RENDERED: DECEMBER 16, 2021

TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0651-DG

FREDERICK JONES APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. NO. 2019-CA-0172

JEFFERSON CIRCUIT COURT NO. 98-CR-000443

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE KELLER

REVERSING AND REMANDING

Frederick Jones filed an application for expungement in Jefferson Circuit 

Court. As part of his application, he also filed a motion to proceed in forma 

pauperis, which would allow him to proceed without paying the required filing 

fee. The Jefferson Circuit Court denied his motion to proceed in forma pauperis. 

The Court of Appeals affirmed the Jefferson Circuit Court. After a thorough 

review, we reverse the Court of Appeals and remand to the Jefferson Circuit 

Court for proceedings consistent with this Opinion.

I. BACKGROUND

In 1998, Frederick Jones pled guilty to one felony count of theft by 

failure to make the required disposition of property. As a result, he spent 

several months incarcerated and then five years on supervised probation. In 

August 2018, Jones filed an application for expungement pursuant to 
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Kentucky Revised Statute (KRS) 431.073 in the Jefferson Circuit Court. He did 

not tender a filing fee with his application but instead filed a motion to proceed 

in forma pauperis (IFP) pursuant to KRS 453.190, which would have allowed 

him to proceed without payment of costs and fees. The trial court denied his 

motion to proceed IFP, concluding that the legislature did not intend KRS 

453.190 to apply to applications for expungements. The Court of Appeals 

affirmed. Jones moved this Court for discretionary review, and we granted his 

motion. 

Jones argues that, as a matter of statutory interpretation, an application 

for an expungement is an “action” under the IFP statute. He further argues 

that the Due Process and Equal Protection clauses of the United States and 

Kentucky constitutions require low-income individuals be afforded access to

expungements without fees. The Commonwealth, on the other hand, argues 

that there is no constitutional right to a cost-free expungement and that the 

application of the IFP statute to the expungement statute is at odds with the 

language of the latter statute. Further, the Commonwealth argues that if the 

IFP statute does apply to expungements, then it only applies to waive the $50 

filing fee and not the $250 expungement fee.

II. ANALYSIS

In this case we do not review the trial court’s factual findings regarding 

the IFP determination but, instead, review the lower courts’ interpretations of 

the relevant statutes. “The interpretation of statutes is a matter of law which 

we review de novo.” Commonwealth v. Moore, 545 S.W.3d 848, 850 (Ky. 2018) 
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(citation omitted). Therefore, “[w]e afford no deference to the statutory 

interpretations of the lower courts.” Id. (citation omitted).

Although Jones makes arguments regarding the constitutionality of 

failing to apply the IFP statute to expungements, “we emphasize the ‘longobserved principle’ that Constitutional adjudication should be avoided unless 

strictly necessary for a decision in the case.” Spees v. Kentucky Legal Aid, 274 

S.W.3d 447, 449 (Ky. 2009) (quoting Stephenson v. Woodward, 182 S.W.3d 

162, 168 (Ky. 2005)). Therefore, “if a case can be decided on either of two 

grounds, one involving a constitutional question, the other a question of 

statutory construction or general law, the court will decide only the latter.” Id.

(quoting Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1938) 

(Brandeis, J., concurring)). Because we decide this case on statutory 

construction grounds, we do not address the parties’ constitutional arguments.

This Court has long held that the “fundamental rule of statutory 

construction is to determine the intent of the legislature.” Beach v. 

Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996). 

In interpreting a statute, we have a duty to accord to words of a 

statute their literal meaning unless to do so would lead to an 

absurd or wholly unreasonable conclusion. As such, we must look 

first to the plain language of a statute and, if the language is clear, 

our inquiry ends. We hold fast to the rule of construction that the 

plain meaning of the statutory language is presumed to be what 

the legislature intended, and if the meaning is plain, then the court 

cannot base its interpretation on any other method or source. In 

other words, we assume that the Legislature meant exactly what it 

said, and said exactly what it meant.
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Moore, 545 S.W.3d at 851 (citation omitted). Further, in construing statutes 

that appear to conflict, “it is the duty of the court to try to harmonize the 

interpretation of the law so as to give effect to both . . . statutes if possible.” 

Ledford v. Faulkner, 661 S.W.2d 475, 476 (Ky. 1983).

Pursuant to KRS 431.073, under certain circumstances, a person with a 

criminal record can seek to have that record expunged. Under the statute, he

or she must “file with the court in which he or she was convicted an 

application to have the judgment vacated. The application shall be filed as a 

motion in the original criminal case.” KRS 431.073(1). In 2019, the 

expungement statute was amended1 so that “[t]he filing fee for an application to 

have judgment vacated and records expunged shall be fifty dollars ($50), which 

shall be deposited into a trust and agency account for deputy clerks and shall 

not be refundable.” KRS 431.073(10). Then, “[u]pon the issuance of an order 

vacating and expunging a conviction pursuant to this section, the applicant

shall be charged an expungement fee of two hundred fifty dollars ($250), which 

may be payable by an installment plan in accordance with KRS 534.020.” KRS 

431.073(11)(a). However, the record will not actually be expunged until the full 

$250 expungement fee is paid. KRS 431.073(5), (7). The money collected from 

expungement fees is distributed as follows: 10% to the Department for 

Libraries and Archives, 40% to the Department of Kentucky State Police, 40% 

 

1 Prior to 2019, the expungement statute required a $500 filing fee. Because the 

amendments to the statute are retroactive, we limit our analysis to the statute as it 

currently exists. We further commend the General Assembly’s actions to make 

expungements more affordable and, by only requiring the expungement fee of those 

who are successful in their application, less financially risky for those who apply.
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among the offices of Commonwealth’s attorneys, and 10% into the trust and 

agency account for deputy circuit clerks.2 KRS 431.0795. We note that the 

expungement statute makes no mention of the IFP statute and its applicability 

or lack thereof. 

Under the IFP statute, “[a] court shall allow a poor person . . . to file or 

defend any action . . . without paying costs . . . and shall have from all officers 

all needful services and process . . . without any fees, except such as are 

included in the costs recovered from the adverse party.” KRS 453.190(1) 

(emphasis added). “The costs to which KRS 453.190 . . . applies are those 

which are necessary to allow indigent persons access to the courts. 

Traditionally those have been interpreted as costs payable to court officials and 

necessary in order to prosecute or defend a claim.” Cummins v. Cox, 763 

S.W.2d 135, 136 (Ky. App. 1988) (citing Stafford v. Bailey, 282 Ky. 525, 138 

S.W.2d 998, 999 (1940)).

“Where the legislature has defined a term or phrase . . . the courts are 

not free to ignore it.” Jenkins v. Commonwealth, 496 S.W.3d 435, 455 (Ky. 

2016) (citing Schroader v. Atkins, 657 S.W.2d 945, 947 (Ky. 1983)). The IFP 

statute allows a qualifying person to file “any action” without paying costs and 

fees. KRS 453.190(1). The legislature has defined the term “action” in KRS 

446.010(1). Under that statute, “‘[a]ction’ includes all proceedings in any court 

 

2 We recognize the hardship our holding may place on the agencies who benefit 

from the expungement fee. However, we cannot allow that potential hardship to color 

our analysis of the statutes at issue. We merely interpret the statutes as enacted by 

the General Assembly.
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of this state.” Id. (emphasis added). That is an extraordinarily broad definition 

that is perhaps broadened even further by the use of the term “any” before 

“action” in the IFP statute. Under the definition of “action” as provided by the 

legislature, we see no interpretation of the IFP statute that could preclude an 

expungement from being considered an “action” for purposes of that statute. 

The Commonwealth argues that an expungement should not be 

considered a separate action for purposes of the IFP statute because the 

application for expungement must be “filed as a motion in the original criminal 

case.” KRS 431.073(1). However, we note that an expungement is completely 

separate from the underlying criminal case. The mere fact that a filing fee is 

required is evidence of this, as filing fees are not required for other types of 

motions (such as a motion to suppress or a motion in limine) that would 

ordinarily be filed as part of a criminal case. Further, an expungement action 

does not ask about the strength of the evidence underlying the conviction or 

whether there was any sort of procedural defect in the conviction. The only 

questions in an expungement action that relate to the original criminal case are 

of what crime was the applicant convicted and how much time has passed 

since the completion of the applicant’s sentence.

In summary, the broad definition of “action” provided by the legislature, 

paired with the stand-alone nature of the expungement proceeding, leads us to 

hold that the IFP statute applies to an application for expungement.
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We now turn to the Commonwealth’s argument that if the IFP statute 

applies to an expungement, it only applies to the filing fee and not the 

expungement fee. We find this argument unpersuasive.

The Commonwealth relies largely on Spees v. Kentucky Legal Aid, 274 

S.W.3d 447; however, that case is distinguishable. In Spees, Esmeralda Marie 

Vasquez-Orosco was deemed indigent and permitted to file a divorce action in 

forma pauperis. Id. at 448. Stanley K. Spees was appointed as a warning order 

attorney and fulfilled his responsibilities in that role. Id. He moved the family 

court for an allowance of a fee of $150 to be paid by Vasquez-Orosco or 

Kentucky Legal Aid, the employer of the attorney who represented her. Id. The 

family court denied Spees’s motion on the grounds that Vasquez-Orosco was 

indigent and had been granted IFP status. Id. Spees appealed to the Court of 

Appeals, which affirmed the family court. Id. This Court then granted review to 

determine whether warning order attorney fees are allowed in cases where the 

plaintiff is proceeding in forma pauperis. Id.

Ultimately, we held that Vasquez-Orosco could be required to pay the

warning order attorney fees because the non-payment of those fees did not 

deny her access to the court and did not impede or impair the adjudication of 

her divorce case. Id. at 449–50. We further stated that the “non-payment of the 

fee cannot result in an abatement of the case.” Id. at 450 (citing Francis v. 

Taylor, 593 S.W.2d 514, 516 (Ky. 1980)). We explained that “[t]he interest [the 

IFP statute] is designed to protect is the right of access to the courts, with the 

assurance that indigent persons are not, on account of their indigency, 
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deprived of access to the courts that would otherwise be available.” Id. We 

noted that warning order attorney fees are not required to be paid in advance,

and therefore, the application of these fees “to indigent persons does not limit 

access to the court or to legal process.” Id. at 451. 

This stands in stark contrast to the expungement statute. An indigent 

person is unable to achieve his or her aim—expungement—unless he or she 

pays both the filing fee and the expungement fee. Payment of both fees is 

required to complete the expungement process and obtain all of its benefits. We 

can identify no other situation in our Commonwealth where a judge renders a 

judgment that a litigant is entitled to a benefit under the law, but that litigant 

cannot obtain the benefit of that judgment unless and until he pays a fee.

Because of this, the IFP statute applies to both the $50 filing fee and the $250 

expungement fee. Any other holding would be contrary to the purpose of the 

IFP statute.

III. CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals and remand 

to the Jefferson Circuit Court for proceedings consistent with this Opinion.

All sitting. All concur.
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COUNSEL FOR APPELLANT:

Sammie Stewart Pope

John David Young

Cassandra Florence Kennedy

Legal Aid Society

Michael Patrick Abate

Cassie Chambers Armstrong

Kaplan Johnson Abate & Bird LLP

COUNSEL FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Robert Lee Baldridge

Assistant Attorney General

COUNSEL FOR AMICI CURIAE, AFL-CIO; GREATER LOUISVILLE CENTRAL 

LABOR COUNSEL; KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE 

LAWYERS; AND FRIENDS OF JEFFERSON COUNTY PUBLIC LAW LIBRARY:

Franklin Todd Lewis

Todd Lewis Law

Angela Marie Rea

President, Kentucky Association of Criminal Defense Lawyers

Kurt Xavier Metzmeier

Associate Director of Law Library

University of Louisville Brandeis School of Law