Opinion
NO. 2015-CA-001107-MR
02-03-2017
CHRISTOPHER WALLS APPELLANT v. THEODORE KUSTER, ET AL. APPELLEE
BRIEF FOR APPELLANT: CHRISTOPHER WALLS Daniel J. Canon Louisville, Kentucky BRIEF FOR APPELLEE: THEODORE KUSTER Angela E. Cordery Office of Legal Services Justice and Public Safety Cabinet Brief for Amicus Curie Kentucky Association of Criminal Defense Lawyers Maureen Sullivan Louisville, Kentucky Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 07-CI-00216 OPINION AND ORDER
DISMISSING APPEAL
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BEFORE: CLAYTON, COMBS, AND MAZE, JUDGES. MAZE, JUDGE: Christopher Walls appeals from an order of the Franklin Circuit Court dismissing his petition for declaratory relief against members of the Kentucky Parole Board (the Board). He argues that the Board's prior order denying parole and directing that he serve out his life sentence unconstitutionally extends his sentence and arbitrarily precludes him from being considered for parole at any future date. However, we note that Walls failed to specifically name all of the members of the Board in his Notice of Appeal. Given his failure to join all indispensable parties, we must dismiss his appeal.
The underlying facts of this action are not in dispute. In 2007, Walls filed a Petition for Declaration of Rights against the members of the Board, arguing that the Board's 1993 serve-out order unconstitutionally extended his sentence to life without parole, which was not an authorized sentence at the time of his conviction. He asked the circuit court to direct the current Board to conduct a new parole hearing. On behalf of the Board, the Justice and Safety Cabinet responded with a motion to dismiss, taking that position that, since an inmate has no constitutional or inherent right to parole, the Board's serve-out order does not make his life sentence more burdensome. In an order entered on September 13, 2007, the trial court agreed and dismissed Walls's petition.
Shortly thereafter, Walls filed a motion to proceed in forma pauperis on appeal, and a motion for designation of records. However, the circuit court apparently overlooked the motions and never ruled on them. In 2014, Walls filed a CR 60.02 motion for relief from the judgment based on the delay. The circuit court granted the motion, and vacated and re-issued the September 13, 2007, order dismissing the petition.
Kentucky Rules of Civil Procedure. --------
Walls's Notice of Appeal only named Theodore Kuster, who previously served as chairperson of the Board. Kuster's name on the Notice of Appeal was followed by the designation, "et al." CR 73.03(1) specifically requires that "[t]he notice of appeal shall specify by name all appellants and all appellees ("et al." and "etc." are not proper designation of parties)...." The failure to name an indispensable party in the notice of appeal is a jurisdictional defect that cannot be remedied after the thirty-day period for filing a notice of appeal as provided by CR 73.02 has run. Browning v. Preece, 392 S.W.3d 388, 391 (Ky. 2013). Since Walls did not name the Board itself as a party to his action below, all of the individual members of the Board would be indispensable parties to any appeal seeking declaratory relief against the Board. Since those members or their successors are not parties to this appeal, this Court does not have jurisdiction to address the merits of Walls's appeal.
Accordingly, we dismiss Walls's appeal for failure to join indispensable parties.
ALL CONCUR /s/_________
ENTERED /s/_________
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT:
CHRISTOPHER WALLS Daniel J. Canon
Louisville, Kentucky BRIEF FOR APPELLEE:
THEODORE KUSTER Angela E. Cordery
Office of Legal Services
Justice and Public Safety Cabinet Brief for Amicus Curie
Kentucky Association of Criminal
Defense Lawyers Maureen Sullivan
Louisville, Kentucky Frankfort, Kentucky