BOARD OF TRUSTEES OF THE JUDICIAL FORM RETIREMENT SYSTEM, Appellant, v. ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY, Appellee. and Board Of Trustees Of The Kentucky Retirement System, Appellant, v. Attorney General Of The Commonwealth Of Kentucky, Appellee.
No. 2002-SC-0699-DG, 2002-SC-0700-DG.
Supreme Court of Kentucky.
Oct. 23, 2003.
Rehearing Denied May 20, 2004.
132 S.W.3d 770
COOPER, Justice.
William P. Hanes, J. Eric Wampler, James Dodrill, Kentucky Retirement Systems, Perimeter Park West, Frankfort, Counsel for Appellant Board of Trustees of
A.B. Chandler, III, Atty. Gen., State Capitol, D. Brent Irvin, Asst. Atty. Gen., Civil & Environmental Law Division, Office of the Attorney General, Jennifer L. Carrico, Asst. Atty. Gen., Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee Attorney General of the Commonwealth of Kentucky (2002-SC-0699-DG and 2002-SC-0700-DG).
COOPER, Justice.
This appeal involves the validity of House Bill (HB) 389(4) which amended a provision of the Judicial Retirement Act,
As amended,
(1) The benefits provided by
KRS 21.350 to21.510 to be paid shall be funded through contract with a reputable life insurance company authorized to do business in this state, or through investment and reinvestment of funds in securities which, at the time of making the investment, are by law permitted for the investment of funds by fiduciaries in this state, or through a combination of such methods. To the extent that funding is provided through insurance contract, no contributions, payments or premiums shall be subject to any tax on insurance premiums or annuity considerations. The investment committee for the judicial retirement fund shall be trustee of any and all funds contributed or appropriated to the retirement system, and shall have sole authority to make insurance contracts or investments.(2) The board members or any investment adviser shall discharge their duties with respect to the funds of the retirement system solely in the interest of the members and beneficiaries and:
(a) For the exclusive purposes of providing benefits to members and their beneficiaries and defraying reasonable expenses of administering the plan;
(b) With the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; and
(c) In accordance with the laws, regulations and other instruments governing funds.
(3) Any accrual of benefits provided under this or any other applicable statute shall be no less than the benefit adjustment provided for in
KRS 21.405(4) from the date of the last establishment of that benefit.
The “benefit adjustment provided for in
The Board of Trustees of the Judicial Form Retirement System (JFRS) administers both the Judicial Retirement Plan described in
For administrative purposes only, as hereinafter provided, the Legislators’ Retirement Plan and the Judicial Retirement Plan shall be coordinated under the name, Judicial Form Retirement System, but each of the plans shall maintain its separate identity.
(Emphasis added.)
However, “any other applicable statute” providing an “accrual of benefits” could not refer to a statute pertaining to actual judicial or legislative retirement benefits because
The significance of
This theory that the amendment of
I. LEGISLATIVE HISTORY OF KRS 21.450(3) .
Senate Bill 349.
On March 13, 2000, Senate Bill (SB) 349 was introduced and read on the Senate floor. 2000 Sen. J. 1544. As written, Section 1(13) of SB 349 would have read as follows:
[F]or members of the General Assembly who retire under Section 12 of this Act, or who die in office, “final compensation” shall be forty-five thousand dollars ($45,000). The assumed salary for legislators in this subsection shall be adjusted annually ... to reflect changes in the current purchasing power of the dollar. The maximum possible compensation for legislators under this subsection shall be based precisely upon the consumer price index formula approved in Matthews v. Allen, Ky., 360 S.W.2d [135], 139 (1962).
Thus, its sponsor clearly intended for SB 349 to increase the “assumed salary” of legislators from $27,500.00 to $45,000.00 and to provide for CPI increases of the assumed salary on an annual basis thereafter. An actuarial analysis dated March 10, 2000, presumably obtained in compliance with
House Bill 389.
Meanwhile, on March 13, 2000, the same day the original version of SB 349 was
On March 29, 2000, HB 389 (committee substitute) passed the Senate without debate as part of the consent calendar. 2000 Sen. J. 3366. Later that same day, the House concurred with the Senate‘s committee substitute for HB 389 with only this comment by the House sponsor:
Section 4 was added ... and I have a report here ... from the retirement system ... that says ... “I am unable to determine the fiscal impact, if any, of Section 4.”
Videotape: House Floor Debate (3/29/2000); 2000 House J. 5229.
II. PROCEDURAL BACKGROUND.
Unable to decipher what effect, if any, HB 389(4) might have on the JFRS, the executive director of the JFRS requested a formal opinion from the Attorney General, pursuant to
- Does the amendment to
KRS 21.450 require that the assumed salary in the Legislators‘] Retirement Plan be annually increased by the CPI? - If the amendment to
KRS 21.450 provides that the assumed salary under the Legislators‘] Retirement Plan is to be аnnually increased by the CPI, is the increase retroactive? - If the amendment to
KRS 21.450 provides that the assumed salary under the Legislators‘] Retirement Plan is to be annually increased by the CPI, at what date is the increase to be first applied? - Does the amendment to
KRS 21.450 provide that in a year in which a judicial salary increase falls below the CPI, will the salary be adjusted by the CPI? If the amendment requires that a judicial salary be adjusted by the CPI, is the increase retroactive? If the amendment requires that a judicial salary be adjusted by the CPI, at what date is the increase to be first applied? - Is the legislator or judge required to make personal contributions on the additional assumed salary or salary on which the benefits ultimately will be calculated?
- To whom does the amendment apply—members, retirees, or both?
OAG 00-5, at 2 (quoting the questions posed by the executive director of the JFRS).
In the course of drafting his response, the Attorney General requested that Senator Robinson, chair of the Senate State and Local Government Committee, provide any research or documentation uti-
Since it was our intent to not make the provision of the amendment so visible; and based on staff‘s proposal, we decided to place the substance of our proposal on one of the judicial statutes that are identified with
KRS 6.525 . Therefore, we chose to peg our proposal toKRS 21.450 .
Id. On June 13, 2000, the Attorney General rendered his opinion that HB 389(4) was void because it (1) was enacted without obtaining the actuarial analysis required by
The Board of Trustees of the JFRS filed this action in the Franklin Circuit Court for a declaratory judgment pursuant to
A bill which would increase the benefits ... of any public retirement system ... shall not be reported from a legislative committee of either house of the General Assembly ... unless the bill is accompanied by an actuarial analysis ... showing] the economic effect of the bill on the public retirement system, including a projection of the annual cost to the system of implementing the legislation for at least ten (10) years ... prepared by an actuary who is a fellow of the Sociеty of Actuaries, a member of the American Academy of Actuaries, or an enrolled actuary under the Employees’ Retirement Income Security Act of 1974.
The Court of Appeals reversed the Franklin Circuit Court without addressing the vagueness and nondelegation issues, deeming
III. ACTUARIAL ANALYSIS.
The Court of Appeals declared HB 389(4) invalid because the General As-
It is entirely the prerogative of the legislature, however, to make, interpret, and enforce its own procedural rules, and the judiciary cannot compel the legislature to act in accordance with its own procedural rules so long as constitutional questions are not implicated. Furthermore, the legislature has complete control and discretion whether it shall observe, enforce, waive, suspend, or disregard its own rules of procedure, and violations of such rules are not grounds for the voiding of legislation. Des Moines Register & Tribune Co. v. Dwyer, 542 N.W.2d 491, 496 (Iowa 1996) (citations omitted). See also Abood v. League of Women Voters, 743 P.2d 333, 336-37 (Alaska 1987) (review of the legislature‘s adherence to its own procеdural rules constitutes a nonjusticiable political question solely within the legislature‘s province, and non-adherence to rules does not implicate constitutional rights); State v. Gray, 221 La. 868, 60 So.2d 466, 468 (1952) (legislature‘s failure to observe procedural rules does not invalidate legislation). The result is the same even when the procedural rule is, as here, codified in a statute. Moffitt v. Willis, 459 So.2d 1018, 1021-22 (Fla. 1984).
In State ex. rel. La Follette v. Stitt, 114 Wis.2d 358, 338 N.W.2d 684 (1983), the Wisconsin legislature enacted debt legislation in contravention of
Courts are reluctant to inquire into whether the legislature has complied with legislatively prescribed formalities in enacting a statute. This reluctance stems from separation of power and comity concepts, plus the need for finality and certainty regarding the status of a statute. Baker v. Carr, 369 U.S. 186, 215, 82 S.Ct. 691, 709, 7 L.Ed.2d 663 (1962). Although since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) courts have had the authority to review acts of the legislature for any conflict with the constitution, courts generally consider that the legislature‘s adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion,
not subject to judicial review unless the legislative procedure is mandated by the constitution. 73 Am.Jur.2d Statutes, sec. 49, p. 296. If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid. The rationale is that the failure to follow such procedural rules amounts to an implied ad hoc repeal of such rules.
Id. at 687. Furthermore, since the asserted interpretation of HB 389(4) so closely adheres to the language of failed SB 349, the actuarial analysis obtained with respect to SB 349 supports the Franklin Circuit Court‘s finding of substantial compliance with
IV. UNINTELLIGIBILITY.
The void-for-vagueness doctrine is most often applied in the context of the First Amendment, the criminal law, and punitive civil laws. See, e.g. Martin v. Commonwealth, Ky., 96 S.W.3d 38, 59-60 (2003) (First Amendment); Jones v. Commonwealth, Ky., 830 S.W.2d 877, 880 (1992) (criminal law); Vill. of Hoffman Estates v. Flipside, 455 U.S. 489, 499-500, 102 S.Ct. 1186, 1193-94, 71 L.Ed.2d 362 (1982) (civil penalties). Howеver, while statutes affecting those areas should receive the most rigorous review and are most commonly held void for vagueness, non-punitive civil, regulatory, or spending statutes are also invalid if they are so unintelligible as to be incapable of judicial interpretation. In that circumstance, the statute often is declared void for “unintelligibility” or “uncertainty” as opposed to “vagueness.”
The most oft-cited expression of this doctrine in Kentucky is Folks v. Barren County, 313 Ky. 515, 232 S.W.2d 1010 (1950), in which our predecessor court was asked to interpret a statute allowing boards of education to finance new school buildings through direct appeals to voters. The Court noted the following proposition of law:
It is not for us to say the Legislature does not have the right to be indirect where it could be direct, or to be obscure and confusing where it could be clear and simple. But where the lawmaking body, in framing the law, has not expressed its intent intelligibly, or in language that the people upon whom it is designed to operate or whom it affects can understand, or from which the courts can deduce the legislative will, the statute will be declared to be inoperative and void.
Id. at 1013 (emphasis added). The United States Court of Appeals for the Sixth Circuit, citing Folks, noted that “Kentucky‘s highest court has clearly and unwaiveringly [sic]” held that unintelligible statutes will be declared invalid. Bostic v. E. Constr. Co., 497 F.2d 712, 715 (6th Cir. 1974). The Sixth Circuit held in Bostic, a tort case for damages caused by fire, that a safety regulation promulgated pursuant to
Folks recognized but did not create this rule. Our predecessor court had previously applied the rule to hold “void for uncertainty” a statute that allowed the local board of trustees of a pension plan to award a pension to a firefighter with twenty years of experience “if his [retirement] application is granted.” Schmid v. Bd. of Trustees, 146 Ky. 335, 142 S.W. 688, 689 (1912). Even earlier, the Court voided a statute pertaining to the terms of court for the twenty-fourth judicial district, noting
Many other examples of our adherence to the Folks rule exist. Our predecessor court invalidated former
All parties have assumed this to be а valid law unless it violates some specific provision of the Kentucky Constitution, but there is another ground upon which we may declare this enactment ineffective as a law. That is the lack of intelligibility. In other words, if the language of the law is so ambiguous as to completely obscure the legislative intent and to defy rational meaning, it is simply inoperative as a law.
Id. at 364. Citing Kerth and Folks, the Court found that the relevant words in the statute were “meaningless;” thus, it deemed the statute “an abortive effort” and “a nullity.” Id. at 366.
Kentucky is not alone in requiring that statutes be facially intelligible. In Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill.2d 389, 113 Ill.Dec. 915, 515 N.E.2d 1222 (1987), the Supreme Court of Illinois invalidated a statute permitting teachers to inspect some, but not all, of the documents in their personnel files because that statute was so vague that it was impossible for school districts to discern which documents were subject to disclosure. Id. at 1228. It noted the rule that:
While it is the duty of the courts to ascertain the meaning of and to give effect to every valid act of the legislature, yet they cannot supply omissions or remedy defects in matters committed to the legislature. A legislative act which is so vague, indefinite and uncertain that thе courts are unable, by accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended, or which is so incomplete or conflicting and inconsistent in its provisions that it cannot be executed, will be declared to be inoperative and void.
Id. at 1228 (emphasis added, internal quotations and citations omitted). (Thus, as
Section 4 of HB 389 is worse than all of the invalidated laws described supra because it is intentionally incomprehensible as stated by Senator Robinson in his May 18, 2000, letter to the Attorney General:
Since it was our intent to not make the provision of the amendment so visible
Letter from Sen. Robinson to Carrico, supra, at 1.
The Framers of the present Kentucky Constitution were so concerned about surreptitious legislation that they enacted Section 51. See Martinez v. Commonwealth, Ky., 72 S.W.3d 581, 584 (2002) (the purpose of Section 51 “is to prevent surreptitious legislation, and to prevent surprise and fraud upon the members of the General Assembly and other interested parties“). While Section 51 is not at issue here, it provides structural support for the fundamental common-law proscription against intentionally obscure statutes. One commentator has addressed the perniciousness of this kind of legislative strategy in the context of tax legislation:
Certain [tax] provisions meant to favor a powerful special interest are intentionally written in obscure styles. The obscurity not only limits the benefit of such provisions to the narrow interest group, it also makes it less likely that the public at large will discover, understand and criticize the favor.
Edward J. McCaffery, The Holy Grail of Tax Simplification, 1990 Wis. L.Rev. 1267, 1284-85 (1990). That concern is magnified when the special interest group favored by the disguised benefit is the legislature, itself. Our Constitution is clearly wary of self-serving legislation, providing in Section 57 that “[a] member who has a personal or private interest in any measure or bill ... shall disclose the fact ...,” and in Section 235 that “[t]he salaries of public officers shall not be changed during the terms for which they were elected.” Again, the Attorney General does not allege a violation of either Section 57 or Section 235, but it would contradict the constitutional rationale behind those Sections to validate a deliberately surreptitious attempt by the General Assembly to increase its own retirement benefits.
Appellants correctly assert that only constitutional infirmities can void legislation. Ky. Const. § 27 (providing for separation of powers among the three branches of government); Ky. Const. § 28 (forbidding any department from “exer-cis[ing] any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted“); Ky. Const. § 29 (vesting legislative power in the General Assembly). In the context of laws that constrain speech,
The same is true when the judiсial branch is asked to interpret an unintelligible statute. Sullivan v. Brawner, supra, suggested that separation of powers is the reason the Court must invalidate unintelligible statutes. When faced with unintelligibility, “the court can do nothing but conjecture, and in doing so it would allocate to itself legislative functions, but which is everywhere conceded it has no right to do.” 36 S.W.2d at 368. Stated differently, it is impossible to interpret language that is unintelligible. Thus, when faced with such language, the court has only two options. It may legislate by saying, “this unintelligible language means X,” or, it may declare the law invalid and give the General Assembly an opportunity to write an intelligible statute. In fact, if the General Assembly did intend for HB 389(4) to amend
Section 29 of the Kentucky Constitution provides another constitutional foundation for the Folks rule:
The legislative power shall be vested in the “General Assembly of the Commonwealth of Kentucky.”
Obviously, an attempted exercise of legislative power is simply ineffective if the legislative product is unintelligible. In that event, no legislative power has been exercised. See Murphy v. Cranfill, supra, at 366 (unintelligible statute was an “abortive effort” and a “nullity“).
V. NONDELEGATION DOCTRINE.
The United States Supreme Court has expressed concern with respect to improper delegation of legislative authority. In short, the nondelegation doctrine recognizes that the Constitution vests the legislative power exclusively in Congress, U.S. Const. art. I, § 1, and under the doctrine of separation of powers, Congress must exercise that power rather than delegate it to the executive or judicial branches. Nevertheless, given the realities of modern rule-making, Congress has neither the time nor the expertise to do it all; it must have help. Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 655, 102 L.Ed.2d 714 (1989) (“[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.“).
The compromise developed by the Court is that Congress must “lay down by
The intelligible-principle rule seeks to enforce the understanding that Congress may not delegate the power to make laws and so may delegate no more than the authority to make policies and rules that implement its statutes. Loving v. United States, 517 U.S. 748, 771, 116 S.Ct. 1737, 1750, 135 L.Ed.2d 36 (1996). Nevertheless, the Court has been notoriously lax in reviewing delegations unaccompanied by intelligible principles. Indeed, the Court conceded in a recent opinion:
In the history of the Court we have found the requisite “intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.” See Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 474, 121 S.Ct. 903, 913, 149 L.Ed.2d 1 (2001).
Kentucky holds to a higher standard. Our predecessor court noted that Kentucky is more “restrictive of powers granted” than the federal Constitution because the federal Constitution does not have a “provision expressly forbidding the Congress to delegate its legislative powers,” as do Sections 27, 28, 29, and 60 of the Kentucky Constitution. Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387, 390-91 (1939). Thus, federal decisions do not have “the usual persuasive force” when it comes to delegation issues. Id. at 391. Indeed, in the area of nondelegation, Kentucky may be unsurpassed by any state in the Union.
Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution .... Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 457 (1922). See also Diemer v. Commonwealth, Ky., 786 S.W.2d 861, 864 (1990) (“Kentucky is a strict adherent to the separation of powers doctrine.“).
Like the federal “intelligible-principle rule” articulated in J.W. Hampton, supra, Kentucky law mandates that “the legislature must lay down policies and establish standards.” Bloemer, supra, at 391. However, our rule has not been as toothless as the “intelligible-principle rule.” In Miller v. Covington Development Authority, supra, we declared unconstitutional the former Local Development Authority Act,
In Fawbush v. Bond, Ky., 613 S.W.2d 414 (1981), we invalidated former
In Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984), we invalidated a statute delegating legislative power to the Legislative Research Commission during periods of legislative adjournment because, inter alia, the delegation lacked “standards controlling the exercise of administrative discretion.” Id. at 915. Most recently, we held that
Three cases applying the nondelegation doctrine illustrate the possible confluence of that doctrine with the Folks unintelligibility rule discussed supra. That cоnfluence was explicitly recognized in Kerth v. Hopkins County Board of Education, supra, wherein the Court wrote that it did not need to reach the nondelegation question because the statute was so obscure that it was invalid under the Folks rule alone. 346 S.W.2d at 742. However, Kerth observed in dicta that the statute‘s vagueness also necessarily meant that it would fail to pass muster under the nondelegation doctrine. Id. Recognizing the rule that “it is fundamental that the legislature must prescribe some standard governing the scope of administrative action,” id. at 741, Kerth noted that in the delegation to the Wage Board:
There is simply nothing in this legislation which offers any clue to what the legislature intended should guide and control the Board‘s determination of proper “prevailing wage” rates. Not only is the Board left completely adrift ... but no one, including this court, is furnished any criteria by which to determine whether the Board is carrying out the assumed legislative policy as the legislature intended ....
Id. Thus, while Kerth could have invoked the nondelegation doctrine to void the statute, the fundamental obscurity of the law provided sufficient grounds for invalidation, making the nondelegation approach “unnecessary.” Id. (The above-quoted passage from Kerth applies equally to HB 389(4).)
The second example of the confluence between the unintelligibility rule and the nondelegation doctrinе appears in Diemer v. Commonwealth, supra, in which the Kentucky Billboard Act, former
Finally, our predecessor court voided the pension law in Schmid v. Board of Trustees, supra, because that law gave the local Board of Trustees virtually unfettered discretion to decide when a firefighter‘s retirement application would be granted for purposes of collecting his pension. 142 S.W. at 690. Recall that, as discussed supra, the statute allowed a firefighter with twenty years’ experience to collect his pension “if his application is granted.” Id. at 689. The Court found this statute “void for uncertainty” precisely because “thе whole matter seems to have been intentionally left to the discretion of the board without any standard to guide it.” Id. at 690. Thus, in an early articulation of the nondelegation doctrine, Schmid held:
The Legislature cannot confer upon its creature [the Board of Trustees] arbitrary power to use this fund as it may see proper. In authorizing the board to grant a pension, the Legislature must define the persons who are to receive the pension, so that the board will have a standard to guide it. It cannot leave the board to grant or refuse a pension at its whim or pleasure.
Id. As in Schmid, HB 389(4) left its purpose to the conjecture of the Board of Trustees. If the legislative intent in amending
Kentucky‘s strong stance against vague delegations also protects the rights of Kеntucky voters. Professor John Hart Ely argues that the worst delegations often occur because “our representatives quite shrewdly prefer not to have to stand up and be counted but rather to let some executive branch bureaucrat ... take the inevitable political heat.” John Hart Ely, Democracy & Distrust: A Theory of Judicial Review, 132 (Harvard University Press 1980) (quotation omitted). The “intelligible principle” requirement of the nondelegation doctrine is designed to prevent legislators from deliberately passing vaguely worded special interest (or self-interested) legislation and acting surprised when the true nature of the legislation comes to light. Professor Ely quotes Congressman Flowers‘s remarks about this tactic:
“[T]hen we stand back and say when our constituents are aggrieved or oppressed by various rules and regulations, ‘Hey, it‘s not me. We didn‘t mean that. We passed this well-meaning legislation, and we intended for those people out there ... to do exactly what we meant, and they didn‘t do it.’ ”
Id. Ely argues that the feeble enforcement of the intelligible principle rule by the United States Supreme Court has allowed “legislators [to] escap[e] the sort of accountability that is crucial tо the intelligible functioning of a democratic republic.” Id. Not so in Kentucky.
Under our precedents, HB 389(4) is clearly an unconstitutional delegation. Put simply, this unintelligible statute has neither “an intelligible principle,” J.W. Hampton, supra, at 409, 48 S.Ct. 348, nor “standards controlling the exercise of administrative discretion.” Legislative Research Comm‘n v. Brown, supra, at 915. A review of the questions posed to the Attorney General by the executive director of the JFRS exemplifies the confusion generated by a statute so unintelligible as to defy comprehension by those charged with its implementation. In fact, this statute is so unintelligible that we, unlike the Franklin Circuit Court, are unconvinced that even an expert in the field of pension benefits could, absent Senator Robinson‘s proffered advice of his legislative intent, discern that the intent of this statute was to amend
VI. PAROL EVIDENCE AND STATUTORY CONSTRUCTION.
For the reasons discussed supra, we conclude that HB 389(4) is facially unintelligible and incapable of interpretation by application of normal rules of construction.
The only legislative history of relevance is that the original version of SB 349, which stated with clarity an intent to increase the “assumed salary” in
Thus, we are left with Senator Robinson‘s own ex post interpretation of HB 389(4) and the opinion letter of William P. Hanes, deputy commissioner of the Kentucky Retirement Systems. The interpretations submitted by Senator Robinson and Hanes are contained in separate letters mailed to the Attorney General on the same date, May 18, 2000. Hanes‘s letter appears to have been written after consultation with Senator Robinson and to sim-
Although the language used in the amendment is less than clear, the objectives stated by Senator Robinson and Representatives Arnold and Gray certainly appear to be a reasonable construction of the language used in the provision.
Letter from Hanes to Carrico of 5/18/00, at 4 (emphasis added).
It is a basic principle of statutory construction that legislative intent may not be garnered from parol evidence, especially parol evidence furnished by a member of the legislature, itself.
The sources from which such intention and purpose are to be gathered are primarily the words employed, and, if they are ambiguous, or even apparently contradictory, resort may be had to the title of the statute, which is an index to the subject-matter to be dealt with, and, in case of a constitutional provision, the subject-matter under consideration by the convention that framed it may likewise be taken into consideration. Also in both constitutional provisions and statutes the intention and purpose of the body creating them may in such doubtful contingencies be arrived at by consulting the journals of their proceedings and thereby ascertain the thoughts and expressed intention of the numbers [sic] of the body when the involved matter was under consideration. Of course, the purpose and intention above referred to may not be established by parol testimony or other evidence de hors the journals containing the proceedings of the body that brought into existence the particular law under consideration. Wheeler v. Bd. of Comm‘rs, 245 Ky. 388, 53 S.W.2d 740, 742 (1932) (emphasis added). See also Decker v. Russell, Ky., 357 S.W.2d 886, 888 (1962) (rejecting testimony of two members of the enacting General Assembly as to the intent of the act); 2A Norman J. Singer, Sutherland Statutory Construction § 48.16, at 478-79 (6th ed. 2000) (“In construing a statute the courts refuse to consider testimony about the intent of the legislature by members of the legislature which enacted it.“). Compare the United States Court of Appeals for the Third Circuit‘s treatment of a similar attempt by the sponsor to explain ex post an amendment to the Civil Rights Act:
As the amendment‘s sponsor, Senator Bennett‘s understanding of the amendment might have been entitled to some weight if it had been expressed contemporaneously with the passage of the legislation. Coming one year after the Bennett Amendment was enacted, however, the statement at best reflects what was on Senator Bennett‘s mind when he introduced the amendment and is entitled to no weight .... If Senator Bennett‘s “clarifying” statement has any significance it must be as evidence that the amendment was ambiguous on its face and that its contemporaneous legislative history was not enlightening. Int‘l Union of Elec., Radio & Mach. Workers v. Westinghouse Elec. Corp., 631 F.2d 1094, 1104 (3d Cir. 1980) (emphasis added).
The rule against accepting after-the-enactment interpretations by individual legislators has more urgency when the legislation is self-serving and the legislator in question admits to having deliberately obscured the bill‘s meaning. Cf. Brown v. Thompson, 252 F.Supp.2d 312, 316 (E.D.Va. 2003) (“Resort to legislative history ... must be undertaken with caution in those instances where lawmakers deliberately insert an ambiguity to mask a political disagreement and then paper the legislative history record with advocacy statements.“).
Nor is Hanes‘s opinion letter entitled to the type of deference afforded an adminis-
Rather than accept at face value the lengthy and somewhat convoluted attempts by Senator Robinson and Mr. Hanes to explain how an amendment of
We conclude that HB 389(4), subsequently codified at
GRAVES, JOHNSTONE, KELLER and STUMBO, JJ., concur.
WINTERSHEIMER, J., concurs by separate opinion.
LAMBERT, C.J., not sitting.
WINTERSHEIMER, Justice, Concurring.
I concur with the result achieved by the majority opinion, but I do not agree with much of its reasoning. As correctly determined by the Court of Appeals,
It is beyond question that
The argument made by the Board and accepted by the majority opinion that the statute only requires that a request be made to constitute sufficient compliance is totally without merit. As previously noted,
The Court of Appeals correctly found thаt the failure to comply with the clear requirements of the statute render the amendment to
My greatest difficulty with the rationale presented by the majority is the reference to what it considers merely procedural matters as distinguished from substantive law. Substantive law is that part of the law which creates, defines and regulates rights and duties. Procedural law is an apparatus provided by statute or rule which prescribes a method of legislative operation in enacting substantive provisions. The distinction between substantive and procedural law is that substantive law relates to the rights and duties giving rise to a cause of action while procedural law is the mechanism used for carrying out a practical method of operation. Here,
The statute here is not procedural but gives a clear direction as to how the particular law is to be adopted and what conditions must be satisfied. This is not a matter of parliamentary procedure which would be clearly within the realm of the General Assembly, but something that applies to people outside of the legislative body in that it may affect the vested pension benefits of other retired employees.
There is no question that Section 39 of the Kentucky Constitution vests the General Assembly with authority to determine the rules of its own proceedings. See Philpot v. Haviland, Ky., 880 S.W.2d 550 (1994). As noted in my dissent in Philpot v. Patton, Ky., 837 S.W.2d 491 (1992), I firmly believe that this Court cannot tell either house of the General Assembly what
It has been held, except that in legislation involving contract rights, that each legislature is entirely independent of its predecessor and is vested with complete authority to amend or repeal existing laws at its pleasure. City of Mt. Sterling v. King, 126 Ky. 526, 104 S.W. 322 (1907). Here, the retirement plan in question is a legal contract.
When the interpretation of a statute affects persons other than current members of the General Assembly, the question presented is of necessity a judicial one. See United States v. Smith, 286 U.S. 6, 52 S.Ct. 475, 76 L.Ed. 954 (1932). Here, it is entirely possible that the increase in the pension benefits, although totally justified, could potentially jeopardize pension benefits for rеtired legislators or other state employees. Cf. Valdes v. Cory, 139 Cal.App.3d 773, 189 Cal.Rptr. 212 (Cal.Ct.App. 1983), which indicates that the California legislature was not free to randomly and unilaterally act without actuarial input from the board overseeing the public retirement system. Many other state courts agree. See Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1989), citing cases. The action of the legislature here, which ignores the statute largely without debate or an informed vote by the entire General Assembly, violates many sections of the Kentucky Constitution, including Section Two, which states absolute and arbitrary power does not exist anywhere in the Republic, not even in the largest majority. See also Kentucky Constitution §§ 19 and 25.
This Court declined to extend or apply the holding of Valdes, supra, in Jones v. Bd. of Trustees, Ky. Retirement Systems, Ky., 910 S.W.2d 710 (1995). However, Jones, supra, is distinguishable because here, the General Assembly chose to ignore statutes requiring the actuarial analysis before increasing benefits. In Jones, it was argued that the system had independence to set contribution rates.
I doubt if anyone would seriously challenge the proposition that the General Assembly is not above the law. The law as commonly defined includes statutes as well as constitutional provisions. It is the responsibility of this Court to decide in a proper case, whether the actions of the General Assembly comply with the Constitution of Kentucky, or the laws of this Commonwealth. Certainly, there is a procedure for changing statutes and it is well known and regularly and routinely used by the General Assembly in reaching a different conclusion from the effect of a statute originally enacted. Simply stated, it is repeal by direct action of previous legislative pronouncements.
Moreover, there is the opportunity to permit the people of Kentucky to amend the constitution if the General Assembly so
I do concur with the view expressed by the majority that the amendment of
There is a vast difference between substantial compliance and no compliance. Here, the legislature failed to follow the clear and unambiguous language of the statute. The statute is mandatory and not directory. The lеgislature simply made a mistake in approaching the pressing problem of pension modification. The problem is easily corrected by an appropriate legislative enactment.