 

cabinets, departments, bureaus, or agencies." (Emphasis added.) 

The term "Commonwealth" is an unambiguous and encompassing term. 

It was incorrect for the Court in Horn to gloss over the term "Commonwealth" 

and determine that the Board of Claims' jurisdiction hinged on the laterappearing term "departments." The statute's ensuing enumeration of 

"cabinets, departments, bureaus, or agencies" serves to amplify the 

encompassing term "Commonwealth"; it does not detract from it. Thus, the 

waiver of sovereign immunity, as set forth in KRS 44.070, includes all parts of 

the Commonwealth that make up the whole. 

More concisely, the Board of Claims Act's waiver of the sovereign 

immunity of the Commonwealth includes the three departments into which the 

government of the Commonwealth is divided in the Kentucky Constitution 

under section 27 (i.e., the executive, the legislative, and the judicial 

departments of the Commonwealth). Any other construction would not give 

full meaning to the term Commonwealth as used in the Board of Claims Act. A 

waiver of sovereign immunity must be expressed in the clearest terms. Withers 

v. University of Kentucky, 939 S.W.2d 340, 34-46 (Ky. 1997); see also Reyes, 

55 S.W.3d at 340. This may be an exacting standard, but KRS 44.070(1) and 

the other sections of the Board of Claims Act which reference the 

"Commonwealth" meet such standard. 

22 
Further, this Court continues to agree with its prior analysis in Horn that 

construing the Board of Claims' jurisdiction to extend to each of the three 

departments (often called "branches") of the Commonwealth does not impair 

the separation of powers doctrine which is fundamental to Kentucky's tripartite 

system of state government. The limited waiver of sovereign immunity for 

citizens to seek redress for negligence in the performance of ministerial acts 

should not infringe upon the "core" functions of any of the three departments 

of the Commonwealth. Horn, 916 S.W.2d at 175-76. 

C. Analysis of Jurisdiction Over Each Appellee 

1. Charles King 

KRS 44.070(1) provides that the Board of Claims is established 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, or any of its officers, agents, or employees while acting within 

the scope of their employment." (Emphasis added.) Similarly, KRS 44.072 

provides that "[i]t is the intention of the General Assembly to provide the means 

to enable a person negligently injured by the Commonwealth ... to be able to 

assert their just claims as herein provided." (Emphasis added.) Finally, KRS 

44.073(9) states that "[n]egligence as used herein includes negligence, gross 

negligence, or wanton negligence." 

While the Appellants attempt to fit King's actions within the definition of 

"wanton negligence," such characterization does not fit. There is no escape 

from the conclusion that King's actions in conversion of the proceeds of the 

23 
judicial sale constituted an intentional tort, not any form of negligence. 

Therefore, all other issues relating to King's conduct aside his actions do not 

come within the scope of the Board of Claims Act's limited waiver of sovereign 

immunity for negligence. The Commonwealth has not waived its sovereign 

immunity in such a manner that awards to claimants based upon intentional 

torts would be paid from the state's general treasury fund. 

2. The AOC 

The Appellants, in the course of these proceedings, have argued that 

King and Judge Winchester were employees of the AOC or that the AOC was, at 

least, the proper entity to defend the Appellants' claims against King and Judge 

Winchester. It is already established in the immediately preceding section of 

this opinion that there is no cognizable claim against King under the Board of 

Claims Act. Therefore, there is no basis for a claim against the AOC on the 

ground, which it is unnecessary to ultimately decide, that it was King's 

employer. 

Next, it is abundantly clear that the AOC is not the employer of circuit 

judges, such as Judge Winchester. Circuit court judges are elected to their 

office. Ky. Const. § 117. Circuit court judges' compensation is fixed by the 

General Assembly. Ky. Const. § 120. Finally, circuit court judges, along with 

other certain offices, are designated as officers of the Commonwealth in KRS 

61.020. 

The AOC is the staff of the Chief Justice in executing the policies and 

programs of the Court of Justice. KRS 27A.050. All employees of the AOC 

24 
. serve at the pleasure of the Chief Justice. Id. Because circuit judges are 

elected and do not serve at the pleasure of the Chief Justice, it is sufficiently 

clear that a circuit judge is not an employee of the AOC. This conclusion is 

further confirmed by the fact that a circuit court judge's compensation is fixed 

by the General Assembly pursuant to section 120 of the Kentucky 

Constitution. In contrast, the compensation of employees of the AOC is fixed 

by the Chief Justice. KRS 27A.050. These statutory differences render it clear 

that a circuit judge is not an employee of the AOC. 9 

Thus, under the facts of this case, there was no jurisdiction in the Board 

of Claims for a claim against the AOC. It was not an actor in the situation 

giving rise to the claim, nor was it the employer of any actor in the situation 

giving rise to the claim. 

3. Judge Winchester 

Judge Winchester, as the sitting judge of the McCreary Circuit Court at 

the time of the underlying events which gave rise to this action, was protected 

from suit in his personal capacity by the doctrine of judicial immunity. See 

Henry v. Wilson, 249 Ky. 589, 61 S.W.2d 305, 307 (Ky. 1933). As a preface to 

our analysis of whether the Appellants are able to state viable claims in the 

Board of Claims based upon allegations of negligence by Judge Winchester, the 

Court observes the distinction between such analysis and the doctrine of 

9 The Court notes that the Attorney General has provided the defense to 

Appellants' claims. KRS 44.090, which addresses the defense of claims, seems to 

provide for the Attorney General to provide a defense to an entity or person against 

whom suit is brought in the Board of Claims, and for whom an attorney is not 

otherwise available. 

25 
judicial immunity which protects judges from suit in civil court. The present 

case does not involve the doctrine of judicial immunity, nor does it directly or 

indirectly disturb the existing law on judicial immunity. 

Judge Winchester, in his official capacity as a circuit judge, is an officer 

of the Commonwealth. KRS 61.020. The Commonwealth has waived its 

sovereign immunity, to the extent provided in the Board of Claims Act, for 

claims based upon allegations of negligence by Judge Winchester in the 

performance of ministerial functions of his office. KRS 44.073(2). 

In Collins v. Commonwealth, a decedent's administratrix brought suit 

against the Commonwealth of Kentucky Natural Resources and Environmental 

Protection Cabinet (the "Cabinet") in the Board of Claims alleging that the 

Cabinet (through its employees) was negligent in the inspection of surface 

mining operations. Collins, 10 S.W.3d at 126. Specifically, the administratrix 

alleged that the Cabinet had failed to enforce a regulation requiring that roads 

constructed in connection with the mining operations to include culverts with a 

sufficient capacity to handle the peak run off from a from a 10 year, 24 hour 

precipitation event. Id. The Court stated that "Nile essence of a discretionary 

power is that the person or persons exercising it may choose which of several 

courses to be followed." Id. The Court also stated that "No decide whether 

mine site inspection by Cabinet employees is ministerial or discretionary, it is 

necessary to determine whether the acts involve policy-making decisions and 

significant judgment, or are merely routine duties." Id. (emphasis added). The 

26 
Court concluded that inspection of mine operations to assure conformity to 

regulations was a ministerial function. Id. 

In Williams, the plaintiff brought a wrongful death action against the 

Kentucky Department of Education. The plaintiff alleged that the death of a 

high school student was caused by the negligent supervision of a school event 

by the school staff. Williams, 113 S.W.3d 148-51. The Court noted that the 

school staff had duties to supervise students based on statute and a code of 

conduct adopted by the school. Id. at 150-51. With regard to the staff's duty 

to supervise the students, the Court stated "[p]romulgation of rules is a 

discretionary function; enforcement of those rules is a ministerial function." 

Id. at 150 (citing Yanero, 65 S.W.3d at 529, and KRS 161.180(1)). With regard 

to the staff's duty to abide by the school's code of conduct, the Court stated 

that "[c]ompliance with this directive was a ministerial, not a discretionary ... 

function." Id. at 151; see also Sexton, 256 S.W.3d at 33 (stating that while acts 

may be ministerial even if not prescribed by statute, ministerial duties will 

frequently be established by guidelines in statutes and regulations). 

Herein, the relevant statutes enabled Judge Winchester to operate his 

court with the use of a master commissioner. KRS 31A.010(1); KRS 31A.020. 

KRS 31A.010(3)(a) specifically provided that a judge could not operate his court 

with a commissioner beyond four years without reappointment of the 

commissioner. KRS 31A.020 expressly provided that a judge operating his 

court with a master commissioner must approve the surety obtained by the 

commissioner on the commissioner's bond. Although an analysis as to 

27 
whether such actions/inactions are 'ministerial or discretionary is highly case 

.specific, it is apparent in this case that Judge Winchester failed to perform 

routine duties of his office which did not involve significant judgment. Collins, 

10 S.W.3d at 126; Williams, 113 S.W.3d at 148- 51. 

In sum, we hold that Judge Winchester's continued use of a master 

commissioner, without reappointment, to perform significant functions in 

actions in the McCreary Circuit Court without a bond, and without surety 

approved by Judge Winchester, is grounds for a claim in the Board of Claims 

based upon. alleged negligence in the performance of a ministerial duty by an 

Officer of the state. 

III. Conclusion 

Accordingly, we remand the Appellants' claims against the 

Commonwealth of Kentucky, based upon the alleged negligence of Judge 

Winchester, to the Board of Claims for a determination, pursuant to MRS 

44.120, of whether the Appellants suffered damages as a proximate cause of 

any alleged negligence in the performance of said ministerial duties. 

Schroder, Scott and Venters, JJ., concur. Noble, J., dissents by separate 

opinion in which Cunningham, J., and Connolly, Special Justice, join. Minton, 

C.J. and Abramson, J., not sitting. 

NOBLE, J., DISSENTING: I dissent because I do not believe that a claim 

involving the Court of Justice, the AOC, or any judicial officers or court 

employees may proceed at the Board of Claims. Nevertheless, in Horn by Horn 

v. Commonwealth, 916 S.W.2d 173, 176 (Ky. 1995), this Court held in part that 

28 
the Board had jurisdiction over the Court of Justice and thus the AOC. And 

the majority, though it does not accept all the reasoning of Horn, reaches the 

same holding. But in my view, Horn and the majority opinion are flawed and 

have perpetuated an application of the waiver doctrine that does not 

comfortably fit with elected officers. 

The AOC argues against this part of Horn in two ways. First, it claims 

that allowing the Board to have jurisdiction would violate, or at least harm, the 

separation of powers included in sections 27 and 28 of the Kentucky 

Constitution. Second, it claims that the Board of Claims act does not 

unambiguously waive sovereign immunity as to the Court of Justice and the 

AOC. 

The constitutional question need not—and indeed cannot—be resolved in 

this case if it can be decided on another ground. See Louisville/Jefferson 

County Metro Gov't v. TDC Group, LLC, 283 S.W.3d 657, 660 (Ky. 2009) 

(applying "the long-standing practice of this Court ... . to refrain from reaching 

constitutional issues when other, non-constitutional grounds can be relied 

upon."' (quoting Baker v. Fletcher, 204 S.W.3d 589, 597-98 (Ky. 2006)); Baker, 

204 S.W.3d at 598 ("[W]e must not reach a constitutional issue if other 

grounds are sufficient to decide the case."); Dawson v. Birenbaum, 968 S.W.2d 

663, 666 (Ky. 1998) ("It is well settled that where a party pleads both statutory 

and constitutional claims, the court deciding those claims should limit itself to 

considering the statutory claims if in so doing the court may avoid deciding 

complex constitutional issues."); see also Spector Motor Serv. v. McLaughlin, 

29 
323 U.S. 101, 105 (1944) ("If there is one doctrine more deeply rooted than any 

other in the process of constitutional adjudication, it is that we ought not to 

pass on questions of constitutionality ... unless such adjudication is 

unavoidable."). 

Essentially, a constitutional issue may and should be avoided if a 

claimant can obtain relief on some other ground. Because I ultimately agree 

with the AOC's second point in this regard, that the Act did not waive 

immunity as to the courts, the separation of powers issue need not be 

addressed. Though the majority disclaims the reasoning of Horn, it 

nevertheless maintains that case's holding that the Court of Justice is subject 

to the Board of Claims. I disagree with that holding, because both Horn's and 

the majority's reasoning are erroneous. 

Horn read the Board of Claims act as waiving sovereign immunity for two 

reasons. It "first not[ed] ... discomfort with the proposition .:. that the Board of 

Claims has no jurisdiction over the AOC." Horn, 916 S.W.2d at 174. It then 

claimed that the language of the Act itself was broad enough to waive the 

immunity of the Court of Justice and its agencies, officers, and employees. 

This first concern—the Court's "discomfort"—simply is not sufficient to 

allow a waiver of sovereign immunity. Inherent in the very concept of such 

immunity is that wrongs by the government may not be remedied by a suit at 

law or otherwise without the state's permission. Absent a waiver, which may 

only be created by the General Assembly, see Ky. Const. § 221, there is no 

avenue to seek redress for wrongs committed by the Commonwealth or its 

30 
agents. Though this "discomfort" may be a persuasive policy argument in favor 

of waiving sovereign immunity, it is an insufficient rationale for this Court to 

find such a waiver. 

The second part of Horn's discussion is simply a misreading of the Act. 

This part of the opinion focused on KRS 44.070(1), the core of the Act, which 

states in part: 

A Board of Claims ... is created and vested with full 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 by the Commonwealth or any of its cabinets, 

departments, bureaus, or agencies .... 

(Emphasis added.) The Court focused on the use of the word "departments" in 

the statute, and noted that the judiciary is one of the "departments" of 

government under section 27 of the Kentucky Constitution. Construing the use 

of "departments" in both the statute and the constitution, the Court held that 

"[i]t is clear to us that the intent of the legislature, in enacting KRS 44.070, was 

to give citizens the right of recourse against the government—the government, 

to refer back to the beginning of our discussion, being made up of the three 

separate 'departments."' Horn, 916 S.W.2d at 175. 

However, the legislature, which has the only power to waive sovereign 

immunity, has distinguished the constitutional use of "department," which was 

used as a synonym for "branch," from the statutory meaning of the word by 

specifically defining it and commanding that the statutory definition be used 

throughout the Kentucky Revised Statutes whenever possible. KRS 12.010 

31 
provides definitions for terms relating to administrative organizations and 

states that they are to be used "throughout the Kentucky Revised Statutes 

where applicable and appropriate unless the context requires otherwise." The 

word "department" is one of those defined terms and "means that basic unit of 

administrative organization of state government, by whatever name called, 

designated by statute or by statutorily authorized executive action as a 

`department,' such organization to be headed by a commissioner." KRS 

12.010(2). 

Clearly, this definition is incompatible with classifying the Court of 

Justice as a statutory "department," since that term contemplates an agency 

within the executive branch of government. KRS 12.010 as a whole describes 

executive branch entities, falling as it does under that part of the Kentucky 

Revised Statutes titled "Executive Branch," and referring repeatedly to 

"executive action" and "executive branch." The statute even goes so far as to 

place a "department" directly in the executive branch by including it in the 

definition of an "organizational unit," which "means any unit of organization in 

the executive branch of the state government that is not an administrative 

body, including but not limited to any agency, program cabinet, department, 

bureau, division, section or office." KRS 12.010(1) (emphasis added). That 

"department" refers to an executive branch entity should be plainly evident 

from this language. 

Comparison of the definition with the Court of Justice and the AOC, 

however, further cements this understanding. Departments are required to be 

32 
"headed by a commissioner." Yet neither the Court of Justice nor the AOC are 

"headed by a commissioner." Both are headed instead by the Chief Justice of 

the Commonwealth, who is "the executive head of the Court of Justice," Ky. 

Const. § 110(5)(b), and for whom the "Administrative Office of the Courts [wa]s 

created to serve as the staff," KRS 274.050. 

The Horn Court was presented with this argument, though apparently in 

a simplified form. Rather than discussing its merits, the Court dismissed it in a 

summary fashion, stating: "We choos'e ... not to become entangled in 

semantics, for the general rule in statutory construction 'is to ascertain and 

give effect to the intent of the General Assembly."' Horn, 916 S.W.2d at 175 

(quoting Beckham v. Bd. of Educ. of Jefferson County, 873 S.W.2d 575, 577 (Ky. 

1994)). 

But such "statutory construction" is only necessary where the statutory 

language is not clear. Legislative intent siphoned out of the ether cannot trump 

clear statutory language. After quoting the intent language in Beckham, which 

actually described only the Court's "duty," not a rule of construction, Horn 

unfortunately disregarded the very next sentence, which stated: "We are not at 

liberty to add or subtract from the legislative enactment nor discover meaning 

not reasonably ascertainable from the language used." Beckham, 873 S.W.2d 

at 577. 

The question then is whether the context of the Board of Claims Act 

requires use of a different definition of "department" than appears in KRS 

12.010. Upon reading the Act as a whole, it does not. 

33 
No doubt, this is why the majority has declined to perpetuate Horn's 

emphasis on the word departments in the Board of Claims Act. Instead, the 

majority reads the Act's broad language referring to waving the immunity of the 

Commonwealth and all its various agencies and agents to apply to the judicial 

and legislative branches of government. This claim, too, is flawed. The Act only 

waives immunity for the executive branch. 

The most important point in this regard is that the language used to 

describe the entities whose immunity is waived by the Act tracks the structure 

of the executive branch. KRS 44.070(1), which includes the primary waiver of 

sovereign immunity for the Board, uses the language "cabinets, departments, 

bureaus, or agencies"; the first two of these terms is defined in KRS 12.010 and 

all four are discussed under the executive branch in KRS 12.010(1). Both KRS 

44.072, which discusses the intent of the General Assembly as to waiver, and 

KRS 44.073, also uses the same "cabinets, departments, bureaus, or agencies" 

language. This alone indicates the General Assembly's intention that the waiver 

only apply to the executive branch. It is also abundantly clear that much of 

this language was used prior to the existence of the AOC or the unified Court of 

Justice, which lends credence to the argument that the language was not 

intended to apply to the judiciary. 

That the Act is intended to apply only to the executive branch is 

supported by language throughout the Act describing the composition and 

operation of the Board by the executive branch. The Board itself is composed of 

the members of the Crime Victims Compensation Board, KRS 44.070(1), who 

34 
are all appointed by the governor, KRS 346.030(1), and one of whom, the 

chairman, serves at the pleasure of the governor, KRS 346.030(3). The hearing 

officers who assist the Board are also appointed by the governor, KRS 

44.070(6), and they are impliedly removable by the governor, KRS 44.070(7). 

The Board's powers also indicate the Act applies only to the executive 

branch. The Board has the power to order the "affected state agenc[y] to 

investigate claims and the incidents on which they are based and to furnish to 

the board and the claimant in writing the facts learned by investigation," KRS 

44.086. Since the Board itself is an executive entity, such power should only go 

to other executive entities, not entities in other branches of government. 

Additionally, legal decisions about defending a claim are made by the 

executive branch. KRS 44.090 provides that the defense shall be made by "[t]he 

attorney[] appointed by the governor," and refers to that attorney as the 

"cabinet attorney" who "represent[s] his respective cabinet, department, 

bureau, agency, or employee." If such an attorney is unavailable, the Attorney 

General, another executive branch official, shall appoint one of his assistants 

to present the defense. KRS 44.100 again refers to the attorneys who defend 

claims as "assistant attorneys general or attorneys, appointed by the Governor 

to represent the Commonwealth's cabinets, departments, agencies or 

employees, agents or officers thereof." Finally, the decision whether to appeal 

an award by the Board is controlled by the Attorney General, KRS 44.140(1) 

("No state agency can appeal any decision of the board without securing the 

35 
prior approval of the Attorney General."), which only makes sense if the 

decision can affect only an executive branch entity. 

These aspects of the Act make the AOC's claim that it violates the 

constitutional separation of powers more than understandable. Under the Act, 

the Board, an executive branch entity, gets to order an investigation of any 

affected entity; decisions about claims are made by the executive branch; and 

the claim itself is decided by the executive branch. Each of these creates a 

danger of violating separation of powers when applied to other branches of 

government. 

But this danger of separation of powers simply augurs in favor of reading 

the Act as applying only to the executive branch.,As the majority notes in - 

another context, interpretations of statutes rendering them unconstitutional 

should be avoided whenever possible. Ante, slip op. at 15; see also Yanero v. 

Davis, 65 S.W.3d 510, 525 (Ky. 2001) ("It is a well established principle of 

constitutional law and statutory construction that if a statute is reasonably 

susceptible to two constructions, one of which renders it unconstitutional, the 

court must adopt the construction which sustains the constitutionality of the 

statute.' (quoting Davidson v. American Freightways, Inc., Ky., 25 S.W.3d 94, 

96 (2000)). 

Setting any constitutional concern aside, this interpretation is also 

compelling in light of the Act's expressed intent to be a limited waiver of 

sovereign immunity. KRS 44.072 states that "tt]he Commonwealth ... waives 

the sovereign immunity defense only in the limited situations as herein set 

36 
forth." (Emphasis added.) The statute goes on to say that lilt is further the 

intention of the General Assembly to otherwise expressly preserve the sovereign 

immunity of the Commonwealth ... in all other situations except where 

sovereign immunity is specifically and expressly waived as set forth by statute." 

KRS 44.073 also expressly preserves the state's sovereign immunity except as 

expressly stated otherwise in statutes; in fact, it includes three subsections 

further expressing the idea that the General Assembly intended to retain a 

substantial portion of its sovereign immunity. See KRS 44.073(11) ("Except as 

otherwise provided by this chapter, nothing contained herein shall be 

construed to be a waiver of sovereign immunity or any other immunity or 

privilege ...."); KRS 44.073(12) ("Except as otherwise specifically set forth by 

statute and in reference to subsection (11) of this section, no action for 

damages may be maintained in any court or forum against the 

Commonwealth ...."); KRS 44.073(13) ("The preservation of sovereign immunity 

referred to in subsections (11) and (12) of this section includes, but is not 

limited to, the following: (a) Discretionary acts or decisions; (b) Executive 

decisions; (c) Ministerial acts; (d) Actions in the performance of obligations 

running to the public as a whole; (e) Governmental performance of a selfimposed protective function to the public or citizens; and (f) Administrative 

acts."). 

This reservation of immunity and requirement that any waiver be express 

and specific in a statute is also reflected in this Court's jurisprudence on the 

subject. For example, this Court has held: 

37 
"Statutes in derogation of sovereignty should be strictly construed 

in favor of the state, so that its sovereignty may be upheld and not 

narrowed or destroyed, and should not be permitted to divest the 

state or its government of any of its prerogatives, rights, or 

remedies, unless the intention of the legislature to effect this object 

is clearly expressed." 

City of. Bowling Green v. T & E Elec. Contractors, Inc., 602 S.W.2d 434, 436 (Ky. 

1980) (quoting Commonwealth, Department of Highways v. Hale, 348 S.W.2d 

831, 832 (Ky. 1961)). This Court has also stated that it "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 Edelman v. Jordan, 415 U.S. 651, 673 (1974)); see also 

Jones v. Cross, 260 S.W.3d 343, 347 (Ky. 2008); Grayson County Bd. of Educ. 

v. Casey, 157 S.W.3d 201, 205 (Ky. 2005); Young v. Hammond, 139 S.W.3d 

895, 914 (Ky. 2004); Reyes v. Hardin County, 55 S.W.3d 337, 340 (Ky. 2001). 

Under this paradigm, I cannot say that the Act includes a waiver of 

sovereign immunity for any branch of government except the executive branch 

"by the most express language or by such overwhelming implications from the 

text as will leave no room for any other reasonable construction." It is 

reasonable that the General Assembly intended to limit the applicability of the 

Act's waiver only to the executive branch. Compared to the other branches, the 

executive branch has dozens of administrative entities and tens of thousands 

of employees, making it by far the largest branch of government. The vast 

majority of injuries caused by the state stem from the executive branch's 

38 
actions. The Court of Justice, on the other hand, has only one administrative 

agency and only a few thousand employees, a large fraction of whom are 

directly elected officials. Similarly, the legislative branch is small in comparison 

to the executive branch, having relatively few officers and employees and only 

one administrative agency, the Legislative Research Commission. KRS 7.090(1) 

("There is created a Legislative Research Commission as an independent 

agency in the legislative branch of state government, which is exempt from 

control by the executive branch and from reorganization by the Governor."). 

Thus, only a small percentage of potential claims would arise from the actions 

of those two branches. 

Nor is this exclusion of the judiciary and legislature from otherwise 

generally applicable statutes unprecedented. For example, the Court of Justice 

and the General Assembly, despite each having an administrative agency, are 

expressly excepted from some of the statutory scheme relating to regulations 

for administrative entities. See KRS 13A.010(1) ("Administrative body' means 

each state board, bureau, cabinet, commission, department, authority, officer, 

or other entity, except the General Assembly and the Court of Justice, 

authorized by law to promulgate administrative regulations ...." (emphasis 

added)). 

There is also the fact that the Act just is not a good fit with elected 

officials. The judiciary and the legislature are all elected directly by the people. 

As such, their work is direct state action, as they are not "employees" of their 

administrative agency, but rather the other way around. The agencies perform 

39 
a public purpose only to the extent that they support or provide staff for the 

elected officials. Judges and legislators are the state embodied in the person of 

an official. Both have additional personal immunity other than through 

sovereign immunity: judicial and legislative. In fact, in Horn, despite holding 

that the Act applied to the judiciary, the Court went on to also hold that the 

claim at the Board could not continue because the employee had "quasijudicial immunity" which barred the claim. (This was erroneous, as the claim at 

the Board was against the state, not the individual. The presence of other 

immunities, of course, further underscores the difference between executive 

and judicial branch personnel.) 

Taken as a whole, it is evident that the Act contemplates only actions 

against executive branch agencies. Simply put, there is nothing in the Act to 

indicate that its use of the term "departments" refers to anything other than 

administrative organizations under the executive branch as defined in KRS 

12.010, and the use of the term "Commonwealth" cannot be read so broadly as 

to rewrite the entire Act. I therefore conclude that the definition of 

"department" in KRS 12.010 is applicable and appropriate for use in the Board 

of Claims Act and the context does not require otherwise. Thus, Horn was 

incorrect to hold that "department" as used in KRS 44.070 applied to the 

"departments" of government—normally referred to as "branches"—as defined 

in section 27 of the Kentucky Constitution. I also conclude that the majority 

errs in reading the term "Commonwealth" expansively to apply outside the 

executive branch. 

40 
I instead would hold that the Board of Claims Act, as currently drafted, 

does not waive the sovereign immunity of the Court of Justice, or its agency, 

officers and employees. (Nor does it waive the immunity of the General 

Assembly, the LRC, or its employees, though that is the clear implication of the 

majority opinion.) The Board therefore properly determined that it did not have 

jurisdiction over the Appellant's claims. 

Cunningham, J., 'and Connolly, Special Justice, join. 

41 
COUNSEL FOR APPELLANT/CROSS-APPELLEE, PATRICIA GREENE: 

Mendel Austin Mehr 

Philip Gray Fairbanks 

Austin Mehr Law Offices, PSC 

145 West Main Street, Suite 300 

Lexington, Kentucky 40507 

COUNSEL FOR APPELLANTS/CROSS-APPELLEES, THELMA CORNELIUS, 

SANDY WOOD JOHNSON, ANNA PERKINS, DEAN WOOD, DOROTHY WOOD, 

LORELLA WOOD AND JOHN C. WOOD: 

Mendel Austin Mehr 

Austin Mehr Law Offices, PSC 

145 West Main Street, Suite 300 

Lexington, Kentucky 40507 

COUNSEL FOR APPELLEES/CROSS-APPELLANT, COMMONWEALTH OF 

KENTUCKY, ADMINISTRATIVE OFFICE OF THE COURTS; AND 

CROSS-APPELLEES, HONORABLE JERRY WINCHESTER, AND CHARLES E. 

KING: 

James Michael Herrick 

Assistant Attorney General 

Civil and Environmental Law Division 

700 Capital Avenue, Suite 118 

Frankfort, Kentucky 40601-3449 

Lisa Kathleen Lang 

Assistant Attorney General 

700 Capitol Avenue, Suite 118 

Frankfort, Kentucky 40601 

COUNSEL FOR APPELLEE, KENTUCKY BOARD OF CLAIMS: 

George Mitchell Mattingly 

Legal Counsel 

Board of Claims 

130 Brighton Park Blvd. 

Frankfort, Kentucky 40601-3113 

42