Fisher v. Kentucky Unemployment Insurance Commission

JOHNSTONE, Judge. The question is whether an attorney’s signature on a petition for review is sufficient compliance with the “verified complaint” requirement of KRS 341.450 to confer jurisdiction on the circuit court. Because we find this ease indistinguishable from the situation addressed in Monyhan v. Kentucky Unemployment Insurance Commission, Ky.App., 709 S.W.2d 837 (1986), we are constrained to concur in the decision of the circuit judge that it is not. The facts of this case are simple and undisputed. Janet L. Fisher sought review in the Boyd Circuit Court of a decision by the Kentucky Unemployment Commission denying her claim for benefits. Upon the motion of Corbin, Ltd., her former employer, the circuit court dismissed the appeal for failure to verify her complaint as required by KRS 341.450(1). In her appeal to this Court, Ms. [892] Fisher argues that her attorney’s signature on the complaint sufficiently complies with the statutory mandate and that her complaint must, therefore, be reinstated. In the alternative, she asserts that she should be granted leave to amend the petition for review. We cannot agree. While we are not unsympathetic to appellant’s argument, we are simply unable to distinguish appellant’s plight from that which was found to be fatal in Pickhart v. United States Post Office, Ky.App., 664 S.W.2d 939 (1983), and Monyhan, supra. The Court in Pickhart adhered to the long-standing principle that statutes providing for judicial review of the decisions of administrative agencies are to be strictly observed. This view fully comports with the rationale utilized by our Supreme Court in rejecting a claim of substantial compliance in Kentucky Unemployment Insurance Commission v. Carter, Ky., 689 S.W.2d 360, 361-362 (1985): It is argued by Carter that the mentioning of the employer (even though by an erroneous name) in the recitation of facts and the mailing of a copy of the complaint to the employer’s attorney created substantial compliance with the statute. Even if we agreed with the claim, we find no authority before the court to authorize the doctrine of substantial compliance in a case where the appeal process is statutorily created and implemented. In the case of Board of Adjustments of City of Richmond v. Flood, Ky., 581 S.W.2d 1 (1978), the plaintiffs sought judicial review of the decision of the Board of Adjustment, under the aegis of a specific statute KRS 100.347. In direct violation of the terms of that statute, plaintiffs failed to name the Planning and Zoning Commission as a party defendant in their complaint. In ruling that the complaint was to be dismissed for want of jurisdiction, viz., failure to name all parties, we said: There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy. Kentucky Utilities Co. v. Farmers Rural Electric Cooperative Corporation, Ky., 361 S.W.2d 300 (1962); Roberts v. Watts, Ky., 258 S.W.2d 513 (1953).... (Emphasis original). Appellant suggests that this reasoning does not apply to her situation because the shortcoming in her petition was merely ministerial in nature, clearly distinguishable from the omission of an indispensable party. That argument, espoused by the dissent in Pickhart, is certainly not without appeal. Unfortunately, that is not the holding in Pickhart which unequivocally declares the verification requirement to be mandatory and jurisdictional. We perceive our duty as an intermediate appellate court as binding us to defer to principles well established in Kentucky case law. That concept is, in our opinion, basic to a system of jurisprudence founded upon the doctrine of stare decisis. Whatever our view of the advisability of the policy set out in that precedent, we are precluded from simply choosing not to follow the law. The judgment of the Boyd Circuit Court is affirmed. SCHRODER, J., concurs. HUDDLESTON, J., dissents by separate opinion.