Robert Stivers, in His Official Capacity as President of the Kentucky Senate v. Honorable Phillip James Shepherd

RENDERED: DECEMBER 29, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0139-TG
(2021-CA-0479)
ROBERT STIVERS, IN HIS OFFICIAL APPELLANTS
CAPACITY AS PRESIDENT OF THE
KENTUCKY SENATE; DAVID W. OSBORNE, IN
HIS OFFICIAL CAPACITY AS SPEAKER OF
THE KENTUCKY HOUSE OF
REPRESENTATIVES; AND THE LEGISLATIVE
RESEARCH COMMISSION
ON APPEAL FROM THE FRANKLIN CIRCUIT COURT
V. HONORABLE PHILLIP J. SHEPHERD, JUDGE
NO. 21-CI-00089
ANDY BESHEAR, IN HIS OFFICIAL CAPACITY APPELLEES
AS GOVERNOR OF THE COMMONWEALTH
OF KENTUCKY; ERIC FRIEDLANDER, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF THE
CABINET FOR HEALTH AND FAMILY
SERVICES
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
Legislative immunity protects legislators from lawsuits arising from
speech or debate in the General Assembly. At issue in this case is whether the
President of the Kentucky Senate, the Speaker of the Kentucky House, and the
Legislative Research Commission (collectively “the Legislative Defendants”) are
immune from a declaratory judgment action brought by executive branch
officials challenging the constitutionality of certain laws. We conclude that the
Legislative Defendants are immune from suit on this record. Thus, we reverse
the circuit court’s denial of the Legislative Defendants’ motion to dismiss and
remand the case to the circuit court with instruction to dismiss all claims
against the Legislative Defendants with prejudice.
I. FACTS AND PROCEDURAL BACKGROUND
In the 2021 session, the General Assembly passed several laws limiting
the Governor’s power during emergencies. Specifically, HB 11 provided
businesses, school districts, and other specified groups could remain open and
fully operational during the COVID-19 pandemic and during future
emergencies related to illness or disease so long as they comply with all
guidance from the Centers for Disease Control or the Executive Branch,
whichever guidance is least restrictive. SB 12 amended Kentucky Revised
Statutes (KRS) Chapter 39A, the emergency response statutes, by, among other
provisions, limiting declared states of emergency to thirty days absent
extension by the General Assembly; granting the General Assembly the power
to terminate a declaration of emergency at any time; and requiring the Attorney
General’s written approval before the Governor may suspend a statute during
an emergency by executive order. SB 23 limited the Governor’s ability to
respond to emergencies through emergency administrative regulations and
amended KRS 214.020, the statute governing the ability of the Cabinet for
1 2021 Ky. Acts ch. 3, effective February 2, 2021.
2 2021 Ky. Acts ch. 6, effective February 2, 2021.
3 2021 Ky. Acts ch. 7, effective February 2, 2021.
2
Health and Family Services (“CHFS”) to respond to infectious or contagious
disease. Finally, HJR 774 terminated several executive public-health orders,
including the order and regulation requiring that facial coverings be worn in
many public places.
The Governor and Secretary of CHFS5 filed a legal action in the Franklin
Circuit Court seeking a declaration that SB 1, HB 1, SB 2, and HJR 77 were
unconstitutional in February 2021. Simultaneous to the filing of the action, the
Governor moved the circuit court for injunctive relief to prevent enforcement of
the challenged legislation. The suit named Kentucky Senate President Robert
Stivers, Speaker of the Kentucky House David Osborne, the Legislative
Research Commission (“LRC”), and Daniel Cameron, in his official capacity as
Kentucky Attorney General, as defendants.
On March 3, 2021, the circuit court granted a temporary injunction in
favor of the Governor that stayed implementation of HB 1, SB 1, SB 2, and HJR
77 (which was included by amendment to the temporary injunction on April 7,
2021). March 1, amid litigation concerning injunctive relief, the Legislative
Defendants moved the circuit court to dismiss them from the case, asserting
that they were shielded from legal action by legislative immunity. The Franklin
Circuit Court denied the Legislative Defendants’ motions to dismiss on April
12, 2021.
4 2021 Ky. Acts ch. 168, effective March 30, 2021.
5 For simplicity, we refer to the original plaintiffs in this action as “the
Governor.”
3
Following the circuit court’s grant of injunctive relief, the case moved on
two separate trajectories. On one path, the Attorney General sought appellate
relief from the circuit court’s temporary injunction, which was decided by our
decision in Cameron v. Beshear.6 On the other path, the Legislative Defendants
appealed the circuit court’s denial of their motion to dismiss.
The present action addresses only the Legislative Defendants’ appeal
from the circuit court’s order denying their motion to dismiss, which rejected
the Legislative Defendants’ claims that they were immune from suit because of
legislative immunity. We address the parties’ arguments below.
II. STANDARD OF REVIEW
In the present appeal, we review the circuit court’s denial of the
Legislative Defendants’ motion to dismiss. Ordinarily, a trial court’s denial of a
motion to dismiss is not appealable.7 However, this Court has applied the
collateral order doctrine to interlocutory appeals of government officials
claiming immunity and held orders denying such immunity are “appealable
even in the absence of a final judgment.”8 “[T]he purpose of allowing an
immunity issue to be raised by interlocutory appeal is ‘to address substantial
claims of right which would be rendered moot by litigation and thus are not
subject to meaningful review in the ordinary course following a final
6 See Cameron v. Beshear, 628 S.W.3d 61, 78 (Ky. 2021).
7 See Kentucky Rules of Civil Procedure (CR) 54.01.
8 Breathitt Cnty. Bd. Educ. v. Prater, 292 S.W.3d 883, 886–87 (Ky. 2009).
4
judgment.’”9 Because the Legislative Defendants in this case claim that they
are entitled to legislative immunity and, thus, dismissal of the claims against
them, we find their interlocutory appeal on this matter appropriate for our
review. And in performing this review, we consider the application of legislative
immunity de novo, granting no deference to the trial court’s determination.10
III. ANALYSIS
Like the federal constitution, the Kentucky Constitution divides the
powers of the government into three distinct departments or branches: the
legislative, executive, and judicial departments.11 The Kentucky Constitution
also expressly forbids one department from exercising powers belonging to the
others, except in specified instances.12
This case illuminates the tension among the three branches of
government. The Governor argues that the challenged legislation encroaches
on his authority as the executive to “take care that the laws be faithfully
executed.”13 Alternatively, the Legislative Defendants contend that the
Governor’s lawsuit hinders the legislative power by quelling speech and debate
9 Baker v. Fields, 543 S.W.3d 575, 577 (Ky. 2018) (quoting Prater, 292 S.W.3d at
886).
See Rowan Cnty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006); see also Jefferson
10
Cnty. Fiscal Ct. v. Peerce, 132 S.W.3d 824, 825 (Ky. 2004).
11 Ky. Const. § 27.
12 Ky. Const. § 28.
13 Ky. Const. § 81.
5
within the legislative chambers.14 And the judicial branch has already been
involved in round one of the clash between the other two branches when the
trial court enjoined enforcement of the challenged legislation during the 2021
Legislative Session.
As the court of last resort in the Commonwealth, we are in the
unenviable position of resolving the dispute between the branches of
government. We conclude that the Legislative Defendants are constitutionally
entitled to immunity from suit on this record under Section 43 of the Kentucky
Constitution. As a result, we reverse the circuit court’s denial of the Legislative
Defendants’ motion to dismiss.
A. The History of Legislative Immunity
Legislative immunity in the United States traces its origins to a multi-
century struggle between the English Crown and Parliament.15 “In England's
earliest days, ‘all powers were royal,’ including the power to legislate, and it
was only ‘over time, as a result of specific struggles,’ that Parliament assumed
‘various of those powers.’”16
14 Ky. Const. § 29 (“The legislative power shall be vested in a House of
Representatives and a Senate, which, together, shall be styled the ‘General Assembly
of the Commonwealth of Kentucky.’”).
15 Kent v. Ohio House of Representatives Democratic Caucus, 33 F.4th 359, 361
(6th Cir. 2022) (citing United States v. Johnson, 383 U.S. 169, 177–78 (1966)); see also
Baker v. Fletcher, 204 S.W.3d 589, 593–94 (Ky. 2006) (explaining that “the privilege [of
legislative immunity] is a century older than our federal constitution, dating at least to
the time of the English Bill of Rights of 1689”).
16 Kent, 33 F.4th at 361 (quoting Michael W. McConnell, The President Who
Would Not Be King 74 (2020)).
6
In the 1600s, “[e]fforts to constrain the Crown produced the Petition of
Right, which imposed ‘institutional checks’ designed to ‘wrest lawmaking . . .
power from the King.’”17 And the Glorious Revolution of 1688 “confirmed” the
legislative supremacy of Parliament,18 giving rise to the English Bill of Rights in
1689.19 So the English Bill of Rights first codified the privilege of legislative
immunity, declaring that “the freedom of speech, and debates or proceedings in
Parliament, ought not to be impeached or questioned in any court or place out
of Parliament.”20
Before independence, many colonial assemblies adopted the English
concept of legislative immunity.21 After independence, jurisdictions in the
United States followed suit. The federal constitution provides that “for any
Speech or Debate in either House, [legislators] shall not be questioned in any
other place.”22
And, like most states’ constitutions, the Kentucky Constitution includes
a speech or debate clause that is nearly identical to that in the federal
17Id. (quoting Nathan S. Chapman & Michael W. McConnell, Due Process as
Separation of Powers, 121 YALE L.J. 1672, 1688 (2012)).
18Id. (citing Jack N. Rakove, The Origins of Judicial Review: A Plea for New
Contexts, 49 STAN. L. REV. 1031, 1055–56 (1997)).
Id. (citing Alexander J. Cella, The Doctrine of Legislative Privilege of Freedom of
19
Speech and Debate, 2 SUFFOLK UNIV. L. REV. 1, 4 (1968)).
20Id. at 362 (quoting Thomas P. Taswell-Langmead, English Constitutional
History 624, 630 (London 1875)).
21Id. (citing Leon R. Yankwich, The Immunity of Congressional Speech—Its
Origin, Meaning and Scope, 99 U. PA. L. REV. 960, 965 (1951), and Steven F. Huefner,
The Neglected Value of the Legislative Privilege in State Legislatures, 45 WM. & MARY L.
REV. 221, 231 & n.22 (2004)).
22 U.S. Const. art. I, § 6, cl. 1.
7
Constitution. Section 43 of Kentucky’s Constitution states that “for any speech
or debate in either House they shall not be questioned in any other place.”23
B. Exploring the Parameters of Legislative Immunity
We begin our analysis, as we must, with the constitutional text. “[W]ords
used in the Constitution must be given their plain and ordinary meaning.”24
Similarly, “where the language of the Constitution leaves no doubt of the
intended meaning of the section under consideration, courts may not employ
rules of construction.”25 Finally, “in construing one section of a Constitution a
court should not isolate it from other sections, but all the sections bearing on
any particular subject should be brought into consideration and be so
interpreted as to effectuate the whole purpose of the Constitution.”26
The plain text of Section 43 provides an unqualified privilege preventing
legislators from being questioned for any “speech” or “debate” in either
“House.”27 But that begs the question: what legislative activities constitute
“speech” or “debate”? Some activities are undoubtedly covered. For instance, a
legislator speaking in favor of a piece of legislation on the House or Senate floor
certainly fits. But what about conducting legislative investigations, drafting
23 Ky. Const. § 43.
24 Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 89 (Ky. 2018)
(quoting City of Louisville Mun. Hous. Comm’n v. Pub. Hous. Admin., 261 S.W.2d 286,
287 (Ky. 1953); Court of Justice ex rel. Admin. Off. of the Cts. v. Oney, 34 S.W.3d 814,
816 (Ky. App. 2000)).
25Oney, 34 S.W.3d at 816 (quoting Grantz v. Grauman, 302 S.W.2d 364, 366
(Ky. 1957) (citations omitted)).
26 Id. (quoting Grantz, 302 S.W.2d at 366) (alteration omitted).
27 See Ky. Const. § 43.
8
bills, or participating in political-party caucus meetings? And to whom does
“they” refer in Section 43? It is axiomatic that legislators enjoy legislative
immunity. But what about legislative support staff, outside counsel, or
interns?
Under persuasive federal authority, “speech” or “debate” as used in the
United States Constitution encompasses a broad range of legislative activity.
“Insofar as the [federal Speech or Debate] Clause is construed to reach other
matters, they must be an integral part of the deliberative and communicative
processes by which Members participate in committee and House proceedings
with respect to the consideration and passage or rejection of proposed
legislation[.]”28 And federal courts “have extended the privilege to matters
beyond pure speech or debate in either House, but only when necessary to
prevent indirect impairment of such deliberations.”29 So federal courts have
applied legislative immunity to a broad “sphere of legitimate legislative
activity.”30 To that end, federal courts have concluded that the acts of issuing
subpoenas, holding committee hearings, and voting on bills are legislative
functions protected by legislative immunity.31
28 Gravel v. United States, 408 U.S. 606, 625 (1972).
29 Id. (internal quotation and citation omitted).
30 Tenney v. Brandhove, 341 U.S. 367, 376 (1951).
31 See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502–06
(1975) (issuing subpoenas); Doe v. McMillan, 412 U.S. 306, 311–12, 93 S.Ct. 2018, 36
L.Ed.2d 912 (1973) (holding committee hearings); Bogan v. Scott-Harris, 523 U.S. 44,
55 (1998) (voting on bills); see also Tenney v. Brandhove, 341 U.S. 367, 377 (1951);
Kilbourn v. Thompson, 103 U.S. 168, 204 (1880); Kent, 33 F.4th at 365 (holding that
federal legislative immunity barred an action under 42 U.S.C. § 1983 regarding a
9
Our sister states have largely followed suit, applying legislative immunity
to a broad range of legislative activity.32 Recently, in Mesnard v. Campagnolo
ex rel. County of Maricopa, the Arizona Supreme Court noted that “legislative
immunity applies to written reports, offered resolutions, voting, and other
‘things generally done in a session of the House by one of its members in
relation to the business before it.’”33 Centuries earlier, the Supreme Judicial
Court of Massachusetts concluded that the legislative sphere referred to in
Massachusetts’s speech or debate clause was not confined to
delivering an opinion, uttering a speech, or haranguing in debate;
but will extend ... to the giving of a vote, to the making of a written
report, and to every other act resulting from the nature, and in the
execution, of the office; and ... every thing said or done by him, as
a representative, in the exercise of the functions of that office,
without inquiring whether the exercise was regular according to
the rules of the house, or irregular and against their rules.34
Similarly, most states have broadly applied the terms “speech” or “debate” to
cover a broad scope of legislative activity.
But there is scant binding precedent from this Court regarding the
parameters of Kentucky’s speech or debate clause. Our predecessor Court
dispute over a vote to remove a state legislator from the Ohio House Democratic
Caucus).
32 See, e.g., Edwards v. Vesilind, 790 S.E.2d 469, 483–84 (Va. 2016) (holding
that state constitution’s speech or debate clause barred trial court from compelling
disclosure of legislative drafting materials about gerrymandering); State v. Neufeld,
926 P.2d 1325, 1333 (Kan. 1996) (concluding that conversation between defendant-
legislator and second legislator, in which defendant threatened to tell second
legislator’s wife that he had been caught in a compromising position with other women
unless he voted in a particular manner on pending legislation, was protected by state’s
speech or debate clause and was not admissible in a blackmail prosecution).
33 489 P.3d 1189, 1194 (Ariz. 2021) (quoting Kilbourn, 103 U.S. at 204).
34 Coffin v. Coffin, 4 Mass. 1, 27 (1808).
10
recognized that “[l]egislative officers are not liable for their legislative acts.”35
Even so, much of this Court’s discussion of legislative immunity is either non-
binding dictum or fails to engage in reasoned analysis regarding the scope of
legislative immunity under Section 43.
For instance, in Baker v. Fletcher, the majority opined that “absolute
legislative immunity, even with its negative characteristics, is essential if
separation of powers is to be respected and the Commonwealth’s legislators are
to be encouraged to speak and act candidly on behalf of citizens.”36 But
Baker’s discussion of legislative immunity constituted dictum and is, while
persuasive, not binding on this Court.
Based on the principle of stare decisis, only holdings of this Court in
published opinions constitute binding precedent.37 A “holding” is “[a] court's
determination of a matter of law pivotal to its decision.”38 Alternatively,
“dictum is anything ‘not necessary to the determination of an issue on
appeal.’”39 But “the line between [a] holding and dictum is not always clear.”40
35 Commonwealth v. Kenneday, 82 S.W. 237, 238 (Ky. 1904) (internal quotation
and citation omitted).
36 Baker, 204 S.W.3d at 594.
37 See Matheney v. Commonwealth, 191 S.W.3d 599, 614–26 (Ky. 2006) (Cooper,
J., dissenting) (exploring the history and importance of the doctrine of stare decisis at
length).
38 Freed v. Thomas, 976 F.3d 729, 738 (6th Cir. 2020) (quoting United States v.
Hardin, 539 F.3d 404, 438 (6th Cir. 2008) (Batchelder, J., concurring in part and
dissenting in part) (citing BLACK'S LAW DICTIONARY (8th ed. 2004)).
39 Id. (quoting United States v. Swanson, 341 F.3d 524, 530 (6th Cir. 2003)).
40 Id. (quoting Metro. Hosp. v. United States Dep’t of Health & Hum. Servs., 712
F.3d 248, 274 (6th Cir. 2013) (McKeague, J., dissenting) (emphasis omitted)).
11
“Holding and dictum are generally thought of as mutually exclusive categories.
But it is not always immediately apparent whether a pronouncement of law is
holding or dictum. One cannot tell by reading the statement in isolation,
without reference to the overall discussion.”41 Ultimately, “[w]hat separates [a]
holding from dictum is better seen as a zone, within which no confident
determination can be made whether the proposition should be considered
holding or dictum.”42
The discussion of legislative immunity in Baker is most appropriately
categorized as dictum. In Baker, state employees sought declaratory and
injunctive relief against then-Governor Fletcher, arguing that the Governor
lacked authority to suspend a statute providing all state employees a salary
increase. Neither legislators nor legislative staff were named as defendants in
Baker. The majority discussed legislative immunity as it opined that the
legislature would have been a more appropriate defendant because the
legislature caused the damages alleged by the plaintiffs. Even so, as the
dissent noted, Baker’s discussion of legislative immunity is dictum43 because it
was “not necessary to the determination of an issue on appeal.”44
41Id. (quoting Pierre N. Leval, Judging Under the Constitution: Dicta about Dicta,
81 N.Y.U. L. REV. 1249, 1257 (2006)).
42 Id. (quoting Leval, 81 N.Y.U. L. REV. at 1258).
43See Baker, 204 S.W.3d at 600 (Cooper, J., dissenting) (explaining that there
was no need to discuss the immunity of legislators).
44 See Freed, 976 F.3d at 738.
12
The discussion of legislative immunity in Philpot v. Patton45 is also
dictum. In Philpot, two state senators sued the remaining state senators to
challenge a Senate rule. The Court held that the claims were moot because
the session had ended.46 The Court then proceeded to discuss legislative
immunity, stating,
[T]he General Assembly is not immune from suit in a declaratory
judgment action to decide whether the General Assembly has
failed to carry out a constitutional mandate and that members of
the General Assembly are not immune from declaratory relief of
this nature simply because they are acting in their official
capacity.47
But the Court had already concluded that the plaintiffs’ claims were moot
before discussing legislative immunity. So, as in Baker, the discussion of
legislative immunity in Philpot was not necessary to the determination of an
issue on appeal and is only persuasive authority for this Court.
In Rose v. Council for Better Education Inc., the Court considered a claim
that the legislature failed to provide an efficient system of common schools, in
violation of Section 183 of Kentucky’s Constitution.48 In Rose, we concluded
that “both the President Pro Tempore of the Senate and the Speaker of the
House of Representatives, named in their respective capacities is sufficient to
acquire jurisdiction over the General Assembly in this action.”49 Of crucial
45 837 S.W.2d 491 (Ky. 1992).
46 See id. at 492–93.
47 Id. at 493–94.
48 790 S.W.2d 186 (Ky. 1989).
49 Id. at 205.
13
importance for today’s case, however, Rose did not consider whether the
legislative defendants in that case were entitled to legislative immunity under
Section 43.
Kraus v. Kentucky State Senate50 may provide some answers. In Kraus, a
rejected workers’ compensation administrative law judge (“ALJ”) nominee
brought tort claims and federal and state civil rights claims against the State
Senate and the Worker’s Compensation Board, alleging the ALJ-nomination
process violated separation of powers.51 The Court held that legislative
immunity under the federal and state constitutions protected members of the
State Senate from suit for damages allegedly arising from voting on executive
appointments.52 The Court summarily concluded, however, that members of
the Workers’ Compensation Board were not immune from suit.53
Jones v. Board of Trustees of Kentucky Retirement Systems54 provides
broad statements regarding immunity. In Jones, we held that the Governor
and General Assembly were not immune from declaratory actions to decide
whether they acted according to their constitutional mandate.55 But Jones
does little to help resolve the present case. Jones’s discussion of legislative
immunity is premised on Philpott and Rose, neither of which rendered any
50 872 S.W.2d 433 (Ky. 1993).
51 Id. at 434–35.
52 Id. at 440.
53 Id.
54 910 S.W.2d 710 (Ky. 1995).
55 Id. at 713.
14
binding holdings regarding legislative immunity. And Jones is factually
distinguished from the present case because it did not involve a suit between
the executive and legislative branches. As a result, Jones is of little value here.
Finally, Yanero v. Davis,56 which is cited by the Legislative Defendants, is
not a legislative-immunity case. Yanero discussed related immunity doctrines,
such as sovereign immunity, governmental immunity, and official immunity.
But Yanero involved whether a county board of education and statewide
athletic association were entitled to governmental immunity. The case
mentions legislative immunity as one example of the doctrine of sovereign
immunity, but Yanero engaged in no reasoned analysis about the proper
application of legislative immunity. As such, Yanero is of little help in resolving
the case at bar.
C. Legislative Immunity Applies on this Record
Kentucky’s speech or debate clause serves as a check against
encroachment of the executive and judicial departments into the domain of the
legislative branch. The legislative branch is undeniably empowered to make
the laws of the Commonwealth. The legislature makes law by enacting bills.
And the legislative branch votes on bills through speech and debate. So, “the
purpose of legislative privilege is to protect the legislature from intrusion by the
56 65 S.W.3d 510 (Ky. 2001).
15
other branches of government and to disentangle legislators from the burden of
litigation and its detrimental effect on the legislative processes.”57
Here, the Governor sued the President of the Kentucky Senate, the
Speaker of the Kentucky House, and the LRC for their involvement in passing
laws that the Governor believes encroach upon the powers of the executive
branch. Participation in supporting and passing bills falls fundamentally
within the sphere of legitimate legislative activities. As a result, the Legislative
Defendants are entitled to immunity from suit arising from their roles in
passing the legislation at issue in this lawsuit.
Nor is there any question that the Legislative Research Commission
enjoys the protection of legislative immunity under these circumstances. The
LRC is an independent agency that operates as the administrative and research
arm of the General Assembly. It is a sixteen-member statutory committee
made up of the majority and minority party leadership of the Kentucky Senate
and House of Representatives. Even when the term LRC is used more broadly
to encompass legislative support staff, the privilege applies to legislative aides
and commission-staff members who are engaged in legitimate legislative
activity.58 “For the purpose of construing the privilege, legislators and
legislative aides [who are engaged in legislative activity] are to be ‘treated as
one.’”59
57 Vesilind, 790 S.E.2d at 478.
58 Gravel, 408 U.S. at 616.
59 Holmes v. Farmer, 475 A.2d 976, 984 (R.I. 1984) (quoting Gravel, 408 U.S. at
616).
16
The Governor contends that this case is not about legislative speech or
debate but instead about the constitutional validity of the challenged
legislation. But in a legislative-immunity analysis, we focus on whether the
challenged conduct of the representatives constitutes legitimate legislative
activity. The Legislative Defendants were sued here because they supported
and voted on the challenged legislation. Supporting and voting on legislation
indisputably falls within the concepts of speech and debate in Section 43 of
Kentucky’s Constitution.
Moreover, legislative immunity is not rendered inapplicable simply
because this case involves a tension between the powers of two branches of
government. The Governor argues for an exception to legislative immunity
when there is an allegation that the legislature has usurped the power of
another branch of government. But far from narrow, the Governor’s proposed
exception would swallow the rule of legislative privilege. Such an exception to
legislative immunity would allow litigants to avoid invocation of the privilege by
simply pleading that a legislative enactment had encroached upon the powers
of another branch of government. Such a broad exception risks quelling
legislative speech and debate by allowing the other branches of government to
subject legislators to the burden of litigation.
In fact, this case is an example of the need for legislative immunity. The
Governor sued members of the legislature while the legislature was in session.
And the Franklin Circuit Court enjoined enforcement of the challenged
legislation during the same legislative session. Then, when vetoing related
17
legislation, the Governor stated that legislation related to the COVID-19
pandemic “directly violates a temporary injunction entered by the Franklin
Circuit Court against the General Assembly itself, which could subject the body
to a contempt of court citation.”60 The message was clear: members of the
legislature may have been held in contempt of court if they overrode the
Governor’s veto of HB 192.61 This type of inter-branch power struggle is
precisely what legislative immunity seeks to prevent.
The fact that this action involves a disagreement between political
branches over their respective powers encourages granting legislative
immunity, not making a broad exception to it. Again, “the purpose of
legislative privilege is to protect the legislature from intrusion by the other
branches of government[.]”62 As such, legislative immunity is most
appropriately applied in situations where a coordinate branch of government
seeks to use a court action to modify or influence legislative conduct that
qualifies as legitimate legislative activity.
On balance, legislative immunity also protects the legitimacy of the other
branches of government in our system of separation of powers. For instance,
legislative immunity prevents the judicial branch from being unnecessarily
ensnared in political disputes between the other branches. This case is an
60 Andy Beshear, Veto Messages from the Governor of the Commonwealth of
Kentucky Regarding House Bill 192 of the 2021 Regular Session 8 (Mar. 26, 2021),
available at https://apps.legislature.ky.gov/record/21rs/hb192/veto.pdf.
61 2021 Ky. Acts 169, effective March 29, 2021.
62 Vesilind, 790 S.E.2d at 478.
18
example. The application of legislative immunity in this case serves not only as
a check against executive and judicial branch intrusion into legislative power
but also works to balance the powers of all three branches of government by
limiting political disputes among coordinate branches of government.
Even so, legislative immunity is not unlimited. “Broad though the ambit
of protection for the ‘legislative sphere’ has become, it does not cover everything
lawmakers do.”63 Legislative immunity “does not apply to ‘activities that are
casually or incidentally related to legislative affairs but not part of the
legislative process itself.’”64 For instance, even under the broad scope of the
federal speech or debate clause, legislative immunity does not protect the
political activities of legislators,65 nor does it protect legislators engaged in
criminal activity, even if the criminal activity is committed in furtherance of
legislative activity.”66
But we need not determine the outer limits of legislative immunity under
Section 43 to resolve the present case. Here, the Governor sued legislators
because of their roles in passing legislation that was allegedly unconstitutional.
Suffice it to say that legislators’ involvement in passing legislation—
constitutional or not—unquestionably falls within the ambit of legitimate
63 Kent, 33 F.4th at 364–65 (quoting Gravel, 408 U.S. at 624–25).
64 Olson v. Leach, 943 N.W.2d 648, 654–55 (Minn. 2020) (quoting United States
v. Brewster, 408 U.S. 501, 528 (1972)); see also Holmes v. Farmer, 475 A.2d 976, 983
(R.I. 1984) (“The scope of the privilege does not extend to actions by legislators outside
of the legislative process.”).
65 Brewster, 408 U.S. at 512.
66 Gravel, 408 U.S. at 621 n.12, 622.
19
legislative activity, if not squarely within the textual definitions of “speech” or
“debate.”
Of course, legislative immunity must be understood within the broader
context of separation of powers. When reading the Kentucky Constitution, we
do not isolate one section from other sections.67 Instead, “all the sections
bearing on any particular subject should be brought into consideration and be
so interpreted as to effectuate the whole purpose of the Constitution.”68 So
while legislative immunity is integral to separation of powers, it must be
balanced with the powers delineated to the other branches.
To that end, “[l]egislative immunity and constitutional judicial review of
legislative acts must coexist.”69 “The purpose of the protection afforded
legislators is not to forestall judicial review of legislative action but to ensure
that legislators are not distracted from or hindered in the performance of their
legislative tasks by being called into court to defend their actions.”70 And this
Court has previously acknowledged, albeit in dictum, that “[i]t is not
inconceivable that a circumstance could arise in which a party wishing to
obtain judicial review of some aspect of legislative conduct would be unable to
identify a[ ] proper non-legislator defendant.”71 So legislative immunity may be
67 Bevin, 563 S.W.3d at 84.
68 Id. (internal quotation omitted).
69 Baker, 204 S.W.3d at 595.
70 Powell, 395 U.S. at 505.
71 Baker, 204 S.W.3d at 596 n.32.
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required take a back seat to allow for judicial review where none would be
possible if the privilege were applied.
But we need not resolve any potential conflicts between judicial review
and legislative immunity in this case. This is not a case where judicial review
of the challenged legislation is only available by suing a legislator-defendant.
The Legislative Defendants contend that the Governor could promulgate
a rule that lasts longer than thirty days, contrary to the challenged legislation,
and then the Governor could either: (1) bring an affirmative enforcement action
against an entity that does not comply with the regulation or (2) he could wait
to be sued and defend his regulation in litigation against an entity that chooses
not to comply with the regulation. The Governor argues that the Legislative
Defendants’ proposed avenue for judicial review requires him to break the law
to test the challenged legislation in court. And the Governor correctly notes
that he took an oath to support the Constitution of the United States and the
Constitution of this Commonwealth.
But the Governor’s argument on this point is unpersuasive. This legal
action is premised on the Governor’s belief that the challenged legislation
violates the Kentucky Constitution. To put a finer point on it, as the Governor
sees it, compliance with the challenged legislation would be unconstitutional
and, therefore, a violation of his oath to support the Constitution of this
Commonwealth. That is not to say that the executive branch is free to
disregard or refuse to enforce statutes that it dislikes by summarily concluding
that they are unconstitutional. It is simply to say that where there is a
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reasonable legal argument that a statute violates the Kentucky Constitution,
the executive branch must carefully choose how to ensure that the laws are
faithfully executed. Here, taking the Governor at his word, the Governor has
concluded that the challenged legislation violates the principle of separation of
powers as outlined in Kentucky’s Constitution. As such, in the Governor’s
view, promulgating a regulation that violates the challenged legislation would
not force the Governor to break the law to tee up a legal constitutional
challenge involving non-legislative defendants.
Of course, hard cases will exist on the margins. And both the Legislative
Defendants and Amici acknowledge that cases may arise where a party seeking
judicial review of legislative action may be unable to identify a non-legislative
defendant. For now, we expressly reserve ruling on whether legislative
immunity would preclude suit against legislators where no conceivable non-
legislative defendants exist and no other remedy is available. This Court does
not render advisory opinions,72 and this is not a case in which judicial review of
the challenged legislation is impossible except by suing legislative defendants.
D. We Do Not Consider Alternative Arguments
Having concluded that the Legislative Defendants are entitled to
legislative immunity under Section 43 of the Kentucky Constitution, we need
not consider the Legislative Defendants’ statutory and prudential arguments.
72 See Nordike v. Nordike, 231 S.W.3d 733, 739 (Ky. 2007) (“It is a fundamental
tenet of Kentucky jurisprudence that courts cannot decide matters that have not yet
ripened into concrete disputes. Courts are not permitted to render advisory opinions.”)
(citations omitted).
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On this record, the Governor is precluded under Kentucky’s speech or debate
clause from suing the Legislative Defendants for their involvement in passing
allegedly unconstitutional legislation. Any further discussion would constitute
non-binding dictum and would result in this Court issuing an impermissible
advisory opinion.
IV. CONCLUSION
The health of our state government depends on a system of three
separate but equal branches of government. Like the federal constitution, the
Kentucky Constitution “diffuses power to better secure liberty” but also
“contemplates that practice will integrate the dispersed powers into a workable
government.”73 The constitutional privilege of legislative immunity exists to
prevent encroachment of the executive and judicial branches into the legislative
sphere and protects robust and open debate within the legislative chambers.
Here, the Governor sued the Legislative Defendants for their roles in supporting
and passing laws he considers unconstitutional. The Legislative Defendants’
activity falls squarely within the ambit of legitimate legislative activity. As a
result, the Legislative Defendants are entitled to immunity from suit on this
record. The judgment of the Franklin Circuit Court is reversed and the action
is remanded to the Franklin Circuit Court with instruction to dismiss all claims
against President Stivers, Speaker Osborne, and the LRC with prejudice.
All sitting. All concur.
73 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson,
J., concurring in the judgment and opinion of the Court).
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COUNSEL FOR APPELLANTS:
David Earl Fleenor
Office of the Senate President
David Eric Lycan
Office of the Speaker of the House
Gregory Allen. Woosley
Legislative Research Commission
Paul Emmanuel Salamanca
COUNSEL FOR APPELLEES:
Steven Travis Mayo
Taylor Allen Payne
Marc Griffin Farris
Laura Crittenden Tipton
Office of the Governor
LeeAnne Edmonds Applegate
Wesley Warden Duke
Office of Secretary of the Cabinet
for Health and Family Services
COUNSEL FOR AMICUS CURIAE,
COMMONWEATH OF KENTUCKY
EX. REL. ATTORNEY GENERAL
DANIEL CAMERON:
Matthew Franklin Kuhn
Office of Solicitor General
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