concurring in part and dissenting in part.
I concur with the majority opinion as to the constitutionality of the statute, the awarding of punitive damages, and the application of the amended statute, but conclude that the trial judge committed error in granting a trial by jury.
While the right to trial by jury is guaranteed by Section 7 of the Kentucky Constitution and governed by Rules 38 et seq., of the Kentucky Rules of Civil Procedure, it is limited to those common-law matters to which a jury trial existed in 1791. Johnson v. Holbrook, Ky., 302 S.W.2d 608, 611 (1957). KRS 61.101 et seq., commonly known as the Kentucky Whistleblower Act, created a statutory cause of action which did not exist prior to 1986. Two issues must therefore be addressed: (1) whether the act itself authorizes trial by jury in actions of this type; and (2) whether actions brought under the act are analogous to any action available under common law, thus invoking the right to trial by jury.
The Court of Appeals was correct when it stated that “the act implies that an employee filing an action under the statute is to have his claim adjudicated by the court.” Commonwealth v. Vinson, Ky. *171App., 1997-CA-001877-MR at 28 (rendered February 12, 1999). The language of the act is clear in this respect, not only making no mention of a right to trial by jury, but specifically addressing the role of the court in such actions:
A court, in rendering a judgment in an action filed under KRS 61.102 and 61.103, shall order, as it considers appropriate, reinstatement of the employee, and the payment of back wages, full reinstatement of fringe benefits and seniority rights, exemplary or punitive damages, or any combination thereof. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees.
KRS 61.990(4) (emphasis added).
The language used evinces the legislature’s intent to have such matters adjudicated solely by the court, and does not support the right to a jury trial. This Court has previously held that “where a right is created by statute and committed to an administrative forum, jury trial is not required.” Kentucky Commission on Human Rights v. Fraser, Ky., 625 S.W.2d 852, 854 (1981); see also Mays v. Department for Human Resources, Ky.App., 656 S.W.2d 252, 253 (1983). To interpret the act as containing an implied requirement for trial by jury not only departs from previous pronouncements by this Court, but likewise contorts the language of the statute.
In order for the statutory language to be consistent with the majority’s interpretation, there would need to be some analogy for the Whistleblower Act in the common law. The majority draws such an analogy in the premise that a cause of action for damages, even under a specific statute, is like any damage suit under common law, thus appropriate for trial by jury. Meyers v. Chapman Printing Co., Inc., Ky., 840 S.W.2d 814, 819 (1992). Such a standard, however, would allow any plaintiff to claim the right to trial by jury merely by asking for damages. The proper approach is for the trial court to evaluate “the true nature and effect of the basic issues raised by the claims and the defenses and the relief which may be granted to the parties.” Johnson, supra, at 610. Such analysis reveals that the cause of action in the case at bar is equitable in nature, a conclusion even the Court of Appeals implicitly embraces. Commonwealth v. Vinson, supra, at 25.
In my opinion, there is no analogy for the Whistleblower Act to be found in the common law. Prior to enactment of the statute, a state employee who suffered such reprisal and discrimination such as that established in this case had no legal cause of action; at best, the employee had an equitable claim. As no right to trial by jury would have been possible under the common law, and none is authorized by the language of the statute, it was error for the court to grant this right.
As for the Court of Appeals’ characterization that such jury was advisory in nature, the record shows that it was not designated as such until the trial court adopted the jury’s findings as its own. Thus, the court allowed the jury to usurp the fact-finding obligation that the Whis-tleblower Act assigns to the trial judge alone. Considerations of fundamental fairness, as well as the extra-jurisdictional cases cited within Appellant’s brief, convince me that this Court should hold that empaneling an advisory jury under Rule 39.03 of the Kentucky Rules of Civil Procedure at the very least requires some contemporaneous designation of the jury as such by the court.
I would reverse the Court of Appeals on the jury issue and remand this case for retrial consistent with this Opinion.