Democratic Party of Kentucky v. Graham

PARTY OF DEMOCRATIC Movant,

KENTUCKY, GRAHAM, L. Franklin

William Judge, Respondent,

Circuit Chandler, III, Capaci

A.B. In His Official

ty Attorney as General of the Common Kentucky;

wealth of Commonwealth

Kentucky; Kentucky Registry Finance,

Election Real Parties Inter

est,

Forgy/Handy Campaign Committee,

Amicus Curiae. DRIVERS,

GENERAL WAREHOUSE

MEN AND HELPERS LOCAL UNION Sr., 89; Fields, Movants, and Lon

NO. E. GRAHAM, Judge, L. Franklin

William Court, Respondent,

Circuit III, Chandler, Capaci

A.B. In His Official

ty General of Common Kentucky; Reg

wealth of Finance,

istry of Election Real Parties Interest,

Forgy/Handy Campaign Committee,

Amicus Curiae. 98-SC-688-TG, 98-SC-685-D,

Nos. 98-

SC-687-D and 98-SC-689-TG. Kentucky.

Supreme Court of

Sept. 18, 1998. 15, 1998.

As Modified Oct.

I. FACTS. 1995, In Democratic slate won the by margin Kentucky a gubernatorial election 980,014 21,560 of total votes cast. of out Brown, Snyder, Hey- & Sheryl G. Todd thereafter, Shortly Republican Party of burn, Sullivan, PLLC, Louisville, Richard M. Kentucky complaint filed a sworn Louisville, Conliffe, Sullivan, & Sandmann Party Registry alleging that the Democratic Party Kentucky. Democratic of during campaign finance violated the laws Cox, Louisville, Scott Coleman for General 121.140(1). campaign. that election Drivers, Helpers Local Warehousemen Party with a com- The Democratic countered Fields, Union No. 89 and Lon E. Sr. part plaint alleging similar violations Rather, Lexington, Judge Kentucky Party. Julius Wil- Republican The (KSP) liam already conducting L. Graham. State Police allegations investigation of elec- its own into Chandler, Frankfort, III, Gen., Atty. A.B. In Attor- April tion law violations. Gutmann, Joseph Asst. Commonwealth’s Governor, General, ney request at the Louisville, Jones, Atty., Bryan William Office 15.200, assumed control the KSP’s Timmel, General, Attorney Karen M. 10, 1996, investigation. April Attor- On Gen., Atty. Asst. Divi- Special Prosecutions ney General and the chairman sion, White, Gen., Atty. Asst. Office Scott Investigation a try entered into “Joint General, Frankfort, Attorney for A.B. joint Agreement” establishing a task force Chandler, Kentucky. Ill/Commonwealth investigations. Paragraph coordinate their Fleischaker, Winn, Cheryl Jon R. Dins- L. agreement provides of that as follows: Louisville, Shohl, LLP, Kentucky more & jointly operated The Force will Task Registry of Election Finance. Attorney by the General and Office Jr., Forgy, Lexington, E. Thom- Lawrence Kentucky Fi- of Election London, Pitt, Handy, Stephen as V. Mark nance. All in which there is matters Combs, Wyatt, Louisville, & for For- Tarrant only deemed to be a civil violation of the Campaign gy/Handy Committee. campaign finance will be laws referred Fi- Kentucky Registry of Election COOPER, Justice. nance. All matters in which upon We called in this action to deter- Registry of Election Finance determines petitioners mine be or not whether the will to believe that there is cause jury special grand should be indicted campaign finance statute has been know- Court, empaneled by the Franklin Circuit (sic) ingly committed will be referred only legal but issue of whether narrow Attorney the Office of the General or can for a jury return an indictment appropriate prosecutor. law, violation of a Chapter Attorney In a to the General dated preliminary absent a letter Reg- Registry of Election November the chairman cause expressed opinion Attorney (Registry). Respondent istry L. his Finance William Graham, regular not seek an on a judge of the Franklin Cir- General could indictment Court, special campaign finance matter without refer- cuit has determined that the first just ring proba- consol- for a grand jury can do that. these matter actions, April petitioners the issu- cause On idated seek ble determination. ordering Judge pursuant to a motion and affidavit filed ance of a writ of mandamus office, Judge prohibit special grand General’s Graham Graham to empaneling special grand returning any until entered an order such indictments concerning allegations to hear evidence and unless determines respect there to believe that of criminal conduct with gubernatorial oc- election. KRS 29A.220. finance law has violation of specifically persons motion certain identified curred. Drivers, Warehouse- Appeals in General organizations targets investi- 89 v. Chan- Local Union No. including Party Helpers of man & gation, the Democratic dler, Union, ie., petitioners presently supra, Do the viz: Kentucky and Teamsters addressed Drivers, standing raise issues Help- have Warehousemen or, way, is put petitions, another petitioners in them Union No. who are ers Local controversy? justiciable immediately present in action. Local filed there this seeking Franklin suit in the Circuit Court in this gist petitioners’ claim The of the Attorney enjoin presenting the General Attorney and the regard is the General special jury to the on evidence the acting jurisdiction. grand jury are without grounds they peti- in this same which assert viewed, analogous to argument Thus is finding That action dismissed on tion. Louisville, City v.. that raised in Goodwin of justiciable controversy in was no that there (1948), which Ky. 11, 215 S.W.2d the grand of some evidence that the absence enjoin brought an action to plaintiff prior to return an indictment jury intended zoning of for violation prosecution threatened by the to a cause determination Therein, we stated: laws. The affirmed Registry. dismissal was jurisdiction em- concept The of the term Drivers, Appeals. of Ware- Court action, by action, contemplated braces or Helpers No. & Local Union 89 v. houseman given in the body without Chandler, Ky.App., 968 S.W.2d 680 case, necessary judiciary to 18, 1998, May request agency prevent at the restrain the order On special grand pursuant irreparable injury. RCr 5.24(1), Judge Graham entered an order Id., 215 at 559. granting disclosure of all That, course, question raises of of presented evidence would whether the return of an indictment ordering grand jury remain in session injury per Peti- irreparable constitute se. pending receipt opinion of an from the irreparable injury need tioners assert 27, 1998, try. July On both in- proven challenged not be if the statute permis- Registry requested General and fringes speech on First Amendment free publicly sion to all evidence disclose Republican Federal rights. See Colorado grand jury. heard The is of Campaign v. Federal Election Committee open opinion hearings that its must be Commission, 518 U.S. 116 S.Ct. and, therefore, proposed public; prob- its (1996). However, petition- 135 L.Ed.2d 795 hearing respect to the able cause challenging provisions of ers are gubernatorial require public election would action, 121 in this but Chapter Judge evidence. disclosure support their relying provisions on those requests, re- Graham denied disclosure persuaded are we claim for relief. Nor 18,1998 order, May and instruct- scinded his notoriety and embarrassment jury to with its proceed ed the deliber- might the return an indictment accompany of duties, ie., performance of its ations and injury. irreparable constitutes Jones Cf. an or a of return either indictment Hogg, Ky., Petitioner .” was reduced to “no true bill That order an posits that the mere return of Fields July entered 1998. Local writing and on in his against him would result indictment Appeals of petition in the Court filed president of automatic from office as removal 8,1998, Party August on and the Democratic proposition, he cites Local 89. For this petition August August On filed its entered the United States Consent Decree an Appeals of entered order the Court District of District for the Southern Court transfer, granted recommending we New York in the case United States of 74.02(5). day. transfer that same CR America International Brotherhood Teamsters, Chauffeurs, Warehousemen II. CONTROVERSY. JUSTICIABLE 4486(DNE). America, A Helpers 88 CIV. language Decree perusal one reveals is the same preliminary issue interpreted providing as adversely by the could be to Local 89 Court which resolved grand jury primarily protector an automatic upon removal from office accused, mere return of an than indictment. rather as the accuser. Historically, body regard- this has been Nevertheless, importance because of security primary ed as a to the innocent the issue raised in action and the cer- against hasty, oppressive malicious and recurrence, tainty especially of its if indict- prosecution; it serves the invaluable func- against any peti- ments are returned these society standing tion in our between the tioners, we not to decide choose this case on accused, accuser and whether lat- the return of basis whether an indict- individual, minority group, ter be an irreparable harm, ment would result but to other, charge to determine whether a proceed instead to the merits. upon reason founded or was dictated per- intimidating power by or malice and III. THE GRAND JURY. sonal ill will. jury grand system originated Eng The in 375, 390, Georgia, Wood v. 370 82 S.Ct. U.S. land with the issuance Assize of Clar 1364, 1373, (1962). L.Ed.2d The 8 569 hall- by King Henry in endon II When jury mark grand independence is its 1215, Magna signed Charta in was it did not from outside influence. but, jury; specifically grand as mention every There is reason that to believe our by interpreted English legal philosopher Ed grand jury constitutional intended was Coke, right it ward establish the did substantially operate English pro- like its life, preservation liberty property of sub genitor. purpose English The basic of land,” ject to the “law of the which we now grand provide jury was to a fair method commonly process more refer to as due of instituting against for criminal proceedings Coke, 2 law. E. Institutes Laws of persons believed have committed (William England 45 S. Hein Co.1986 re jurors from crimes. Grand were selected print). interpreted Blackstone Coke’s due body people and their work was process requirement mandating as that a hampered by rigid procedural or evi- (at least) deprived person not be with life fact, grand jurors rules. dential could by grand jury, out first an indictment a then knowledge act on their own and were free guilt by separate petit a determination a presentments to make their or indictments Blackstone, jury. 4 W. Commentaries on they on deemed such information as satis- (University England Chicago Laws 343 factory. Despite power to insti- broad facsimile). grand jury The first Press-1979 proceedings jury tute criminal empaneled in America in 1635. colonial grew popular years. in favor It early independence governmental Its from acquired independence England an in free by the exemplified influence was case of John judges. from control Crown Its Zenger, newspaper publisher, Peter who adoption in our Constitution as sole king’s criticized the withdrawal of trials preferring charges method for in serious grand juries in York. New Three successive high place criminal cases held shows Zenger refused to indict for libel seditious justice. in as instrument of And an monarchy criticized the attempting England country as in old the suspects other indict criminal information. laymen, body has convened as Kadish, Behind Door Amer the Locked anof rules, secret, acting free technical Jury: History, Secrecy, Its ican Grand Its preju- no pledged to indict one because of Process, 1, and Its 24 Fla.St.U.L.Rev. 11 special dice and to free no one because (1996). Although neither the United States favor. Judiciary nor the Act of 1789 Constitution 359, States, 362, Costello v. United 350 U.S. grand juries, the Fifth established Amend 406, 408, (1956); 76 100 S.Ct. L.Ed. 397 Rice provides “[n]o ment to the Constitution Commonwealth, Ky., v. 638 capital, person shall be to answer held (1956). crime, pres unless or otherwise infamous of Ken- Jury....” or indictment of a Grand Section 248’ of Constitution entment tucky grand jury requirement provides This has defined role of the shall consist

427 (repealed, attorneys. KRS 123.991 concurring persons, nine of whom wealth’s of twelve 198). present Ky.Acts ch. 12 1974 provides find an indictment. Section finance law was sub- offense, version indictable person, “[n]o an Corrupt Prac- stantially enacted as against by in- proceeded criminally shall formation_” This reform Ky.Acts Act.1974 ch. 253. tices An a fel- indictable offense is supervisory gave Goodloe, legislation ony, Ky. Lakes 242 S.W. financing. Lee v. over all election (1922), control an and an indictment Commonwealth, Ky.App., 565 S.W.2d people accusation made behalf of the time, first jurors For proper nine or more session. complaints of Thomas, investigate was authorized to Nicholas v. and to initiate campaign finance violations Thus, is an institution injunctive, declaratory, or civil actions for origin Kentucky. constitutional compliance. 1974 relief to enforce other generally accepted It is indictment compiled § 2 [now ch. Acts represents that there 121.120(l)(e) course, Registry had Of ]. com- cause to believe that crime been proceedings, initiate mitted, see, e.g., Branzburg Hayes, notify Attorney required to Gen- and was 665, 686, 2646, 2659, 92 S.Ct. 33 L.Ed.2d U.S. at- Commonwealth’s appropriate eral or Kassulke, (1972), Ky., v. 626 Kuhnle 489 to torney if it reasonable cause believe had (1973), 833, v. S.W.2d 835 Braden Common- Ky.Aets a had occurred. 1974 that violation wealth, 466, (1978), Ky.App., 600 468 S.W.2d 253, § compiled as KRS [now ch. 3 although no law has enacted and “[n]o been 121.140(5)]. adopted constitutional amendment has been requires that an to be founded on they indictment be Petitioners believe that Venters, probable King Ky., cause.” v. 595 special investigated by grand jury for ing (1980). 714, juris- 121.150(1). S.W.2d 714 Unlike some A alleged an violation of KRS dictions, grand file cannot “knowing” is a class violation that statute report 121.990(1). which reflects on the character of a felony. D D Since class KRS public report citizen or officer that is offense, unless felony investiga an is indictable accompanied against an that indictment allegations prima of these would tion facie Sinnette, Bowling or officer., citizen v. function fall within the traditional 743, However, 745 This is consis- jury. petitioners inter requirement tent with the that provisions of pret the KRS secret, 5.24; proceedings remain RCr for one any grand jury precluding secrecy protect reasons is to wit- returning for a violation from an indictment good per- nesses and the names of innocent campaign finance until and unless law investigated, sons who are but not indicted. Registry that first determines there Commonwealth, Ky., v. 317 knowing Greenwell to that a believe (1958).1 859, 861 interpretation If occurred. violation correct, petitioners would be enti

were probable apple. cause to two bites of the tled THE IV. REGISTRY. Registry would Both Finance cre- Registry Election was probable required make cause determi be to legislature. Ky.Acts ated the 1966 1966 an could re nations before indictment be 216, compiled [originally ch. 3 as KRS If failed find turned. either Chapter primary Its function 123]. was cause, there could be indictment. This expenditure inspect campaign re- receive and theory impression. not first one of Ky.Aets ports. (repealed, 123.086 1974 198). 130, Any filing Naegele Advertising delinquency in In Outdoor Co. ch. (6th Moulton, Cir.1985), 692 reports reported 773 F.2d cert. was statements denied, 90 475 106 S.Ct. Attorney General and Common- U.S. (1924), Ky. long public policy S.W. that has it of this 1. While has been the Fox, keep proceedings always been the case. See White Commonwealth secret Co., (1 Bibb) 369, jury, R. v. Illinois Cent. Bazzell (1986), registry all evidence col- request that KRS from the L.Ed.2d 184 was claimed In the event the investigation. in its 121.140 vested lected jurisdiction initially alleged appropriate un- local investigate General or the violations, timely campaign prosecute that local prosecutor lawful fails prosecutors agencies registry may petition the fashion, and law enforcement Cir- registry’s precluded initiating appoint criminal in- attor- were cuit Court vestigation ney prosecute, upon until and de- such motion unless the shown, good that there court shall enter termined was believe that a willful violation had occurred.. an order to effect. Appeals for the The United States Court of 341, § ch. Ky.Acts language Sixth found no Circuit culpable mental legislature substituted the vesting exclu- 121.140 with such “willfully,” presum- “knowingly” state authority sive and held that the comply ably to with KRS authority only supplementary “timely filed” before “for inserted the words agen- to that of traditional law enforcement Ky.Acts ch. good cause shown.” 1992 cies. Id. at 700. 30,46. §§ authorizes the Petitioners assert the 1988 amend- upon receipt complaint of a sworn to investi- effectively power of the repealed ment gate alleged violation of the law Attorney General and traditional en- (4) (3) (2), law. finance Subsections agencies investigate alleged vi- forcement provisions imposi- contain for the statute olations laws. tion of civil sanctions However, we view those amendments as event that “there is Registry’s probable clarifying that has been violat- cause to believe the law only alleged cause determination relates Naegele ed.” in When was decided (2) law; campaign of the finance violations compiled as what is now KRS any removing from discretion part as pertinent and read in KRS knowing to violation as to whether refer follows: (3) General; Attorney recognizing to registry there is authority

If the concludes that Attorney in- to that General’s the law has believe that suspected activity vestigate criminal is set willfully, may it refer such been violated specifically in other statutes forth more Attorney (more or to the this, infra) violation General repetition that of and prosecutor investiga- appropriate local for surplusage; fact this statute was Attorney prosecution. tion and The Gen- authorizing to inter- and appropriate prosecutor Attorney shall eral or local if it believes that the Gener- vene under responsibility prosecutions appropriate prosecutors have are al local and/or may request registry from dragging unwilling the law or to their feet either investigation. collected in its alleged all evidence violation prosecute an criminal of Naegele, In campaign finance law. as fol- was amended The statute in the pre- no intent Circuit found Sixth lows: vest scheme to registry concludes that there If the in the to the exclusion of control the cam- believe law authorities to traditional enforcement will- paign law has been violated finance investigate campaign finance violations. fully, [may] shall such violation it refer no leg- F.2d find Naegele, 773 at 700. We Attorney appropri- the- General [or subsequent amend- intent islative local-prosecutor] [investigation and] ate interpretation. depart from this ments ap- Attorney prosecution. [or The General we find the deletion of prosecutor Specifically, re- do not propriate local shall-have “investigation and” from prosecutions words KRS law] under the sponsibility 121.140(5)to an intent to divest the attorney or the evidence may request registry’s Attorney duty investigate General of his county appropriate or Commonwealth’s penal In the same of statutes. prosecute matter and violations attorney to con- decisions policy All legislation of the which deleted chapter enforcement campaign regulation “investigate cerning KRS and” from words fi- of responsibility ultimate legislature enacted nance shall be the (1988 1), appointed or elected Ky.Acts No registry. 15.242 ch. any person provides or other as follows: state officeholder directly indirectly, attempt to se- shall, or Attorney possess juris- The shall or exemptions, privileges, diction, cure or create county and with that of concurrent deroga- advantages or others for himself attorneys, investigate Commonwealth’s large in a public interest at prosecute tion violations the election General, any registry to leave Attorney county manner seeks attor- laws. en- charged attorneys employee or with neys, and Commonwealth’s shall member campaign finance laws notify the of Election Finance forcement alleged comply the wishes any investigation prosecution or but to with alternative person. election law violations. the officeholder or be free employees members shall chap- Chapter one of nine 121 is but obligation appearance or obligation in Title X of ters included any than fair interest other Statutes, all laws wherein election Revised fi- enforcement of efficient authority compiled. While the regulations. nance laws and administrative civil is limited to enforcement violations of this not be considered violation It shall Chapter clearly 15.242 vests per- other for an officeholder or subsection General, county attorneys and in a court of law son to seek remedies attorneys authority Commonwealth’s any he con- policy or decision enforcement alleged investigate prosecute legal abridgement to be an of his siders laws, including of all cam- violations election added.) (Emphasis rights. laws, paign only by finance restricted requirement notice of such investi- have Petitioners would us read gation prosecution given of context first sentence of this statute out try. interpret preclude law enforcement statute, reenacting substantially prosecuting a criminal violation officials interpreta- legislature well aware except upon refer law existing adopted tion of the statute and has “However, well- Registry. it is ral from interpretation that unless the law con- new statute, ‘in we expounding that settled contrary. language to the Brown v. tains single or guided by a sentence must not be (1952). Harrodsburg, Ky., 252 S.W.2d 44 sentence, provi but look to the member legislators depart If the intended to object to and and its sions of whole existing statutory interpretation, it is ” Co., policy.’ v. General Electric Wathen they “plain incumbent use and unmis- Cir.1997) 400, (6th quoting Pilot 115 F.3d 405 language” no doubt takable which leaves Dedeaux, 41, 51, 107 v. 481 Ins. Co. U.S. Life departure prior interpreta- that a from the 1549, (1987); ac 95 L.Ed.2d 39 S.Ct. Smith, Ky. Long intended. v. tion is 281 City Transp. Department Motor cord (1940). 512,136 789 S.W.2d Inc., (1952); Co., Ky., 252 S.W.2d 46 Bus Groce, 549 Butler v. 880 S.W.2d Commonwealth, Ky. 228 Henry v. 312 In view enactment of KRS of its itself a 32 KRS is S.W.2d chapter legisla- of the 15.242within same statute, penal of which is also the violation 121.140(5),we can- tion which amended KRS 121.990(18). felony. D Its obvi class and legislature plainly that the not conclude attempt criminalize purpose ous to unmistakably to legislation intended anyone influence official else to public or Naegele interpretation of depart from the respect performance to Registry with 121.140. statutory Those do not duties. duties of its violations, prosecution of criminal Finally, petitioners rely on the include the 121.120(5)(1992 assigned Attor specifically are 1992 enactment KRS General, attorneys, 44), county and Common- ney eh. which reads as follows: Acts authority attorneys by Viewing port of the wealth’s 15.242. to restrict indictment, whole, we find no need legisla- the statute as a discern to render we tive intent to divest law enforce- whether a different traditional address agencies authority might re- ment of their investi- scheme violate the constitutional gate prosecute alleged quirement separation powers. and violations Com- Cf. Halsell, Ky., finance laws. monwealth (1996); Trucking American Ass’n v. Com- V. CONCLUSION. monwealth, Cab., Ky., Transp. (if agree interpre- ways

We with Sixth Circuit’s there are two statute, Chapter reasonably upholding tation set of KRS forth construe one Naegele, legislature rendering it uncon- supra. validity While the has its other investigate stitutional, empowered adopt al- we must construction leged Chapter constitutionality violations KRS which sustains the statute). impose sanctions civil for non-criminal viola- tions, investigative authority its is not exclu- Accordingly, petitions for a writ sive, supplementa- but is concurrent order of mandamus DENIED

ry to that of traditional law enforcement August granting emergency relief is investigate agencies suspected criminal ac- VACATED. fact, tivity. Registry’s authority, it is General, Attorney which is not GRAVES, JOHNSTONE, LAMBERT and 121.140(5). limited Once the WINTERSHEIMER, JJ., concur. try that there is concludes committed, felony believe that a been STEPHENS, C.J., by separate dissents authority investigate terminates and it is opinion. required to refer the matter to the STUMBO, J., sitting. At- General.2 This does not mean torney General must wait for STEPHENS, Justice, dissenting. Chief conducting make such a determination before grant I respectfully dissent would submitting investigation his own his evi- petitions The first prohibition. for writ of properly grand jury. dence constituted en- matter at issue whether Presumably, why that is the statute contains criminal violations of forcement scheme for provision permitting to inter- laws, set in KRS forth foot-dragging if perceives vene unwill- 121.140(5),gives ingness prosecute part of the Attor- jur- (Registry) for Election Finance ney prosecutors, or local but does judicial to make a determination of isdiction provision providing re- not contain a similar felony prosecution. If probable cause for a they perceive prosecuting if lief authorities affirmative, question this in the is answerable unwillingness part the foot-dragging or of must be is the issue which addressed second make a probable the cause deter- a whether such scheme violates the United need a mination. Prosecutors do not such Kentucky States and constitutions. they required not provision, because prosecution waiting Reg- for the defer while majority that the The concludes istry act. under power probable to determine cause 121.140(5) 121.120(5) having is non-exclu- majority of this and Court conclud- authority the statutory pur- sive does not the of that does not and restrict ed the scheme probable yet is di- dissenting opinion suggests not indicted. When a case submitted 2. The that by finding usurp grand proceeding cause power the would the rectly jury, there is grand jury make its own inde- Venters, King RCr 3.14. under determination, usurp pendent somehow would or (1980). And, as we have concluded S.W.2d 714 judge power probable of a district to make opinion, grand jury pro- majority can in this preliminary cause at the conclusion performance of constitutional ceed with course, hearing pursuant Of to RCr 3.14. held find- whether or makes a duties ing hearing only preliminary is when the defen- held probable cause. of offense, alleged but dant is arrest for the under turn, in- process for jury laws. In it created the grand to render indictment. The fails, however, prosecuting violations of majority vestigating and address Gen- And, finally, pen- created the Assembly’s Court’s rule- it eral invasion those laws. As- by removing The General making power purportedly from alties for such violations. knowledge authority sembly charged district to determine court prosecu- felony and probable cause when it amended KRS removing grand 121.140(5) that, constitutionally, tion and probable felonies power indict for committed. Nei- can be prosecute determinations cause to majority necessary it ther does the find by courts and that only decided the district address the issue whether jurisdiction indict only re- and violate constitutional Ky. felony crimes committed. Const. quirement separation governmental Assembly §§ 12 and 116.1 The General Ky. §§ powers, and or the Const to remove those nonetheless either tried process guarantees of due the United States judiciary, powers from the or constitutional Constitutions, Kentucky and U.S. Const. (as believes) majority supple- acted to XIV, Ky. § § 2. amend. 1 and Const. vesting powers, by them in an ment those agency: executive administrative below, I For the believe reasons discussed try. Assembly is not The General constitu- majority’s interpretation, which fails to statute, enact, ju- tionally empowered to Assembly’s attempt strike down the General limiting ability dicial rules exclusively judicial power vest an in an removing from jury to indictments or issue in The General agency, executive is error. power to determine the district court Assembly statutory has created enforce- felony prosecu- for criminal superimposes ment scheme Accordingly, tion. the issue constitu- over the district court tionality properly of these statutes is before determining campaign fi- whether criminal us should be decided. may prosecuted. nance law violations impermissibly grants ju- This scheme a core Therefore, majority’s I from the dissent power gov- dicial executive branch judiciary opinion and the separation pow- ernment violation of jurisdiction to share determine corollary necessary my ers doctrine. As a criminally prosecute knowing cam- disagreement, I believe this scheme I find paign finance law violations. would 27, 28, clearly 116 of violates sections 121.140(5)unconsti- process Constitution and the due jurisdiction tutionally to deter- vest exclusive guarantees of the United Ken- States Registry. I mine cause in the Const, Constitutions, tucky U.S. amend. power that the would also hold XIV, Const. unconstitutionally abridged jury to is indict Moreover, majority’s interpre- if the since even correct, contingent power upon tation were would still leave is finding being Registry. made Fur- scheme that place enforcement ther, punishments the criminal agency power which because confers on an executive judicial essentially inseparably solely The General KRS 121.990 are nature. to, contingent upon, and Assembly thus not created the connected question suggests majority issue. The here opinion that the indictment 1. The Registry probable constitutionally permissible a cause to make for the whether it is pose any issues because a does constitutional permitted replace Registry be to a district to pursuant preliminary hearing in district court to court. making bypassed by 3.14 direct RCr can be certainly agree majority I with the While grand jury. I believe that the submission to the majority be possible a statute should construed whenever to address of whether it is fails issue constitutional, it I in the fashion renders grant power Reg- constitutionally to to valid way any case. cannot do so in instant find finding. istry probable This is a make a cause grant way I can reconcile the There is no judicial power. core power express judicial an executive branch hearing preliminary whether a The issue is not agency. by district is the sole which an court means Registry is vest- three-step statutory severable from this en- The issue of whether scheme, penalties jurisdiction forcement of KRS ed with to determine exclusive 121.990(5) 121.990, except (injunctive (now KRS fi- knowing) campaign whether willful relief) (civil 121.990(13) penalties), and KRS may criminally prosecut- nance violations be be I should stricken unconstitutional. 1985, Naegele ed was first addressed grant petitions prohibi- would for writ of Moulton, Advertising Outdoor Co. v. regarding tion action of the Cir.1985). (6th Naegele, the F.2d 692 In alleged campaign based violations investigated, Police and the State finance laws. Attorney subsequently pros- Commonwealth ecuted, viola- Naegele campaign finance I. STATUTORY ANALYSIS AND tions but not first obtain from the did HISTORY LEGISLATIVE try probable cause determination of willful majority The maintains the General 693-94. campaign finance violations. Id. at Assembly empowered Registry to share 121.140(5) time, If At that KRS stated: jurisdiction with traditional law enforcement [, investigating “the after a com- agencies suspected to investigate criminal vi- plaint,] concludes there is campaign olations of the finance As laws. [campaign finance] cause that the to believe above, disagree. I noted KRS willfully, law refer has been violated 121.140(5) 121.990, pari when read in attorney general or to such violation to the materia, purport to vest prosecutor appropriate local for investi- jurisdiction judicial to make a gation Naegele prosecution.” construed as to determination whether provision require to noti- knowing campaign violation occurred. fy subject complaint hold a due This determination is not common admin- process hearing determining probable analo- istrative cause determination stating gous agency to an its reasonable be- before a willful violation could regulations its lief that statutes or have been prosecution. at 694. referred for Id. (fire See, e.g., protec- 75.130 review, however, violated. KRS agreed. trial court On discipline); distriets-employee KRS tion Appeals held KRS Sixth Circuit Court 212.620(1) (local public programs- health traditional did not restrict “the orders); public abatement health nuisance enforcement,” powers merely add- of law but 250.601(3) (Kentucky Agricultural Ex- KRS specific procedure to be ed administrative periment regarding offenses Station-criminal by investigating followed stuffs, seeds, agricultural feeding and fertiliz- allowing Registry to complaints, own for the 325.360(1)(Board ers); Accountancy- ICRS prosecution if it deter- turn over a matter discipline); accountant law mined that criminal had been violated. (Comm’n rights Rights-civil on Human viola- Id. at 699. tions); and, response Naegele, the In an obvious (Comm’n Rights-fair housing on Human vio- Assembly campaign fi- amended the lations). See the discussion below re- also nance statutes. law Rather, rule-making powers. garding strengthen power of the was amended contemplated probable cause determination campaign viola- prosecute willful was meant the General Attorney Gener- tions. It removed Assembly replace investigate al the constitutionally must prosecute finding that 42(3), violations, Ky.Acts ch. judicial prior officer to refer- be made granting Gen- specifically while ring investi- a criminal matter both prosecutors power eral 116; and local 3.14. gation. Ky See Const. RCr investigate other and enforce violations of is a Because the determination laws, 341, § Ky.Acts 1. The ch. investigation, elections prerequisite authority Attorney general grant the to question stop- in the have effect of statutes grant- specific limited General was investigations cold unless the ping criminal Registry. Hancock v. finding. authority to the Registry makes such Cf. meaning. Schroering, (noting statutes’ Beshear S.W.2d 57 understand the Co., authority Attorney Ky.App., 648 Kentucky of the Utilities how General Reg- 535, Kentucky statutory in a ease intervene is limited process requiring governor.) istry Finance construes KRS initiation of Election legislative Attorney history preclude See also the of 1992 General 288, seeking from indictments Acts ch. below. The 1988 amendments and the first power Registry’s attorney campaign in finance matters without- also vested referring Registry for prosecute campaign willful violations the matter on its own, In attorney general if after determination. General referral to an cause (or Drivers, Helpers Local prosecutor) prosecution, prosecu- local & for Warehouseman Chandler, timely Ky.App, 968 tion in a 89 v. undertaken manner. Union No. (1998), Registry, in a letter S.W.2d 680 Assembly General further General, from its to the chair power strengthened Registry by of the Assembly creat- warned that the General had setting three-step process forth in KRS “specific procedure for ed a administrative 121.140 for the to follow enforc- campaign finance statutes” enforcement of 1) ing campaign finance law violations: procedure in- bypassing and that could preliminary complaint investigation resulting be- criminal.proceedings validate later a determination of cause that would have been “de- the offender 2) occurred; required some violation concil- at the prived opportunity to be heard process agreement non-knowing iation for level.” Id. at 681-82. administrative 8) violations; violations, knowing for af- statutes, cause, wording of recap, ter To determination referral forth, legislative prosecution. Ky.Acts they for scheme set and the ch. 46(1) (2), § history in- The 1992 amendments KRS — majority penalties creased the criminal each time As- demonstrate that the General willful) laws, knowing sembly (formerly campaign finance violations amended greater gave greater misdemeanors to D to the Class felonies crimi- knowing parts prosecu- other nalized violations of to determine course of campaign generally campaign finance See tion for finance law. violations Ky.Aets amending § eh. own in- Registry’s laws. The administrative KRS Assembly terpretation accurately agrees 121.990. The also more empow- responsibili- ered the with “ultimate and KRS confer ty” Kentucky policy jurisdiction upon provi- “[a]ll and enforcement exclusive penalties created sions” and of Election Finance to determine attempt improperly prosecution of the cam- those who would influ- whether criminal paign It process. Ky.Acts ence the finance will be enforcement laws undertaken. 44(5) 121.120(5)) Assembly beyond in- (adding eh. that the General cavil 30(19) 121.990(18)). (adding place tended exclusive of the en- More- control over, campaign finance laws with Assembly the General considered and forcement of the circumstances, rejected Registry. these I special deputy the creation of a at- Under torney general prosecute firmly disagree majority’s with the violations of both laws, interpretation, unwarranted elections and finance thus jurisdiction Regis- jurisdiction criminally giving leaving effect both enforce jury. try squarely statute the hands of the try.1992 Leg. Bill Amend- Record Senate ments, history of Amendment House Floor II. CONSTITUTIONAL ANALYSIS

p. 64. Because KRS materia,

Finally, looking pari give in addition lan- when read in legislative jurisdiction to determine whether guage of these statutes and enactment, helpful knowing will history of their it is law violation criminally prosecuted, look to the own construction of be 121.120(5), 121.140(5) and 121.990 to scheme violates the Constitution 434 gives judicial power it that a has been committed ways: expressly

four to believe crime Ky. to agency, protect] against an executive branch Const. unfounded [to and citizens 28; §§ grand jury 27 it of its Branzburg Hayes, and divests the v. prosecutions.” jurisdiction felony 2646, for 665, 686, 2659, constitutional to indict 92 S.Ct. 33 U.S. committed, 12; Ky. usurps § crimes it 626, Const. (1972), aff'g Branzburg v. L.Ed.2d power Supreme the constitutional Meigs, Ky., 503 and S.W.2d Kentucky to prescribe Court of “rules of Pound, Ky., Branzburg v. 461 S.W.2d 345 practice procedure for the Court of Jus- (1970). significant grand jury possesses A tice,” 116; and, Ky. § Const. it violates investigative powers it and resources: is an process guarantees due of the United States “inquisitorial accusing body” that exer Constitutions, Const. U.S. opportunities cises extensive discover and XIV, § § Ky. 1 and 2. amend. Const. evaluate relevant facts before decides to issue an Matthews v. whether indictment. Separation A. of Powers Pound, (1966). Ky., 403 9-10 S.W.2d powers question jury Separation grand part is a doctrine which There is no that a is very meaning real has a within Common- of the Court of Justice and a session of the Kentucky. Legislative proceeding wealth of Research in circuit is court. Brown, Ky., Sinnette, v.. Comm’n 664 S.W.2d Bowling Ky., v. 666 S.W.2d (1984). 911-15 Each of three branches of tripartite system of the Commonwealth’s 121.140(5) If, then, KRS government powers not be which jurisdiction exclusive in the vest wielded the other branches under prosecute knowing determine whether Id.; Ky. and 28 circumstances. Sections 27 laws, campaign finance criminal violations of Any purportedly statute vio- Const. which stripped improperly is of its separation powers is lates the doctrine jurisdiction felony constitutional to indict subject “strict construction of those § Ky. 12. More- crimes committed. Const. Brown, provisions.” time-tested 664 S.W.2d over, finding prose- probable no at 914. subject judicial cute is By enacting of KRS scheme by any per- review court. KRS the General As- by “any action mits review final sembly separation powers violated the doc- directly affected” person involved or by giving expressly judicial powers trine except action vio- determinations refer leg- an agency. executive branch Under the if prosecution. lations Even maintains question, islation in permit judicial could read to be power to make a review of determinations prosecute finding. authority to make cause, properly who would be the affected however, finding, unique to the such a party appeal The At- the determination?

judicial Granting RCr one branch. 3.14. torney Attor- General? The Commonwealth power of unconstitu- branch a core another is ney? Certainly alleged violator. not the Commonwealth, Ky., 916 tional. Horn v. 173,176 S.W.2d Legislative Re As the Court stated Brown, Ky., 664 search Comm’n addition, grand jury cannot since the (1984), hydraulic pressure in “[t]he indict unless first finds separate herent within each of the Branches violation, knowing cause of power, its to exceed the outer limits of even grant Ky. violates unconstitutional objectives, accomplish desirable must jury, Const. 12. It divests the Immigration .” Id. Court, (quoting resisted Bowling arm of the this Chadha, (1984), Sinnette, Naturalization Service v. U.S. 2764, 2784, 103 S.Ct. 77 L.Ed.2d 317 jurisdiction indict for fel- constitutional (1983)). urged by I would the intrusion' ony resist crimes committed. Const. and hold the role” of is to KRS The “ancient scheme unconstitutional since it determine whether “there is Ac- power (authorizing the Board of grants judiciary a core to the State of 324.350 investigations countancy to conduct deter- executive. Id. probable cause to com- mine whether there is violating anyone proceedings against power mence rulemaking B. Invasion of 325). ch. KRS distinct, related, A second and but issue Rather, probable of by statutory inva- determination created scheme is the 121.140(5)either contemplated by KRS authority by cause sion of this Court’s the General probable cause determination replaces rules Assembly prescription the form judicial prior by a officer that must be made “practice procedure” in violation grand matter to the Kentucky referring criminal 116 of section Constitution. 3.14, investigation, preempts or Supreme jury for RCr Court of has the sole grand jury. Even submission to authority practice direct regulate the “rules of empowered agencies to determine procedure where for the Court of Justice.” Ky. probable a crimi- repeated- This Court cause exists believe Const. has occurred, ly upheld authority generate its nal violation of statutes has their See, O’Bryan prerequisite not a e.g., Hedges- rules. that determination is such (1995) (hold- require nor peth, Ky., grand investigation does it 892 S.W.2d 11(C)). (see ing mandating admissibility rea that statute of determination mens section Further, replace it does the function of payment collateral in tort not source information probable determining actions the rules the district court contravened of evidence See, felony prosecution. for criminal impermissibly encroached the rule- cause on 250.601(3) Court); (stating when the making authority .g., of this e KRS Gaines Commonwealth, Kentucky Agricultural Ex- Ky., Director of the 728 S.W.2d Station, (holding investigat- in the course permit- periment that a statute violation, “testimony proba- ing possible ted a child has from who [had] by been declared court a criminal offense has competent the trial ble believe occurred, testify as a an shall it to the [was] witness unconstitutional Director refer Therefore, attorney prosecution). infringement powers county the inherent 121.140(5) judiciary”) unconstitu- tionally rulemaking au- invade this Court’s Thus, Assembly the General not consti- thority govern practice procedure tutionally empowered enact, statute, juries and district courts. judicial limiting rules ability removing to issue an indictment or stat- This Court has nonetheless allowed a rulemaking power impermissibly invading the district court the its to determine ute probable felony prosecu- comprises cause criminal to stand if the statute cause, statutorily acceptable A tion. determination of substitute for current contemplated 121.140(5), judicially procedures, Drumm v. effect mandated Commonwealth, Ky., adds an element to the various criminal cam- (1990), paign spirit finance offenses not in the or if it can “tolerated in a contained setting unreasonably comity” those of- because it does not substantive statutes forth “orderly prosecute supposed functioning fenses. order to interfere with Reneer, violator, requires courts.” Commonwealth v. try judicial proba- make a Neither of these determination of apply knowing. exceptions cause that violation is As because the ble above, typical stated this is not the adminis- scheme of KRS system of goes very that is akin to heart of our trative justice system. pas- agency stating Through reasonable belief regulations sage have violated. of KRS its statutes been See, e.g., (stating Assembly generated rules for new juries Rights operation on Human decides and district Commission courts, replacing existing there rules whether cause to believe established occurred) (grand rights has and KRS this court. RCr 5.02—.24 civil violations See courts). (district XIV, 1; § 2. These statutes Const. Ac- juries) 3.14 and RCr convicted without an accused to be allow I hold that the General As- cordingly, would beyond a reasonable proving Commonwealth invaded this sembly impermissibly every necessary to constitute Moreover, doubt fact rulemaking authority. Court’s be stricken as charged thus should crime and this this situation is not one where Court Winship, 397 U.S. In re unconstitutional. may requirements of section 116 waive the 1071-73, 358, 361-64, 25 90 S.Ct. Assembly. comity extend to the General 368, 373-75 L.Ed.2d 500.070(1) C. The Scheme Violates OR NON-EXCLU- III. CONCURRENT and the Due Process Guarantees ALSO IS SIVE JURISDICTION Kentucky Constitu- United States and UNCONSTITUTIONAL tions. majority’s interpretation were if Even already problems I have In addition correct, place leaves in it still final, outlined, fatal flaw the there is confers a scheme that enforcement by the General As- scheme enacted solely judicial in nature on execu- which process guaran- sembly: it violates the due analysis forth in the set agency. tive Kentucky Con- tees of the United States 11(B) of this dissent and section introduction proof by reducing the burden of stitutions applies equal force: in a criminal required of the Commonwealth Registry is not made determination 500.070(1) requires the proceeding. KRS administrative-type determina- the common prove every element of its Commonwealth agency’s reflecting an tion of doubt, including beyond case a reasonable regula- that its statutes reasonable belief the crime. KRS the mental state fact, just the have been violated. tions 121.140(5) 121.120(5), and 121.990 set forth finding administrative opposite is true: this requisite for “knowing” as the mental state comparable judicial-type determination is a law. felony violations of 6.04, 6.10. It RCr to an information. See empower Registry to These statutes felony comprising each the facts sets forth knowing viola- finding of whether a make the offense, prosecu- the matter then refers tion has occurred. 121.140(5) Ky. Admin. and 32 tion. See KRS Thus, it easi- statutory scheme makes prosecu- § §§ But Regs 2:030 2:040 8-9. to meet its burden may er for the Commonwealth commenced felony crime not be tion of a beyond a reasonable proving information; instead, mens rea indict- agen- an administrative constitutionally required. Ky. doubt: it authorizes Const. ment is Therefore, majority’s make that based con- cy-the Registry-to under the .120(5) struction, of the evidence. See 9 J. 121 preponderance on a (Chadbourne unnecessary, jury rev. Wigmore, effectively grand Evidence make the rev.) 1981) (Best permit. (stating “The does Supp.1996 & which the Constitution above, Furthermore, proof in a civil or as stated the decision standard of traditional by any court. preponder- Registry is not reviewable proceeding is the administrative 121.140(7). standard.”) if logically follows that require- It mens rea “[T]he ance decision, statute,” however, Registry’s can overturn the “is no court ment under jury. The end result law, can the neither question to be determined could is that the U.S., of this dilemma 612 n. Staples 511 U.S. court.” constitutional totally dispossessed of its 1793, 1800, be 128 L.Ed.2d 114 S.Ct. felony crimes committed. power to indict adjudicated by an ad- cannot be It Therefore, majority’s inter- even under By empowering agency. ministrative can- pretation, KRS whether a violation Registry to determine not stand. 121.120(5), knowing, KRS pro- only procedural violate-the 121.990 not IV. SEVERABILITY pro- but the due tections of KRS portions what Finally, we must determine the United States guarantees cess Const, are severable so question of the statutes amend. Constitutions. U.S. were example, if the portions may For the valid be and the statutes. saved oc knowing had violation portions stricken. “It is a fundamen to find invalid curred, to indict may yet decided valid principle tal that a statute effectively be grand jury would anyway, if part part, and invalid in another one rest, acting in of KRS part contravention the invalid is severable from prohibits appeals of the part which is valid be sustained.” This ren Shepherd, Ky., cause determinations. Burns v. meaningless in contra (citing Bd. Election Commis ders KRS State lan Coleman, that all principle sioners v. 29 S.W.2d vention (1930)). effect. given is to be provides part guage of a statute 446.090 Corp., Ky., Hubb v. Coal Combs (1996). 250, 252 held if statute be unconstitution- remaining parts al the shall remain Moreover, and if KRS even force, provides unless other- the statute severed, the remainder could be wise, remaining parts essen- or are so laws are not enforce- tially inseparably connected with penalties cannot because the criminal able upon part dependent the unconstitutional enforceable, place. is left stay in be what To apparent that it is that the Assem- General “fully oper- have be after severance would remaining bly would not have enacted the Club, v. Tri-City Inc. able as law.” Turf parts part.... without the unconstitutional Cabinet, Reg. Ky.App., 806 Public Protec. & Thus, question to be is wheth- addressed (1991), I dis. 397 rev. denied. S.W.2d statutory penalties er the criminal of this is that what left after the severance find enforcement scheme can be severed Only knowing violations fully operable. not alone. stand may crimi- campaign finance laws be 121.140(5) and nally prosecuted. KRS statutory The structure of the enforcement Thus, juris- one 121.990. whether views severability. scheme does not lend itself non-exclusive, dictional issue as exclusive Registry jurisdic- Because the has exclusive crime is the terms of these statutes a under a knounng tion to decide whether makes not created unless occurred, grand jury may violation has oc- knowing violation determination that indict absent such a determination. The not 121.140, According the Gen- curred. to KRS an language of scheme makes Assembly three-step inves- forth the eral set by politically ap- administrative process by used tigatory to be pointed pre- executive branch commission culminating prosecution referral requisite to indictment makes knowing after the violations operating under the direction the Court finding. penalties of appropriate Thus, knowing prosecution Justice. knowing are 121.990 for violations “essentially campaign finance violations upon Registry’s finding that a predicated inseparably depen- with and connected knowing violation occurred. prior upon” dent knowing violation. cause determination If, then, Registry is from the removed Runyon, Bailey Ky., S.W.2d felony punish- process, the and misdemeanor (1956). scheme, If, under this violations, knowing ments as defined knowing, not no further decides a violation is statutes, be removed from these would may illegal This is action be taken. remaining penalties of 121.990. The unacceptable result. a some of crime statutes would create sort violation, have but the crime would if it is true that the statutes for their Even jurisdiction impose question grant penalty. to no Nor could Court non-exclusive gap. penalty bridge from cannot Registry, to Courts sever punishments, are destroys impose common law but scheme the rest only penalties pre- process imposing regulatory created the General restricted Huyser statute. See Com- Assembly as it removes scribed monwealth, Ky. 410, knowing S.W. violations enforcement regard procedures with graft penalty ing A our established court penalty. findings onto a statute that has no Com- cause and to both Cf. McClure, Ky.App., Third, juries. monwealth v. the statu- operation (1979), 92, 96 dis. rev. denied impermissibly dispossesses the tory scheme constitutionally awarded of its facts, I can Given these believe there Fourth, process the due powers. it violates question Assembly be General and Ken- guarantees of the United States permitted penal- would not have the criminal tucky I that the Constitutions. Since believe ties of this statute to stand alone. The Gen- Assembly not have enacted would Assembly clearly eral enacted a unconstitu- penalties without the limitation the criminal can tional statute and created a crime which use, non-severa- on their I would hold them statute; only prosecuted by means of that I For these reasons would strike ble. inexorably statutes intertwined. these 121.120(5), unconstitutional KRS Accordingly, penalties are since the criminal 121.990, except KRS and KRS “essentially inseparably connected and relief) (injunctive and KRS dependent upon” set the enforcement scheme 121.990(13) (civil grant penalties). I would I forth in KRS regarding petitions prohibition for writ would strike as unconstitutional KRS 121.990, alleged action of the based on and KRS relief) 121.990(5)(injunctive except violations of the finance laws. It 121.990(13)(civil penalties). judiciary See Com- the function of the to declare Cullum, law, monwealth v. it. unfortunate not to make While (1973); Bonnie, Engle unconstitutionality of this that the unenforceable, only renders it scheme Assembly problem, can correct V. CONCLUSION not this Court. summarize, I statu-

To would hold

tory scheme is unconstitutional on several First, powers separation of doc-

bases. granting uniquely

trine is violated

judicial power, Second, prosecute, to the executive. rulemaking power of this Court is

inherent

usurped by Assembly modify- the General

Case Details

Case Name: Democratic Party of Kentucky v. Graham

Court Name: Kentucky Supreme Court

Date Published: Oct 15, 1998

Citation: 976 S.W.2d 423

Docket Number: 98-SC-685-D, 98-SC-688-TG, 98-SC-687-D and 98-SC-689-TG

Court Abbreviation: Ky.