Workforce Development Cabinet, Dept. for Employment Services Division of Unemployment Insurance v. Mary C. Gaines ( 2008 )

RENDERED : NOVEMBER 26, 2008
TO BE PUBLISHED
,vuyrtmt Courf of "PR
2005-SC-000965-DG
WORKFORCE DEVELOPMENT APPELLANT
CABINET, DEPARTMENT FOR
EMPLOYMENT SERVICES,
DIVISION OF UNEMPLOYMENT
INSURANCE
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2004-CA-001146-MR
FRANKLIN CIRCUIT COURT NO . 02-CI-01523
MARY C. GAINES APPELLEE
OPINION OF THE COURT BY JUSTICE SCHRODER
AFFIRMING
The Kentucky Whistleblower Act protects public employees who report
perceived misconduct to certain state entities, or to "any other appropriate
body or authority." The issue in this case is whether "any other appropriate
body or authority" includes the whistleblower's own agency. We hold that it
does.
Since 1972, and until her recent retirement, Appellee Mary C. Gaines
worked for the Appellant, the Jefferson County office of the Division of
Unemployment Insurance, Department for Employment Services, Kentucky
Workforce Development Cabinet (Cabinet) . Despite her advancement from
office assistant to auditor, Gaines stated that she had difficulty in a
department dominated by men: she was paid less than men and asked to do
menial tasks.
These issues resulted in Gaines filing a gender discrimination and
retaliation suit against the Cabinet in 1998, which she and the Cabinet
eventually settled. According to Gaines, after her gender discrimination suit,
her work environment deteriorated. According to the Cabinet, in February of
2002, the Cabinet informed Gaines that some auditors would be transferred
from the downtown Louisville office to the Preston Highway office . Ralph Hunt,
Gaines's supervisor, informed her in the summer of 2002 that she would be
transferred. The Preston Highway office is generally known as the "penal
colony," and many auditors view being transferred there as punishment .
Gaines expressed her objection to the transfer. In November 2002, Gaines filed
a second lawsuit against the Cabinet claiming gender discrimination and
retaliation as a result of her deteriorating work environment.
According to Gaines, on February 6, 2003, she witnessed Hunt and Pete
Sears, an employee from Covington, throwing away confidential and proprietary
information into a publicly accessible dumpster. The information came from
the offices of Howard Founder, John Murphy, Pat Zoll, and Shirley Lyle .
Games stated that, due to the confidential nature of many documents in her
Division, standard procedure was to use "burn boxes" to send documents to
Frankfort to be shredded and destroyed. Therefore, throwing documents into a
dumpster attracted Gaines's attention. In addition, both Founder and Lyle
were retirees involved in litigation against the Cabinet. Gaines believed that
the purged documents were confidential and had bearing on pending gender
discrimination litigation .
Games contacted her attorney, J. Keith Smith, and asked him to report
the - document purge . On Thursday, February 6 (the same day Gaines
witnessed the purging of the documents), Smith contacted Cabinet attorney
Greg Higgins, who contacted Department for Employment Services
Commissioner James F. Thompson. Thompson conducted an investigation,
but concluded that there was no wrongdoing.
On Monday, February 10, two working days later, Gaines received notice
that she was being transferred to the Preston Highway office . Games stated
that four managers collectively presented her with a letter from Commissioner
Thompson, informing Gainer of the move . Gainer also stated that Hunt barred
her from the downtown office and took away her keys and security card. On
March 5, 2003, Gainer amended her complaint to include a whistleblower
claim under KRS 61 .102 . Gainer argued that she was transferred to the
Preston Highway office as retaliation for reporting the document purge.
The Franklin Circuit Court granted summary judgment to the Cabinet on
Gainer's whistleblower claim and her gender discrimination claim. Ajury
found for the Cabinet on the retaliation claim. Gainer appealed from the
circuit court's grant of summary judgment on the whistleblower claim, and the
Court of Appeals reversed. The Court of Appeals concluded that the Cabinet
was not entitled to a judgment as a matter of law, because an internal report to
the Cabinet qualifies as a report to "any other appropriate body or authority"
under KRS 61 .102 (the Kentucky Whistleblower Act) . This appeal by the
Cabinet followed, and this Court granted discretionary review .
The Kentucky Whistleblower Act, codified at KRS 61 .101 et seq., provides
as follows:
No employer shall subject to reprisal, or directly or indirectly use,
or threaten to use, any official authority or influence, in any
manner whatsoever, which tends to discourage, restrain, depress,
dissuade, deter, prevent, interfere with, coerce, or discriminate
against any employee who in good faith reports, discloses,
divulges, or otherwise brings to the attention of the Kentucky
Legislative Ethics Commission, the Attorney General, the Auditor
of Public Accounts, the General Assembly of the Commonwealth of
Kentucky or any of its members or employees, the Legislative
Research Commission or any of its committees, members or
employees, the judiciary or any member or employee of the
judiciary, any law enforcement agency or its employees, or any
other appropriate body or authority, any facts or information
relative to an actual or suspected violation of any law, statute,
executive order, administrative regulation, mandate, rule, or
ordinance of the United States, the Commonwealth of Kentucky, or
any of its political subdivisions, or any facts or information relative
to actual or suspected mismanagement, waste, fraud, abuse of
authority, or , a substantial and specific danger to public health or
safety. No employer shall require any employee to give notice
prior to making such a report, disclosure, or divulgence .
KRS 61 .102(1) (emphasis added) . This case is purely a matter of statutory
interpretation; statutory interpretation is a question of law, and this Court
reviews it de novo. Neurodiagnostics, Inc. v. Kentucky Farm Bureau Mut. Ins .
Co. , 250 S.W.3d 321, 325 (Ky. 2008) .
We begin with several general principles of statutory interpretation. In
Kentucky, statutes are to be "liberally construed with a view to promote their
objects and carry out the intent of the legislature . . . . " KRS 446-080M. In
addition, words and phrases are to "be construed according to the common
of
and approved usage language" unless a word has a certain technical
meaning. KRS 446.080(4) . Finally, statutes which are remedial in nature
should be liberally construed in favor of their remedial purpose . Kentucky Ins.
Guar. Assn. v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 611 (Ky. 2000) .
The Whistleblower Act's purpose "is to protect employees who possess
knowledge of wrongdoing that is concealed or not publicly known, and who
step forward to help uncover and disclose that information." 1 Davidson v.
Commonwealth, Dept of Military Affairs, 152 S.W.3d 247, 255 (Ky.App. 2004)
(quoting L4euwissen v. Dept of Interior, 234 F.3d 9, 13 (Fed . Cir. 2000)) . The
Art has a remedial purpose in protecting public employees who disclose
wrongdoing. It serves to discourage wrongdoing in government, and to protect
who
those make it public. The purpose of the Whistleblower Act is clear, and it
must be liberally construed to serve that purpose.
KRS 61 .102(l) specifically lists a number of bodies and agencies to whom
employees may make a protected disclosure, but also protects disclosures to
"any other appropriate body or authority." The Cabinet argues that all entities
listed in the statute are "third party entities with investigatory authority for
wrongdoing by public agencies." Therefore, the Cabinet argues, "any other
appropriate body or authority" should be limited to entities of this type.
However, the entities specifically listed in KRS 61 .102(l) are not so narrow.
1 Then-Judge (now Chief Justice) Minton concluded that the Kentucky Whistleblower Act is so
similar to the federal Whistleblower Protection Apt VhTYO that we can look to federal precedent
for guidance . Davidson, 152 S.W.3d at 255. The Davidson court therefore looked to
Meuwissen.s conclusions about the NVRA. Id .
For example, the statute specifically protects disclosures to any member
or employee of the judiciary or the General Assembly. But not every employee
possesses investigatory authority. In the case of the judiciary, it would be
inappropriate for a member or employee to take any action at all beyond
passing along the information to the proper authority. The list of entities in
KRS 61 .102(l) is not limited to those with investigatory authority. Instead, the
who
list encompasses those may have authority to remedy or report perceived
misconduct in a particular situation . 2
We believe that "any other appropriate body or authority" should be read
to include any public body or authority with the power to remedy or report the
perceived misconduct. This interpretation serves the goals of liberally
construing the Whistleblower Act in favor of its remedial purpose, and of giving
words their plain meaning. Generally, the most obvious public body with the
power to remedy perceived misconduct is the employee's own agency (or the
larger department or cabinet) .
When a court construes statutory provisions, it must presume "that the
legislature did not intend an absurd result." Commonwealth, Cent. State
How. v. Gray, 880 S-W.2d 557 (Ky. 1994); see also Renaker v. Commonwealth ,
889 S.W.2d 819, 820 (Ky .App. 1994), Williams v. Commonwealth, 829 S.W.2d
942, 944 (Ky.App. 1992) . The Cabinet's interpretation of the Whistleblower
Act, however, would lead to just such an absurd result.
2 The inclusion of "any other appropriate body or authority" lends additional support to this
interpretation . The plain meaning of appropriate is "[s]uitable for a particular person,
condition, occasion, or place ; fitting." American Heritage Dictionary (4th ed. 2000).
The Whistleblower Act actually contemplates internal disclosures when it
states that "[n]o employer shall require any employee to give notice prior to
making such a report, disclosure, or divulgence ." KRS 61 .102(1) . The
Cabinet's argument suggests that, while an employer cannot force an employee
to first make an internal report, the employer is free to fire that employee if she
chooses to do so. It should be plainly obvious why this is an absurd result.
The Cabinet would have this Court reward an employee who makes a
report to an "appropriate" outside entity, but punish the employee who reports
internally. External reporting of wrongdoing is certainly valuable. However,
minor wrongdoing can often be addressed internally. It would be absurd to
punish an employee for reporting through the proper channels prior to making
a report to the legislature, the judiciary, or law enforcement.
An internal report is often the logical first step, and in many cases may
be the only step necessary to remedy the situation. It seems absurd for a low-
level state employee to make a report directly to the Attorney General or
Legislative Resource Commission, or to law enforcement or a regulatory body.
In the case of minor misconduct, law enforcement or a regulatory body may be
without power to remedy the situation.
For example, as Appellee suggests in her brief, it would be absurd for a
state mechanic to report misuse of state vehicles directly to the General
Assembly, the Attorney General, or others named in KRS 61 .102(l) . And in
such a situation, state or federal law enforcement would have no reason to
intervene. Someone within the same agency is the most logical place to begin.
Even in the case of more serious misconduct or outright violation of the law,
employees may wish to first make an internal report.
The Cabinet warns that our interpretation of the Whistleblower Act could
result in public employees using "an internal complaint relating to inefficient
paper recycling, excessive use of paper clips, or impoliteness by a supervisor"
to insulate themselves from any sort of discipline. However, the Whistleblower
Act requires that an employee must make the report or disclosure in good faith.
Davidson, 152 S.W.3d at 251 . The "savvy public employee" the Cabinet warns
us about would not be making his or her report in good faith.
Finally, the Cabinet argues that the Court of Appeals erred by not
considering, as an alternative grounds for upholding the summary judgment,
Gaines's failure to establish a causal connection between her reporting the
document purge and her transfer to Preston Highway. The Cabinet points to
the fact that Gaines had known for some time that she was to be transferred to
Preston Highway.
Summary judgment is appropriate only when "there is no genuine issue
as to any material fact and . . . the moving party is entitled to a judgment as a
matter of law!
CR 56.03. The moving party must show that "the adverse
party could not prevail under any circumstances." Steelyest, Inc. v. Scansteel
Service (Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) .
Here, Gaines alleged that she was transferred two working days after she
reported the document purge. She also alleged that four managers collectively
presented her with a letter informing her of her transfer, and that she was told
not to return to the downtown office unless summoned . The evidence in this
case presents a genuine issue of material fact as to whether there was a causal
connection between Gaines's report and her transfer. This case also presents a
genuine issue of material fact as to the ultimate issue: whether Gaines was
retaliated against as a result of her report. These are questions for a jury.
Under the Kentucky Whistleblower Act, a public employee makes a
report to an "appropriate body or authority" whenever she makes her report to
a public entity with the power to remedy or report the perceived misconduct .
Games made her report to her own Division, which certainly had the power to
remedy the situation. Therefore, it cannot be said that the Cabinet is entitled
to a judgment as a matter of law.
For the foregoing reasons, the judgment of the Court of Appeals is hereby
The
affirmed. partial summary judgment in favor of the Cabinet on the
whistleblower claim is vacated and remanded to the Franklin Circuit Court for
proceedings consistent with this opinion
Cunningham, Scott, and Venters, JJ., concur. Special Justice David T.
Royse dissents by separate opinion in which C .J . Minton, and Special Justice
Stewart E. Conner joins . Abramson and Noble, JJ., not sitting.
COUNSEL FOR APPELLANT:
Stewart Christopher Burch
Logan & Gaines, PLLC
114 West Clinton St .
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
David O'Brien Suetholz
Segal, Lindsay & Janes PLLC
515 Park Ave .
Louisville, KY 40208
Herbert Lee Segal
Segal, Lindsay & Janes PLLC
515 Park Ave.
Louisville, KY 40208
RENDERED : NOVEMBER 26, 2008
TO BE PUBLISHED
,;vuyr-rrar Courf of lrnfurhV
'~ft
2005-SC-000965-DG
WORKFORCE DEVELOPMENT
CABINET, DEPARTMENT FOR
EMPLOYMENT SERVICES,
DIVISION OF UNEMPLOYMENT
INSURANCE APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO . 2004-CA-001146-MR
FRANKLIN CIRCUIT COURT NO . 02-CI-01523
MARY C . GAINES APPELLEE
DISSENT BY SPECIAL JUSTICE ROYSE
Respectfully, I dissent. I would reverse the decision of the Court of
Appeals because Ms . Gaines failed to satisfy the express statutory prerequisites
for initiating an action under KRS 61 .102, and thus, the Franklin Circuit Court
acted properly in granting summary judgment against her on this statutory
cause of action . I believe the interpretation of KRS 61 .102 is straightforward
under well-established principles of statutory construction.
The basic question before this Court is : Did Ms . Gaines provide the
required notice under KRS 61 .102, considering that her report of alleged
wrongdoing was made through her counsel to counsel for the Cabinet for whom
she worked and against whom she was complaining. Neither the Cabinet nor
its General Counsel is among the agencies and individuals enumerated in KRS
61 .102(l) . Thus, the only inquiry for this Court is whether the Cabinet,
through its General Counsel, qualifies as ". . . any other appropriate body or
authority . . ." as set forth in the statute. We must determine this question by
employing Kentucky canons of statutory construction to arrive at an objective
interpretation of the statute that accurately reflects the General Assembly's
actual intent. As Justice Cooper explained in Travelers Indem . Co. v. Reker,
100 S .W.3d 756 (Ky. 2003):
[T]he applicable rule of construction with respect to matters not
expressed in a statute is that a court must refer to the words used
in enacting the statute rather than surmising what may have been
intended but was not expressed. . . . Where a statute is intelligible
on its face, the courts are not at liberty to supply words or insert
something or make additions which amount, as sometimes stated,
to providing for a casus omissus, or cure an omission.
Id . at 765 (internal citations and quotations omitted) .
Kentucky's courts, until today, have abided by the long-standing doctrine
of ejusdem generis. As explained by this Court, ejusdem generis "is used as a
tool of construction when a general word or phrase follows a list of specific
persons or things . The general word or phrase will be interpreted to include
only persons or things of the same type of those listed." Com. v. Plowman,
86 S.W .3d 47, 50 (Ky. 2002) . "Where specific items or classes are followed by
more general language, the general words should be restricted by the specific
designations so that they encompass only items of the same class or those
specifically stated." Rainey v. Mills, 733 S .W.2d 756, 758 (Ky. App. 1987) .
Although absent from the Majority Opinion, this canon of construction
was apparently still alive and well in Kentucky just two years ago, as
demonstrated in the case of Garcia v. Com ., 185 S .W .3d 658 (Ky. 2006) . In
that case, now-Justice Schroder and now-Chief Justice Minton joined with
Judge Taylor in relying on the doctrine of ejusdem generis to determine
whether a cracked windshield constituted a nuisance under KRS 189.020 .
That statute provides :
Every vehicle when on a highway shall be so equipped as to make
a minimum of noise, smoke or other nuisance, to protect the rights
of other traffic, and to promote the public safety.
In Garcia, a police officer found ten (10) bricks of marijuana as a result of
a traffic stop purportedly for a cracked windshield, which the officer believed
was a violation of KRS 189.020. The threejudge panel of the Court of Appeals
concluded that the trial court should have suppressed the ten (10) bricks of
marijuana from evidence because the traffic stop violated the Fourth
Amendment inasmuch as a cracked windshield is not a violation of KRS
189 .020. Judges Schroder, Minton and Taylor relied extensively on the
doctrine of ejusdem generis to conclude that the statutory phrase "other
nuisance" could only be interpreted to include those nuisances of a kind
similar to noise and smoke, and that a cracked windshield did not qualify
(unless it was so severely cracked as to constitute a driving hazard, which the
court concluded was not the case) . Id. at 664-65 .
To effectuate legislative intent, we believe ``other nuisance' should
be interpreted as including only those nuisances of a similar kind
as noise and smoke. Accordingly, we do not interpret the term
``other nuisance' in KRS 189 .020 as encompassing a cracked
windshield.
Id. at 664 (emphasis added).'
In the case at hand, we see that KRS 61 .102(1) expressly enumerates
seven agencies or classes of individuals to whom a report can be made: (1) the
Kentucky Legislative Ethics Commission, (2) the Attorney General, (3) the
Auditor of Public Accounts, (4) the General Assembly of the Commonwealth of
Kentucky or any of its members or employees, (5) the Legislative Research
Commission or any of its committees, members or employees, (6) the judiciary
or any member or employee of the judiciary, and (7) any law enforcement
agency or its employees. Each of these agencies or classes of individuals is
viewed as having investigatory and/or adjudicatory authority within the
Commonwealth . Applying the principle of ejusdem generis, it cannot be
reasonably concluded that an in-house lawyer for the Workforce Development
Cabinet, the very agency where Ms. Gaines worked, is of the same class or
nature as the individuals and entities enumerated in the statute .
1 The last two centuries of Kentucky jurisprudence unequivocally demonstrate that the
doctrine of ejusdem generis is, and has always been, a fundamental canon of statutory
construction in this Commonwealth . See e.g., Fiscal Court of Jefferson County. v.
Brady, 885 S.W .2d 681, 685 (Ky. 1994) (in which Justice Leibson explains and applies
ejusdem generis as a "primary rule of statutory construction", and refers the reader to
Bloemer v. Turner, 137 S.W.2d 387 (Ky. 1940) and Jefferson County Fiscal Court v.
Jefferson County , 128 S .W.2d 230 (Ky. 1939)) ; Robinson v. Ehrler, 691 S.W.2d 200,
204 (Ky. 1985) ("The rule of ejusdem generis applies. Such words are general words,
not to be construed in their widest extent, but to be held as applying only to things of
the same general kind or class as those specifically mentioned.") ; Barren River State
Boat Dock, Inc. v. K 8. R Mfg. Co., 167 S.W.3d 676 (Ky.App . 2005) ; Smith v. Cochran,
7 Bush 147, 70 Ky. 147 (Ky. 1870) .
To construe the phrase "any other appropriate body or authority" in the
manner adopted by the Majority not only fails to adhere to the concept of
ejusdem generis, but it wholly negates the specific enumerations that the
General Assembly did choose to include . If the only requirement is that a
report be made to "an appropriate body or authority," as the Majority suggests,
then the General Assembly's enumeration of seven acceptable classes of
individuals and agencies is, for all practical purposes, rendered meaningless .
"The presumption is that the Legislature intends an Act to be effective as an
entirety. No rule of statutory construction has been more definitely stated or
more often repeated than the cardinal rule that significance and effect shall, if
possible, be accorded to every part of the Act." George v. Scent, 346 S.W.2d
784, 789 (Ky. 1961) . "It is elementary that a statute should be construed, if
possible, so that no part of it is meaningless or ineffectual." Brooks v. Meyers,
279 S .W.2d 764 (Ky. 1955) .
The Majority has today decided that a public employee satisfies the
prerequisites for KRS 61 .102 if she makes a report to her employer, regardless
of who that employer may be or whether the employer is enumerated in KRS
61 .102 . An employer is ipsofacto an "appropriate body or authority." In
reality, the Court has added an eighth enumerated category to the list: "the
individual's employer ." Notably, in KRS 61 .101(2), the General Assembly
specifically undertook to define the word "Employer" for purposes of KRS
61 .102 and 61 .103. Yet nowhere in KRS 61 .102(l) does that term appear as
an acceptable body whom to report. Likewise, in KRS 61 .102(2), the General
Assembly gave protection to those who aid an employee who "makes public"
any wrongdoing set forth in KRS 61 .102(l) . This certainly evinces a legislative
intent to require some manner of external report to trigger the statutory
whistleblower protections.2
It is important to remember that the cause of action under which Ms .
Gaines sought relief is one created out of whole cloth by the General Assembly .
It does not find its origin in the common law nor does it have any
underpinnings in jural rights. Thus, we must respect the fact that if the
General Assembly undertakes to create a legislative cause of action it certainly
retains the authority, within constitutional bounds, to prescribe the elements,
limitations and/or prerequisites for one who seeks to pursue such an action.
See Com., Revenue Cabinet v. Gossum, 887 S.W.2d 329 (Ky. 1994) ("It is to be
recognized that a right to a refund of illegally or improperly collected taxes does
not derive from the common law, but is a matter of legislative grace . It follows
that if appellees are to be successful in this action, they must bring themselves
within the terms of the statute authorizing a refund .") Moreover, KRS
61 .101(2) is not the only statutory protection the General Assembly has
provided for public employees . Other protections are afforded, for instance,
under the state personnel procedures in KRS Chapter 18A and the Kentucky
Civil Rights Act, KRS Chapter 344.
2 The Majority attempts to support its conclusion with the provision in KRS 61 .102(1)
that "no employer shall require any employee to give notice prior to making such a
report, disclosure, or divulgence ." This provision actually contradicts the Majority's
interpretation . The obvious intent of this provision is to make clear that an employee
need not give internal notice prior to making a report to one of the statutorily
enumerated individuals or entities .
The Majority points out that the subject statute is "remedial," and
therefore, must be "liberally construed ." While this is true, simply because a
statute is remedial in nature does not mean that it carries with it transcending
powers that trump well-accepted canons of construction or firmly established
principles of separation of powers. "While liberal construction is proper to
effect a beneficent purpose, a statute should not be construed so as to give it a
meaning which the language of the statute does not fairly and reasonably
support as it is neither the duty nor the prerogative of the judiciary to breathe
into the statute that which the Legislature has not put there ." Com. v. Garnett,
8 S .W .3d 573, 576 (Ky. App. 1999) (internal citations and quotations omitted) .
Respectfully, the Majority's interpretation of the statute grafts additional
language onto the statute which the General Assembly did not undertake to do.
"Our duty is to ascertain and give effect to the intent of the General Assembly .
We are not at liberty to add or subtract from the legislative enactment nor
discover meaning not reasonably ascertainable from the language used ."
Beckham v. Board of Educ . Of Jefferson County, 873 S .W.2d 575, 577 (Ky.
1994) ; see also , City of Covington v. Kenton County, 149 S .W.3d 358, 362 (Ky.
2004) . "[I]t is neither the duty nor the prerogative of the judiciary to breathe
into the statute that which the Legislature has not put there ." Com. v.
Gaitherwrig-
ht, 70 S.W.3d 411, 413 (Ky. 2002) .
The fundamental premise for today's decision is that "statutes are to be
liberally construed with a view to promote their objects and carry out the intent
of the legislature ." As this Court noted in Bob Hook _Chevrolet Isuzu.,. Inc . v.
Com. , 983 S .W .2d 488 (Ky. 1999), however, "[a] corresponding rule of
construction is that a statute should be construed, if possible, so that no part
of its provisions are rendered meaningless." The interpretation of the phrase
"or any other appropriate body or authority" reached today by the Majority,
engulfs the entire statute and renders the fifty-seven (57) words immediately
preceding that phrase mere surplusage.
While the Majority persuasively articulates various reasons why it might
be better to allow internal reporting to one's employer as a sufficient
prerequisite, our task is not to make such policy determinations, but instead,
to determine what the legislature actually intended, gleaning this intent from
the four corners of the unambiguous statutory language the legislature chose
to employ . Gathright v. H.M. Byllesby 8s Co., 154 Ky. 106, 157 S .W. 45, (1913)
("Courts are interpreters and not makers of the law; it is not the province of the
courts to usurp the functions of the Legislature . . . .") ; Chapman v. Chapman,
498 S .W.2d 134, 137 (Ky. 1973) ("[I]t is for this court to interpret the law, not
to enact legislation .") Thoughtful policymakers could certainly have a lively
debate about the wisdom of the Kentucky General Assembly in its choice of
enumerated agencies and individuals to whom reports may be made. By way
of example, many states extend protection to internal disclosures, 3 some states
3 Alaska, AS § 39 .90.100- .150; Colorado, C.R.S.A. §§ 24-50 .5-101-107 ; Illinois,
I.L.C.S. 174/1-174/35 ; Louisiana, LSA-R.S.23:967; Minnesota, M.S.A. § 181 .932 ;
Missouri, V.A .M.S . § 105 .055; Montana, MCA § 39-2-901-915; Nevada, N.R.S. §§
281 .611-.671 ; North Carolina, N.C.G.S .A. §§ 126-84-88; Pennsylvania, 43 P.S. §§
1421-1428 ; South Carolina, SC ST §§ 8-27-10-50 ; West Virginia, W. Va. Code §§ 6c-1-
1-8; and Wisconsin, W.S.A. §§ 230 .80-.90.
require an internal disclosure prior to an external disclosure, 4 and Congress
has seen fit to treat whistleblowing requirements differently under different
legislative acts .5 In each of these instances, the legislative body has applied its
legislative judgment to declare the circumstances under which it will allow a
private cause of action for whistleblowing . The point is that these debates
must be left to thoughtful policymakers, not judges, no matter how thoughtful
they may be.
4 Indiana, IC § 4-15-10-4, IC § 22-5-3-3 ; Maine, 26 M.R.S .A. §§ 831-840 ; New
Hampshire, N.H. Rev. Stat. §§ 275-E: l-E :2 ; Ohio, R.C. §§ 4113.51 - 4113 .53 .
5The Whistleblower Protection Act protects "any disclosure" without regard to whom
that disclosure is made. 5 U.S.C. § 2302(b)(8) . Sarbanes-Oxley protects certain private
sector employees only when they provide specific categories of information to "a
Federal regulatory or law enforcement agency; any Member of Congress or any
committee of Congress; or a person with supervisory authority over the employee (or
such other person working for the employer who has the authority to investigate,
discover, or terminate misconduct) ." 18 U.S.C. § 1514A (a)(1). Other federal statutes
do not address the person to whom disclosures should be made, but rather protect
disclosures only in the context of specific proceedings . See, e.g., 29 U.S .C. § 1140
(protecting employees who have "given information" or "testified" in an ERISA "inquiry
or proceeding" ; 33 U.S.C. § 1367 (protecting employees who "filed, instituted, or
caused to be filed or instituted any proceeding" under the Clean Water Act) .
The case of Davidson v. Com ., Dept. of Military Affairs, 152 S.W.3d 247 (Ky.
App. 2004) is inapposite. The Davidson Court quoted an earlier opinion in
acknowledging that the Kentucky statute is similar in almost every respect to the
federal whisteblower statute, and thus, it was acceptable to look to federal precedent
for guidance. Id. at 255. Importantly, the context in which the Court reviewed these
authorities was with regard to whether a report of publicly known information is a
protected disclosure . On that issue, both the Kentucky statute and the federal statute
were silent, and thus, it was appropriate to consider federal precedent. Notably, the
Davidson Court specifically analyzed whether the report was made to a proper party
under the express language of the Kentucky statute . Id. at 253-54. Obviously, the
Davidson Court did not believe the Kentucky statute was similar in this respect,
because no such analysis is required under the federal statute which protects "any
disclosure," without limitation as to whom the disclosure is made.
[A] conclusion might appear to be harsh, but courts are not
responsible for conditions brought about by statutory enactments .
Their duty ceases when the task of construction is performed and
when it is found that the statute transgresses no inhibition of the
Constitution . Neither are courts authorized to inject into a statute
a provision, or part of another independent one, upon the theory
that there is no substantial reason for its omission from the
statute under consideration, since they are not authorized to
amend a statute to conform to what may be concluded as a better
reason for its enactment, nor to supply a reason when the
Legislature enacting it has not done so .
Taylor v. Fidelity 8v Casualty Co . of New York, 246 Ky. 598, 55 S .W.2d
410, 413 (1932) .
The Majority justifies its interpretation in this case so as not to allow the
infamous "absurd result." Without more, however, this same justification
could be used to reach a more desirable legislative result in any case of
statutory interpretation - without regard for canons of construction or
separation of powers. A logically absurd, clearly unintended result, however, is
something quite different than a result which is simply contrary to what we
might believe is good policy or better procedure . The Judiciary is not charged
with interpreting statutes so as to improve upon inartfully worded or even ill-
conceived statutes.
Under the Kentucky Constitution, the General Assembly is left to its own
devices to pass bad laws, or badly drafted ones; so long as it does not pass
unconstitutional ones . Manning v. Sims, 308 Ky. 587, 213 S .W.2d 577, 580
(1948) ("Another rule that is uniformly invoked in statutory construction is that
the propriety, wisdom and expediency of legislation is exclusively a legislative
question.") ; Mondie v. Com . , 158 S .W .3d 203, 209 (Ky. 2005) ("It is the province
10
of this Court under the constitution to decide what the law is and not to
declare what it should be . If the statute "is unwise or impolitic, the remedy
rests with the Legislature; not with the courts .'J . Absent some fatal flaw such
as unconstitutional ambiguity or vagueness - neither of which are even alleged
here - it is the Judiciary's solemn duty to hold that line and to do so with
unwavering discipline and restraint. Ky. Const. § 27; Vaughn v. Knopf, 895
S .W.2d 566, 568 (Ky. 1995) ("[I]t has been our view, in interpreting Section[s]
27 and 28, that the separation of powers is fundamental . . . and must be
``strictly construed.")
While a minor entreat into legislative draftsmanship may seem wholly
justified and appropriate in a given case, we must keep in mind that the
separation of powers is just as important for the Judiciary's autonomy as it is
for the other two branches of government, lest we be the ones to blur the very
line that protects our own authority. As Justice Keller wrote for a unanimous
Supreme Court in Elk Horn Coal Corp. v. Cheyenne Resources, Inc . , 163
S.W.3d 408, 422 (Ky. 2005) :
Because of the judiciary's unique position as the final unchecked
arbiter of constitutional disputes, we should be particularly
vigilant to restrain our own exercise of power. It is important that
the powers of the Legislature should not stand or fall according as
they appealed to the approval of the judiciary; else one branch of
government, and that the most representative of the people, would
be destroyed, or at least completely subverted to the judges.
(Internal quotations and citations omitted .)
An equally eloquent pronouncement of this important principle was
articulated by Justice Scott in his vigorous dissent in Stephenson v.
Woodward , 182 S.W .3d 162 (Ky. 2006) (Scott, J. Dissenting) :
[E]ach of our three branches of government were intentionally
hampered in some areas, so that they would all remain equal; so
no one branch, could ever become greater than the others, could
ever garner enough power, to overcome the greatest part of
government - the people . This government, or structure, they built,
consists of 264 parts, or sections (the Constitution), and when you
change one of these sections, you change the whole structure.
Maybe just a little today, but that change will grow in time and
then someday, you will find, to your dismay, that the whole
structure has changed .
Id. at 211 .
Because I believe the Franklin Circuit Court properly granted summary
judgment by applying the plain language of KRS 61 .102, I would reverse the
Court of Appeals . For this reason, I would not reach the Cabinet's alternate
argument that it was entitled to summary judgment because Ms. Gaines could
not demonstrate a factual issue on retaliation inasmuch as the decision to
transfer her allegedly preceded her whistleblowing . More importantly, it does
not appear the Circuit Court was even presented with, much less decided, a
motion for summary judgment on that issue. The Court of Appeals certainly
did not address such a ruling . Thus, I agree with Ms. Gaines that this
question is not properly before this Court.
For the foregoing reasons, I respectfully dissent.
Minton, CJ. and Special Justice Stewart E. Connor join this dissent.