COMMONWEALTH of Kentucky, ex rel. Attorney General Jack CONWAY, Appellant, v. LaDonna H. THOMPSON (in her Official Capacity as Commissioner of Kentucky Department of Corrections), Appellee. and LaDonna H. Thompson (in her Official Capacity as Commissioner of Kentucky Department of Corrections), Appellant, v. Honorable David A. Tapp (Judge, Pulaski Circuit Court) and Commonwealth of Kentucky, ex rel. Commonwealth‘s Attorney Eddy F. Montgomery (Real Party in Interest), Appellees.
Nos. 2009-SC-000107-TG, 2009-SC-000252-TG
Supreme Court of Kentucky.
Nov. 25, 2009.
As Corrected Jan. 4, 2010.
What about Mark Travis? His sworn testimony has been ignored, or at the very least minimized, because it does not fit into the majority‘s thesis that the Commonwealth was “without supporting evidence” for its position that Burton was impaired by drugs. If Burton‘s behavior and Travis‘s trained observations (in addition to the other evidence referenced by Chief Justice Minton) do not satisfy the majority, I am left with the impression that their new approach will require one of three things, i.e. a confession of immediately prior drug use by the defendant, testimony from a credible (indeed, credible in this Court‘s view) witness who saw such immediately prior usage, or blood tests that substantiate the urinalysis. The first two are unlikely in most cases so immediate blood tests must become the norm in order to prosecute impaired drivers who choose drugs as opposed to alcohol.
MINTON, C.J.; and CUNNINGHAM, J., join this opinion.
Joseph Todd Henning, Vickie L. Wise, General Counsel, Wesley Warden Duke, Justice and Public Safety Cabinet, Office of Legal Services, William Henry Fogle, Deputy Executive Director, Office of Legal Services, Frankfort, KY, Counsel for Appellee/Appellant, LaDonna H. Thompson (in her Official Capacity as Commissioner of Kentucky Department of Corrections).
Judge David Austin Tapp, Pulaski Circuit Court, Somerset, KY, for Appellee Honorable David Austin Tapp (Judge, Pulaski Circuit Court).
OPINION AND ORDER
I. INTRODUCTION.
In April 2009, the Pulaski Circuit Court granted a permanent injunction prohibiting the Department of Corrections (DOC) from releasing any prisoner from custody or parolee from supervision “as a result of any change caused or occasioned by the retroactive application of House Bill [HB] 406 [the 2008-10 biennial budget].”1 Four months later, the Franklin Circuit Court refused the Kentucky Attorney General‘s request for a temporary injunction, which would have temporarily enjoined the DOC from implementing HB 406 in an allegedly retroactive manner.
Because of the apparent disagreement between the two circuit courts concerning the effect of HB 406 and because these cases present issues of great and immediate statewide importance, this Court granted transfer from the Court of Appeals of both the DOC‘s petition for a writ of prohibition against the Pulaski Circuit Court and the Attorney General‘s appeal of the Franklin Circuit Court‘s refusal to grant a temporary injunction. After careful consideration, we grant the writ against the Pulaski Circuit Court and affirm the Franklin Circuit Court‘s denial of a temporary injunction.
II. FACTUAL AND PROCEDURAL HISTORY.
The relevant facts of the two underlying cases are largely the same and appear to be uncontested. In 2008, the Kentucky General Assembly enacted HB 406, the Commonwealth‘s biennial budget; and Governor Beshear signed it into law. Part I, Section I(5)(c)(4)-(5) of HB 406¹ drastically altered the law regarding whether time spent on parole would count toward a prisoner‘s unexpired sentence, providing that:
(4) Probation and Parole Credit: Notwithstanding
KRS 439.344 , the period of time spent on parole shall count as a part of the prisoner‘s remaining unexpired sentence when it is used to determine a parolee‘s eligibility for a final discharge from parole as set out in subsection (5) of this section or when a parolee is returned as a parole violator for a violation other than a new felony conviction.(5) Minimum Expiration of Sentence: Notwithstanding
KRS 439.354 , a final discharge shall be issued when the prisoner has been out of prison on parole a sufficient period of time to have been eligible for discharge from prison by minimum expiration of sentence had he not been paroled, provided before this date he had not absconded from parole supervision or that a warrant for parole violation had not been issued by the board.
In this manner, HB 406 gave rise to “street credit,”2 that effectively suspended the existing statutory law that had provided that the period of time spent on parole would not count toward a prisoner‘s maximum sentence. Indeed, the then-existing
Believing it to be in accordance with the General Assembly‘s intent, the DOC began applying HB 406 to award street credit to prisoners for time spent on parole before HB 406‘s effective date. As of November 2008, approximately 1,562 prisoners had been released from prison under HB 406; and approximately 2,135 parolees had been finally discharged from parole at their minimum expiration dates.4
Dissatisfied with the DOC‘s application of HB 406, in August 2008, Eddy Montgomery, the Commonwealth‘s Attorney for the 28th Judicial Circuit of Kentucky,5 filed a petition for a declaratory judgment and injunction against LaDonna Thompson, in her official capacity as Commissioner of the Kentucky Department of Corrections. In short, Montgomery‘s action sought to prevent the DOC from retroactively applying HB 406.
At the Commonwealth‘s Attorney‘s instance, the Pulaski Circuit Court issued a restraining order in August 2008, followed by a temporary injunction in September 2008, each of which prevented Thompson from retroactively applying HB 406 either to release any prisoner from custody or to grant a final discharge to any parolee. Both the temporary injunction and the restraining order were limited to prisoners or parolees in the DOC‘s custody by virtue of a judgment entered in the 28th Judicial Circuit.
Although he had notice of the Commonwealth‘s Attorney‘s pending Pulaski Circuit Court action, the Attorney General declined to intervene in that suit. Instead, in October 2008, the Attorney General filed a strikingly similar action in the Franklin Circuit Court against Commissioner Thompson.6 In his complaint, the Attorney General asked the Franklin Cir
Meanwhile, the Pulaski Circuit Court case moved forward. In April 2009, the Pulaski Circuit Court issued a declaratory judgment and permanent injunction permanently prohibiting the DOC “from releasing from custody any prisoner currently incarcerated within a correctional institution of this state, and from granting a final discharge to any person now subject to parole supervision, as a result of any change caused or occasioned by the retroactive application of House Bill 406.”8 Unlike the temporary injunction and restraining order that preceded it, the permanent injunction was not limited to prisoners and parolees serving sentences imposed by the 28th Judicial Circuit Court. Since the permanent injunction did not contain language making it a final and appealable order,9 Commissioner Thompson filed a petition for a writ of prohibition with the Court of Appeals, seeking to prevent the Pulaski Circuit Court from enforcing its injunction.
We granted transfer of both the Attorney General‘s appeal of the Franklin Circuit Court‘s denial of a temporary injunction and of the DOC‘s petition for a writ of prohibition against the Pulaski Circuit Court. We have elected to resolve both appeals in this combined opinion.
III. ANALYSIS.
A. Standards of Review.
Since they are in different procedural postures, the standards of review are different for the Attorney General‘s appeal from the Franklin Circuit Court than for the DOC‘s petition for a writ of prohibition against the Pulaski Circuit Court.
1. The Writ Standard.
We may issue a writ if:
the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or - [] the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.10
The DOC does not contend that the Pulaski Circuit Court acted outside its jurisdiction when it issued an injunction.11 So our focus is on the second type of writ classification.
A writ is an extraordinary remedy that should be issued only in exceptional circumstances.12 And we have ruled that the requirement that a writ may issue only if a petitioner lacks an adequate remedy by appeal is “absolute.”13 In other words, a writ may not issue “unless the petitioner can demonstrate that traditional post hoc appellate procedures do not provide him or her with an adequate remedy.”14 But the irreparable injury requirement is not as absolute. A court may grant a writ without a showing of irreparable harm “provided a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration.”15 Issuance of a writ in those rare situations is really a court‘s recognition that “if it fails to act[,] the administration of justice generally will suffer the great and irreparable injury.”16
2. The Temporary Injunction Standard.
The proceedings in the Franklin Circuit Court are not final. So it is important to remember that “[a] motion for a temporary injunction does not call for, or justify, an adjudication of the ultimate rights of the parties.”17 Rather, a temporary injunction should issue “only where it is clearly shown that one‘s rights will suffer immediate and irreparable injury pending trial.”18 In other words, a temporary injunction is of a limited scope and duration and is proper “only where absolutely necessary to preserve a party‘s rights pending the trial of the merits.”19 A temporary injunction should not issue in “doubtful cases....”20
A court faced with a request for a temporary injunction must analyze the request on three levels.
First, the trial court should determine whether plaintiff has complied with
Because the granting or denial of a temporary injunction under
B. A Writ of Prohibition Is Proper in this Case.
The first question to be asked in the writ case is whether the trial court erred by concluding that the DOC was improperly applying HB 406. After all, there would be no basis to issue a writ if the trial court had jurisdiction and came to a proper conclusion. So our primary task by application of the writ standard is to determine whether the trial court erred when it concluded that the DOC improperly applied HB 406 retroactively.
Before addressing the merits, we must resolve two important preliminary questions. First, we must determine whether the Pulaski Circuit Court had jurisdiction to issue a statewide injunction. Second, we must determine whether the DOC is actually applying HB 406 in a retroactive manner.
1. The Pulaski Circuit Court had Jurisdiction to Issue a Statewide Injunction.
No party disputes that the Pulaski Circuit Court had the subject matter jurisdiction to entertain this type of declaratory judgment or injunctive relief case. The DOC argues, however, that the Pulaski Circuit Court lacked the authority to issue a statewide injunction. We disagree.
Section 109 of Kentucky‘s Constitution assures that Kentucky has a unitary court system. Section 109 states that all “judicial power of the Commonwealth shall be vested exclusively in one Court of Justice[,] which shall be divided into a Supreme Court, a Court of Appeals, [and] a trial court of general jurisdiction known as the Circuit Court.... The court shall constitute a unified judicial system for operation and administration.” We have recent
The DOC appears to contend that only the Franklin Circuit Court has the power to issue a statewide injunction. We do not doubt that the Franklin Circuit Court, generally speaking, has such authority; but the jurisdiction of the Franklin Circuit Court is not at issue. No party has cited any statute or regulation that required this type of action to have been brought only in the Franklin Circuit Court. The lack of such authority is important because the General Assembly could easily have required this type of action to be brought in the Franklin Circuit Court, as it has done in other types of actions.27 Instead, the General Assembly expressly authorized any “court of record of this Commonwealth having general jurisdiction” to issue a declaratory judgment.28 And, as already noted, the circuit courts of the Commonwealth, including the Pulaski Circuit Court, are the courts of “general jurisdiction....”29 Although it now questions the Pulaski Circuit Court‘s authority to issue a statewide injunction, the DOC does not contradict the Pulaski Circuit Court‘s statement that “Thompson has conceded that both jurisdiction and venue are proper.”
In sum, we have a situation in which the Pulaski Circuit Court had jurisdiction, either expressly or by waiver, over both the subject matter and the parties involved in this action. Also, there is no question regarding whether venue was proper since, as stated before, the DOC conceded any venue issue. Perhaps most importantly, we have been pointed to nothing that would have required this action to have been brought in the Franklin Circuit Court.30 To the contrary, it is plain that our Constitution provides that there is only one circuit court, which leads to the logical conclusion that in the absence of express authority to the contrary, each geographic division of the one statewide circuit court has co-equal abilities and powers.
Additionally, it seems that Commonwealth‘s Attorney Montgomery would not have been able to bring this action in his official capacity in any court lying outside the circuit from which he was elected.31 So we conclude that the Pulaski Circuit Court had powers co-extensive with the
2. The DOC is Applying HB 406 Retroactively.
An argument could be made that the DOC did not apply HB 406 retroactively. Instead, as the Franklin Circuit Court seemed to conclude, the DOC merely applied HB 406 equally to all affected prisoners or parolees because the bill contains no express exclusions or limitations on the prisoners or parolees to which it applies.33 However, all parties (including the DOC) seem to agree that the DOC is
3. It is Proper to Apply HB 406 Retroactively.
Having accepted that the DOC is applying HB 406 retroactively, we must now consider whether such a retroactive application is consistent with the intent of the General Assembly, as evidenced by the language used in HB 406.
a. Estoppel Not Applicable.
We reject Montgomery‘s contention—as echoed by the Attorney General in the Franklin Circuit Court action—that the DOC is procedurally barred or estopped from retroactively applying HB 406 since it argued against retroactive application of the similar biennial budget enacted in 2003.36 To the contrary, an ad
In the case at hand, the DOC has not changed its interpretation of the same law because, even though they are similar, the 2003 biennial budget is a different piece of legislation from the 2008 biennial budget. It should also be noted that the gubernatorial administration, which has a direct effect on the officers leading the DOC and the positions taken by those officers, was different at the time the 2003 budget was enacted. It is hardly surprising or improper for different gubernatorial administrations to have different conclusions on the proper scope and effect of various statutes—even statutes of a similar nature. In short, each administration or administrative agency chief is not inalterably bound by the decisions of predecessors.
And even if we assumed that the DOC has changed its interpretation of the law, we are satisfied that the change has been sufficiently justified because, as the DOC notes, there was no commensurate budgetary reduction to support a retroactive application of the 2003 biennial budget. So we distinguish this case from those cases, such as Noland, which held that the DOC acted properly in not applying the 2003 budget bill retroactively. In short, we reject any claim that the DOC‘s interpretation of the 2003 budget bill binds it or estops it from interpreting differently the 2008 budget bill.
b. General Principles of Retroactivity.
Precedent shows that the General Assembly has the power to suspend statutes, even if the suspension occurs in a budget bill.38 Precedent also holds that the General Assembly has the power to suspend statutes retroactively.39 The question before us today, then, is not whether the General Assembly may retroactively suspend statutes in a budget bill, typically by inserting a clause beginning with the word notwithstanding. The more pertinent question is whether the General Assembly intended to suspend
We have held that retroactive application of statutes is improper unless the General Assembly “clearly manifests its intent” for the statute in question to have retroactive application.40 And although we
Optimally, the General Assembly will state clearly that it intends legislation to have retroactive effect, as it did in 1996 when it amended the worker‘s compensation statutes.43 The question is more difficult in cases like the one before us in which the General Assembly does not explicitly state that HB 406 must apply retroactively. But a failure to state explicitly that legislation is to apply retroactively does not always mean that a court may not determine that the legislation has retroactive effect. After all, the General Assembly need not use “magic words“—instead, all that “is required is that the enactment make it apparent that retroactivity was the intended result.”44 So a reviewing court may discern the General Assembly‘s intent for legislation to have a retroactive effect by using traditional tools for statutory interpretation. Among the most helpful aids in interpreting HB 406 is a budgetary analysis, such as the one found in Baker.
c. Baker.
Baker involved a scenario in which the General Assembly had failed to enact a biennial budget in 2002, leading then-Governor Patton to issue an executive spending order. That executive order provided for a 2.7 percent annual salary increment for state employees, the fact that
Despite those seemingly insurmountable obstacles to the plaintiffs’ claims against then-Governor Fletcher, we, nonetheless, chose to address “whether Appellants would have been entitled to the five percent pay increase even if a proper defendant had been named.”48 In the course of answering that question in the negative,
d. Application of Baker.
Turning to the case now before us, by using Baker as a guidepost, we may properly look to the funds appropriated to the DOC in HB 406 to determine whether the General Assembly intended HB 406 to apply retroactively.
It is uncontested that the funds allocated to the DOC were significantly reduced from the budget request submitted by the Governor.52 Indeed, as the Pulaski Circuit Court noted in its permanent injunction, the “final version of HB 406 [that] was ultimately enacted included a $12 million budget cut in fiscal year [2008-09] and a $19 million budget cut in fiscal year [2009-10]....” The “street credit” provisions were in the original budgets of both chambers of the General Assembly, and were “not altered in any manner by subsequent amendments or alterations to the proposed budgets of each chamber....” Upon request of the Senate leadership, the state budget office, assisted by the DOC, submitted a financial analysis showing the anticipated savings resulting from the street credit provision of the proposed budget, including nearly $6 million in fiscal year 2008-09 and nearly $7.5 million in fiscal year 2009-10. It is uncontested that those calculations required retroactive application of the street credit provision to realize the proposed savings.53
It is abundantly clear from the facts and circumstances surrounding the passage of HB 406, therefore, that the General Assembly wanted the DOC to save as much money as is legally feasible. Also, the numbers presented by the DOC and the state budget office to the General Assembly regarding potential savings from a broad application of the street credit provisions were based upon an expectation that those provisions would be applied retroactively.
Unlike the Pulaski Circuit Court, we find it inconsequential that the
e. Other Factors Support Retroactivity.
The DOC‘s retroactive application of HB 406 is also supported by the plain language used in that bill.58 HB 406 authorizes street credit for “time spent” on parole. Obviously, “spent” is a past
Finally, we must be careful not to examine HB 406‘s street credit provision in a vacuum. Rather, we must construe the street credit provision in conjunction with the other sections of that bill. As our predecessor court held, “[s]tatutes in pari materia or those which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose, must be construed together and the legislative intention apparent from the whole enactment must be carried into effect.”59 We conclude that the General Assembly‘s intent regarding the street credit provision may be gleaned by examining the subsection that immediately follows it.
Part I, Section I(5)(c)(5) of HB 406 provides that “[n]otwithstanding
In summary, we conclude that the Pulaski Circuit Court erred when it determined that the General Assembly did not intend HB 406 to have retroactive effect. We then must turn to whether this error is sufficient to rise to the level necessary to grant a writ.61
4. Application of the Writ Standard.
Since this is not a no jurisdiction-type of writ action, we must determine
Next, we then must determine whether the DOC has shown that either it will suffer an irreparable injury absent the writ or that the failure to issue the writ would result in a substantial miscarriage of justice.64 As stated before, allowing the Pulaski Circuit Court‘s erroneous permanent injunction to stand would result in the continued incarceration or supervision of prisoners or parolees, which would, in turn, cause the expenditure of scarce state funds to house or supervise those prisoners or parolees. There would be no mechanism for the DOC to recoup those expenses if it prevailed later on a direct appeal. So we conclude that the DOC has shown that it would suffer an irreparable injury unless a writ issues. Furthermore, we deem it to be a substantial miscarriage of justice for prisoners or parolees to continue to be incarcerated or supervised in a manner contrary to the intent of the General Assembly, as embodied in HB 406. Simply put, once a prisoner or parolee has completed his authorized sentence, justice demands that the prisoner or parolee be released from the DOC‘s supervision.
For the foregoing reasons, therefore, we conclude that a writ of prohibition should issue against the Pulaski Circuit Court in this action.
C. CR 65.07 Relief is Not Warranted.
Although we do not express any binding opinion as to the ultimate merits of the Franklin Circuit Court action,65 application of the foregoing reasoning leads to the conclusion that the Franklin Circuit Court‘s refusal to issue a temporary injunction was not “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”66 So we hold that the Franklin Circuit Court did not abuse its discretion when it denied the Attorney General‘s request for a temporary injunction.
Because many of the issues are the same, we need not repeat our discussion of the issues raised in the Pulaski Circuit Court action. But the parties to the Franklin Circuit Court action have raised four important issues that we must address for the benefit of the trial court and parties to this action, as well as the bench and bar of the Commonwealth in any future similar actions.
First, we must address the Franklin Circuit Court‘s conclusion, advocated by
1. The Attorney General has Standing to Seek an Injunction.
Among the reasons the Franklin Circuit Court declined to issue a temporary injunction was its holding that the Attorney General lacked standing to seek an injunction in this case because the Attorney General did not allege the violation of a personal right. We do not fault the Franklin Circuit Court for reaching that conclusion because it is based upon precedent, Commonwealth ex rel. Cowan v. Wilkinson.67 But, upon reflection, we have concluded that we erred in Wilkinson by holding that the Attorney General lacked the ability to seek an injunction in that case because he did not have a “personal right of any kind” in the action.68
In the waning days of his administration, then-Governor Wallace Wilkinson appointed himself as a member of the Board of Trustees of the University of Kentucky. The Attorney General sued, and the Franklin Circuit Court granted a temporary injunction prohibiting Governor Wilkinson from taking the oath as a trustee. Wilkinson appealed, and the Court of Appeals dissolved the temporary injunction.69 The Attorney General then asked the Court to vacate or modify the order of the Court of Appeals. Over the dissent of Justice Leibson, a majority affirmed the Court of Appeals.70
In the majority‘s analysis, it recited the proposition that “[i]n order to demonstrate a right to a temporary injunction, the movant must first allege possible abrogation of a concrete personal right. Some substantial claim to a personal right must be alleged in order for a movant to be entitled to a temporary injunction.”71 The majority then concluded that the Attorney General “has not demonstrated or made a clear showing by affidavit or verified complaint that his rights are being or will be violated so as to cause immediate and irreparable injury.”72 Going further, the majority opined that “[h]ere the Attorney General has no personal right of any kind [in this case]. A doubtful case should await a trial on the merits. This is clearly a very doubtful case as to the standing of the Attorney General.”73
Having fully considered the law and the arguments of the parties, we now state categorically that we have no doubt that the Attorney General of the Commonwealth of Kentucky has standing to seek injunctive relief on behalf of the citizens of the Commonwealth, as was done in the Franklin Circuit Court case at hand. So, to the extent that Wilkinson holds otherwise, it is overruled.
These bedrock principles of law giving the Attorney General broad powers to initiate and defend actions on behalf of the people of the Commonwealth were overlooked by the majority in Wilkinson. Instead, Justice Leibson‘s dissent correctly recognized:
It is the Attorney General‘s responsibility to file suit to vindicate public rights, as attorney for the people of the State of Kentucky. The rights of the people, as the body politic, are identical to the personal rights of a private individual, and enjoy at least the same, if not more, standing to seek a declaratory judgment, and to seek injunctive protection against injury. Under
KRS 415.050 , the Attorney General may proceed directly against a usurper. UnderKRS 15.020 , the Attorney General is the state‘s chief law officer and may “exercise all common law duties and authority pertaining to the office of the Attorney General under the common law.” It is the personal right of the people as the body politic and not any personal right of the person holding the office of Attorney General that is being represented here. It is unreasonable to suggest that because the person with the official responsibility to seek protection on the people‘s behalf has no personal stake in the outcome, there is no right of redress and no right to injunctive relief against the Governor‘s usurpation of power, if such has occurred.77
Accordingly, we overrule Wilkinson to the extent that it holds that the Attorney General must have a personal interest in the outcome of the litigation in order to have standing to seek redress. Instead, we now hold that the Attorney General has a sufficient personal right in these types of cases by virtue of the office and the duties commensurate with that high office.78 There
2. No Violation of Truth-in-Sentencing Laws.
In his motion for
First, the DOC has convincingly shown that many, if not all, of the specific prisoners or parolees about whom the Attorney General complains were not released “early.” More importantly, we reject any argument that retroactive application of HB 406 undermines Kentucky‘s truth-in-sentencing law.
3. No Violation of Separation of Powers Doctrine.
Similarly, we find no separation of powers violation. The Attorney General briefly contends that HB 406 violates Sections 27 and 28 of the Kentucky Constitution, which contain the separation of powers clauses.80 As we understand it, the Attorney General contends that HB 406 impermissibly interferes with the judicial branch‘s exclusive power to sentence criminal defendants. We disagree.
Nothing in the language of HB 406 alters, amends, or affects the sentences imposed upon criminal defendants in the courts of the Commonwealth. All HB 406 does, relative to these appeals, is amend eligibility for a final discharge from parole from a prisoner or parolee‘s maximum ex
4. No Violation of KRS 197.045 .
Subsection four of Section I(5)(c) of HB 406 requires that “the period of time spent on parole shall count as a part of the prisoner‘s remaining unexpired sentence when it is used to determine a parolee‘s eligibility for a final discharge from parole as set out in subsection (5) of this section.” Subsection five of that same section provides, in relevant part, that “a final discharge shall be issued when the prisoner has been out of prison on parole a sufficient period of time to have been eligible for discharge from prison by minimum expiration of sentence had he not been paroled....” Taken together, those two subsections mean that time spent on parole shall count as if it were time served in prison in order for parolees to be discharged on their minimum expiration dates. A minimum expiration date is a maximum expiration date minus any good time credit. So if no good time credit were authorized, parolees would not have minimum expiration dates, thereby rendering subsection five‘s directive that parolees be finally discharged on their minimum expiration dates to be either illogical or null. “We should not suppose that the legislature intended to be intentionally illogical, nor should we interpret the statute to bring about an obviously illogical result.”82 Likewise, “[a]ll parts of the statute must be given equal effect so that no part of the statute will become meaningless or ineffectual.”83
Finally, our conclusion would not be altered even if we accepted, solely for the sake of argument, the Attorney Gener
IV. CONCLUSION.
For the foregoing reasons, the Court ORDERS:
- The Attorney General‘s request for relief under
CR 65.07 in case no. 2009-SC-000107-TG is denied; - The DOC‘s petition for a writ of prohibition in case no. 2009-SC-000252-TG is granted; and the Pulaski Circuit Court is prohibited from enforcing the permanent injunction, entered April 29, 2009, which purported to prohibit the DOC from releasing from custody or parole supervision any prisoner or parolee as a result of a retroactive application of HB 406;
- The stay issued by this Court on May 13, 2009, in the Pulaski Circuit Court action (case no. 2009-SC-000252-TG) is lifted; and
- These actions are remanded to the Franklin and Pulaski Circuit Courts, respectively, for further action consistent with this Opinion and Order.
All sitting. ABRAMSON, CUNNINGHAM, NOBLE, SCHRODER, and VENTERS, JJ., concur. SCOTT, J., concurs in result only.
SCOTT, J., concurring in result only.
Because I believe the Pulaski Circuit Court exceeded its jurisdiction in this instance by issuing a statewide injunction against the Kentucky Department of Corrections, I can only concur with the majority in result only.
As was clearly noted by the Commonwealth in its Petition for Writ:
The request for the injunction was made by Eddy Montgomery in his official capacity as the duly elected Commonwealth‘s Attorney for the 28th Judicial Circuit comprising Lincoln, Rockcastle and Pulaski County. He was acting pursuant to
KRS 15.725 andKRS 69.010 .KRS 15.725(1) specifically states that:The Commonwealth‘s attorney shall attend each Circuit Court held in his judicial circuit. He shall, except as provided in
KRS 15.715 and KRS Chapter 131, have the duty to prosecute all violations whether by adults or by juveniles subject to the jurisdiction of the Circuit Court of the criminal and penal laws which are to be tried in the Circuit Court in his judicial circuit. In addition, he shall have the primary responsibility within his judicial circuit to present evidence to the grand jury concerning such violations.
KRS 69.010(1) specifically states that:Except as provided in subsection (2) of this section, the Commonwealth‘s attorney shall, except in Franklin County, attend to all civil cases and proceedings in which the Commonwealth is interested in the Circuit Courts of his judicial circuit.
This limitation was recognized initially by the Pulaski Circuit Court in its Tempo
I fear—by recognizing a statewide power of all the circuit courts in circumstances similar to this—we diminish the power of the Attorney General, dilute the jurisdiction of the Franklin Circuit Court, and encourage “circuit shopping” on issues such as this that are critical to the governance of Kentucky.
ENTERED: November 25, 2009.
/s/ John D. Minton Jr.
Chief Justice
Notes
The period of time spent on parole shall count as a part of the prisoner‘s sentence, except when a parolee is:
(1) Returned to prison as a parole violator for a new felony conviction;
(2) Classified as a violent offender pursuant to
(3) A registered sex offender pursuant to
Because it has not been raised by the parties as an issue, we express no opinion as to whether Commonwealth‘s Attorney Montgomery‘s position gave him a special status to file this type of action over and above the status of any citizen of this Commonwealth. But we do note that by agreed order, the Pulaski Circuit Court case was re-captioned to reflect that the plaintiff was the Commonwealth of Kentucky, ex rel Eddy Montgomery. So, like the Franklin Circuit Court case, the named plaintiff in the Pulaski Circuit Court was the Commonwealth of Kentucky, not merely Montgomery as an individual.
Since the DOC and Thompson—who collectively are directed to supervise probation and parole under
Similarly, we reject any argument that a retroactive application of HB 406 was improper because the prisoners and parolees released would tend to—or did—re-offend. Obviously, recidivism is a risk inherent in the release of any prisoner at any time; but we have been shown nothing that proves that the prisoners or parolees released “early” by the DOC‘s application of HB 406 pose a greater danger to the citizens of this Commonwealth than prisoners and parolees released under other circumstances. As the Franklin Circuit Court noted, “[n]o evidence has been presented to show that inmates released early under HB 406 are re-offending at a greater rate than the historical recidivism rate for inmates prior to implementation of the ‘early release’ policy under HB 406.” Moreover, the General Assembly has expressed in HB 406 that the public policy of the Commonwealth is, for the two-year duration of that legislation, for prisoners and parolees to receive “street credit.” Whether that policy is wise is a matter reserved for the legislature, not the courts. Owens v. Clemons, 408 S.W.2d 642, 645 (Ky. 1966) (“the legislature, when it acts upon a particular subject matter, establishes such policy.... It is beyond the province of a court to vitiate an act of the legislature on the ground that the public policy therein promulgated is contrary to what the court considers to be in the public interest.... The propriety, wisdom and expediency of statutory enactments are exclusively legislative matters.“).
Interestingly, although elected independently of the Governor, the Attorney General is also a member of the Executive Branch. See 7A C.J.S. Attorney General § 29 (2009) (“The attorney general‘s office is a branch of the executive department of state government and not a legislative or judicial branch of the government.“). So the Franklin Circuit Court case brought by the Attorney General against Thompson and the DOC is an intra-Executive Branch dispute. In that same vein, even though also elected independently of the Governor, since the Commonwealth‘s Attorney is “the chief prosecutor in the circuit court,” Commonwealth v. Euster, 237 Ky. 162, 35 S.W.2d 1, 2 (1931), and “[i]t is manifest that the prosecution of crime is an executive function[,]” Flynt, 105 S.W.3d at 424, then Montgomery is also a member of the Executive Branch. Accordingly, Montgomery‘s Pulaski Circuit Court action against Thompson and the DOC is also an intra-Executive Branch dispute.
We are aware that “though not raised by the parties, ... we have struck down another subsection of