Philpot v. Haviland

WINTERSHEIMER, Justice,

dissenting.

I respectfully dissent from the majority opinion because Senate Rule 48, as now written, is in conflict with Section 46 of the Kentucky Constitution.

The clear and unambiguous language of Section 46 of the Kentucky Constitution authorizes any single member of the Senate to “call up” any bill that has either been refused by the committee or has been held by the committee an unreasonable time without action. The constitutional section states that such a bill is to be “considered in the same manner it would have been considered if it had been reported.”

In 1994, the Senate Judiciary Committee failed to consider certain bills and on March 2,1994, specifically rejected a motion by two of the appellants in this case for committee consideration of these bills.

The plain language of Section 46 and the specific debates of that section at the Constitutional Convention indicates that the concern of the original drafters of the 1890 Constitution is not satisfied by a procedural vote. In my view most of the delegates to that Constitutional Convention expressed a strong fear of majority control.

The clear and unambiguous meaning of Section 46 of the Kentucky Constitution was accurately analyzed in Attorney General’s Opinion 78-38 issued in 1978 which stated that Senate Rule 48 violates Kentucky Constitution § 46 insofar as it imposes “conditions, restrictions or limitations” in contravention of the “express directive and intent of Section 46.” The successor to Senate Rule 48 adopted in 1994 also imposes “conditions, restrictions or limitations” upon the right of a member guaranteed by the Kentucky Constitution to have such a bill considered in the same manner as it would have been if reported.

Section 39 of the Kentucky Constitution provides general rule making authority for the Senate. However, that does not confer unlimited authority on the legislative chamber to enact rules in conflict with the constitution. Varney v. Justice, Ky. 6 S.W. 457 (1888).

It is the obligation of this Court to defer to the plain meaning of Section 46 of the Kentucky Constitution. The argument that it is the Senate and not the courts which has the authority to determine when a bill has been held an unreasonable time would have the net effect of nullifying Section 46 of the Kentucky Constitution by placing the Senate in the sole position to interpret the Kentucky Constitution in this regard, thus violating the traditional function of the judicial branch in this respect. It is beyond question that all involved in this dispute adhere to the principle that this is a government of laws and not of individuals. The supreme law of Kentucky is the Constitution, and it is the responsibility of this Court to interpret and apply constitutional law.

The Constitution controls any legislative act repugnant to it and it is the duty of the judiciary to say what the law is. Cf. Mar-bury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). This principle has been restated in Rose v. Council for Better Education, Ky., 790 S.W.2d 186 (1989), when it said “the power to adjudicate belongs to the judiciary.” In that case, this Court did not shrink from its constitutional responsibility to apply and define the language of the Constitution in regard to “an efficient system of common schools throughout the state.” It is the duty of the court to decide what the law is by making a comparison with the Constitution as to whether there is an incompatibility between the acts of the legislature and the Constitution. Bliss v. Commonwealth, 12 Ky.Reports (2 Littell) 90 (Ky.1822). “To allow the General Assembly to decide whether its actions are constitutional is literally unthinkable.” Rose, supra, at 209.

Rose simply restates the obvious, that all civil authority in our society comes from the Constitution and that everyone is subject to the Constitution. Because there is no other available tribunal, resort must be had to the courts to determine whether the legislature has complied with constitutional provisions.

An examination of the relevant parts of Section 46 of the Kentucky Constitution shows no mention of the word “majority” or any equivalent thereof. Senate Rule 48 simply added this word to the otherwise straight forward rule and the result is a direct conflict with Section 46. The Kentucky Constitution envisions the right of any member to call forth a bill and have a floor vote on the bill itself. Under Senate Rule 48, the only vote a member can demand is whether a majority believes the committee has held the bill for an unreasonable time. The effect of this is to permit members to avoid any issue by voting only on the conduct of the committee. Accountability is thereby lost. The constitutional violation is in the extra step or nonsub-stantive vote required by the rule, and not required by the Constitution. Unlike the United States Congress, which is in continuous session for as many as two consecutive years, the Kentucky General Assembly is limited by Section 42 of the Constitution to 60 legislative days. When the reasonable time language of Section 46 is read in conjunction with a 60-day limitation, at some point in time as adjournment sine die approaches, it is indisputable that bills still in committee have been held an unreasonable time.

Certainly no one could doubt that at the moment immediately preceding adjournment this is true, but in a practical sense, the unreasonable time arrives sufficiently in advance of adjournment to nevertheless permit floor action. We understand that the Senate has enacted rules that prohibit the introduction of new legislation after a certain date prior to adjournment. This is an acknowl-edgement of the obvious, that a certain period of time is necessary for the prudent consideration of proposed legislation. It should follow with equal or greater force that a committee must act on legislation assigned to it within a specific period of time prior to adjournment. It is not the responsibility of this Court to tell the Senate to enact any specific rule containing time limitations. The better approach is that the Senate has no power to require by a rule a vote of the majority with respect to what is an unreasonable time.

I must respectfully differ with the concept advanced by the majority opinion that this is a political question. The jurisdiction of the Kentucky Supreme Court includes “the complete determination of any cause.” Ky. Const. § 110(1). “In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal.” Ky. Const. § 115.

Historically, the development of the political question doctrine has been in the federal system. In determining whether a question falls within the political question category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant questions. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

The political question theory is related to the requirement of separation of powers among the three branches of government. The courts will consider issues to be political and outside of the authority of the court when the subject matter or controversy is the constitutionally mandated responsibility of another branch of government. The other two branches of government have the opportunity to operate in their own manner so long as they do not come into conflict with the clear mandates of the Constitution.

Previously, the essential parties to this lawsuit were unable to bring legislation to the floor of the Senate because of the rule. Philpot v. Patton, Ky., 837 S.W.2d 491 (1992). In the 1994 legislative session, Senate Rule 48, as revised, again prevented the consideration of the proposed legislation. The standard for a determination of reasonable time is obvious. The repeated expiration of such a time limit is a clear showing of unreasonableness.

The real and nonpolitieal question issue in this case is whether reasonable time can be construed to mean that legislation can die in committee. There is ample satisfactory criteria for the judicial determination of such a fact. The court must not “stand impotent before an obvious instance of manifestly unauthorized exercise of power.” Baker, supra. We cannot avoid a bona fide controversy as to whether some action denominated as political exceeds constitutional authority. Cf. Baker.

Reliance on Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), is misplaced. The specific question in that case involved the ratification of a constitutional amendment, something which that court had previously determined was in the domain of congressional decision-making. Dillon v. Gloss, 256 U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994 (1921). As noted by the dissent in Coleman v. Miller, supra, the court did “directly decide upon the reasonableness of the seven years fixed by congress, it ought not now hold itself to lack power to decide” what is reasonable.

Consideration of legislation in the Kentucky Senate is distinguished from congressional ratification of a federal constitutional amendment because the actions of the legislature are restricted to 60 days every two years. Of particular interest in Coleman was the absence of any time limit. Determining what is reasonable and judicially undefinable in a potentially infinite time period is not the same as deciding what is a reasonable time within a limited and defined period of time. The question of the validity of Senate Rule 48 is not a political question outside the bounds of decision by this Court.

In the concept of limited government with the sovereignty of the people of the Commonwealth of Kentucky as supreme, each of the three branches of government is subject to the authority of the people as expressed in the Constitution. The conduct of the public’s business must be in public on the floor of the Kentucky General Assembly in the best tradition of political accountability and representative government.

United States v. Smith, 286 U.S. 6, 52 S.Ct. 475, 76 L.Ed. 954 (1932), while upholding the philosophy that a state legislature is granted broad discretion to establish rules to govern itself, carved out an exception which continues to allow the legislature the right to establish its own rules but imposes a limitation that those rules should not hinder individual rights.

It is the responsibility of every duly elected legislator in Kentucky to represent his constituents. The Senate rule could have the effect of preventing such a duly elected officer of exercising that right by placing the decision in bringing legislation forth in the hands of a majority of the legislature. The rights of the legislator’s constituents are also affected because they have a right to elect a person to the General Assembly to present their views to that body. When a duly elected Senator is prevented from discharging such a responsibility, the rights of his constituent citizens to be represented could be abridged.

LAMBERT, J., joins in this dissent.