Kuprion v. Fitzgerald

Penny KUPRION, Appellant, L. FITZGERALD, Judge, Richard J.

Hon. Court, District Division

14, Appellee, Kuprion, Real

Robert G.

Party in Interest.

No. 94-SC-334-MR. Kentucky.

Supreme Court of

Nov. 1994. 28, 1994.

As Amended Nov. Spiegel, III,

Ted W. A Thomas McAdam Louisville, appellant. Sullivan, Louisville, Ann ap-

Maureen pellee.

WINTERSHEIMER, Justice. appeal This is from a decision of the Court Appeals denied writ of mandamus challenging constitutionality Court, known Family as the Jefferson seek- ing “Family to have the Court” declared “Family unconstitutional requiring Court Judge” to transfer case to divi- regular sion of the circuit court. presented issues are whether dis- trict judge lacks matter grant dissolution; a decree of whether the can grant Chief Justice district cases; to hear dissolution whether the Jefferson Court violates Sections 27 Constitution; 28 of the wheth- appellant equal protection er the is denied the law under Federal State Consti- Appeals tutions and whether denying erred in mandamus. 29, 1993, April Penny

On Kuprion L. filed petition marriage for dissolution of clerk of A the Jefferson Circuit Court. de- cree April of dissolution was entered on system computerized 1994. Pursuant clerk, used assigned the matter was “Family presided Jefferson Court” Fitzgerald, over the Honorable Richard J. County Judge. Claiming a Jefferson District Justice; the Court of “Family mented Court” was unconstitution- al, Judge judges; and the district Chief Justice select she moved Circuit reassign the matter fund 1990 General was denied. She then implementation Court. Her motion and evalua- including project, request of mandamus sought writ tion. Jefferson Cir- reassigned

her case be amplified in report The Task Force project Family and that the Court cuit Court preamble the concurrent resolution be unconstitutional. The Court declared findings, by making it ten established which appeal mandamus and this Appeals denied fraetionalization including the idea that followed. a time family jurisdiction to waste of leads Our task is to determine the nature and delays, that it increases the time and in Coun been established in cases and creates expense involved these ty passes it constitutional mus and whether delay final between intake and an inordinate a resolution ter. We cannot deem resolution. merely or constitutional be order The the Su- Task Force recommended expedi in our cause it seem view to be Assembly and to the General preme Court wise, ent, enjoys it necessary or or even if rule, a Supreme Court establish Kentucky strong popular support. The Con project for the biennium with pilot 1990-92 law, is, in su stitution matters of state and one rural location least one urban preme all law of this Commonwealth to which Assembly project. fund the General legislature, judiciary acts Task Force The recommendations It government agent are is our subordinate. County implemented in Jefferson first were responsibility to consider whether where, family dispute once entered a constitutional re action meets violates system, all matters related to were to quirements. initially judge who was remain with the one Assembly, on The assigned to case. 31, 1988, passed March a concurrent resolu- using experimental The procedure Legislative directing tion Research Com- feasibility Project Family study Court appoint Force examine mission a Task legislature or prior to establishment feasibility establishing the need for and prac- reflects the constitutional amendment Family Court division of court. 1988 Florida, Virgi- in New York and tice followed Acts Ch. 30. HCR nia. It should be observed that members of the

public legal profession might and even the In selected three the Chief Justice colloquial easily concept be lulled into the special dis- judges to be sworn in as circuit “Family Court.” The better definition would judges to judges trict and three district be “Family Project.” be It to label it as Court special judges. as circuit His order sworn in be should recalled within district court language of March 1991 contains already the titles of “traffic court” there until appointment “This shall remain effect court,” “juvenile “probate well as The further order of Court.” court,” claims which court” and “small were Kentucky subsequently approved Court of 24A.110(1); by statute. KRS created KRS Family for the Jefferson practice rules of 120(2); 24A130; KRS 24A KRS 24A230. project Currently Family Court Court. percent of the actions for dissolution hears 75 was to make The Task Force directed percent marriage, and 25 are heard conclusions, findings including summar- Assembly the General circuit court. might legislation ies recommend. funding permit the size of the increased Task included five The 16-member Force judges eight from to and, project to increase six after members of the General expected disso- July, that all new 1994. consideration, recommended that rather due Family placed immediately lution actions will Family create a Court than regular Kentucky, project rather than on pilot Family project Court be Court initiated; pro- The Court pilot project imple- circuit court docket.

jeet adoptions, ject provides all continues hear termi- because 26A.020 KRS parental rights, dependency/ne- nations of place judge what is to take unavail- when a glect, paternity juvenile perform matters. able to duties. assignment judges disagree. appellant cite We can voluntary made on a basis. proposition unavailabil- case, judge district well as all ity sitting judge grounds is the sole appoint- other district who have been tempo- the Chief Justice can make a special judges, ed as circuit have the neces- rary appointment for prompt disposition sary qualifications to serve as appoint- causes. This sustained the judge. Ky. § circuit Const. 122. special ment of retired circuit as a judge

Penny Kuprion complete L. to allow him to claims that a dis his caseload judge subject jurisdiction despite trict the that lacks matter fact his successor had al- ready grant marriage. Regency to a decree of dissolution of taken office. Pheasant Run 113(6) (1993). Karem, Kentucky She cites Section the Ltd. v. 860 S.W.2d 756 24A.110-130; Constitution and KRS KRS appointed The Chief Justice has also a agree 406.021 and KRS 406.140. We must judge judge circuit special retired as a circuit a judge capacity that district in his as district litigation to hear the voluminous asbestos jurisdiction judge has no to hear a dissolution Jefferson Circuit Court oth- because would However, in ease. this situation the district clog every erwise the dockets of division judges properly special involved are sworn as McCrae, Huntzinger Ky.App., that court. 110(5)(b) pursuant judges circuit to Section (1991), permitted a chief re- of the Constitution in to order hear gional judge appoint special to a cir- circuit jurisdic eases which fall within the exclusive judge region. Although cuit from outside the tion the circuit court. The district court regular is unclear circuit whether the cases; Only cannot hear divorce the circuit judge sit, panel unavailable to that was the power. court has that Appeals Court found the that fact that the is inherent in the nature of the special appointed Chief not Justice had multi-judge court, branch that in a judge not a material departure was from the a single including the actions of member upheld special judge’s statute dis- acting Chief Justice in an administrative ca complaint. missal of a pacity reviewing to review. The It should be that Section 109 remembered can presumption court take notice of a a the Constitution established trial court of regularity to to be accorded the actions un jurisdiction, court, general known as a circuit preclude der review which does not a review jurisdiction, trial and a court of limited constitutionality of the substance and of such court, only as known as the district trial ap actions. Here actions orders courts, Kentucky. courts in two to- Those pointment improper. Accordingly, not were gether Supreme Court and the aspect we now consider Appeals, only judicial Court of are the enti- the actions. single ties into which the Court of Justice reject We must her claim because shall be divided. of the Section 113 Constitu- 110(5)(b) pertinent Section that states provides tion that assign temporarily the Chief Justice shall jurisdictional shall determine limitations for justice judge any of the Commonwealth to provides court and district Section Supreme sit than court other appellate jurisdiction assigned shall be assignment when Court he deems such nec provided by the circuit court law. The essary disposition for prompt causes. original circuit court also exercises all other argues also that the Chief She Justice not vested some other court. 110(5)(b) appoint recognized not use a It is Section district further temporary judge special judge provided as a circuit not create court Jenkins, order hear dissolution actions under the the Constitution. Hoblitzel v. pro- of the Jefferson 263 S.W. 764 aspects of involving if cases 26A.020 does mine domestic must conclude that KRS We adjudicated more ef- relations can appointment power limit the Chief judge, fectively so-called “one one under the pursuant to Section Justice family” is based on approach. procedure which it establishes cir- assignment of district and temporary actually unavail- when a exercised in a judges serve special cuit able sit. temporary capacity. No new divisions of 110(5)(b) provides the nec Section been created. court have essary authority Justice to as Chief Penny new Kuprion L. maintains court sign judge temporarily other res The concurrent court has been created. prompt Court for dis than possibilities considered both olution position of causes. The discretion or a division of development making appointment Chief Justice court, leaving possibility open necessary prompt limited to that by the problem faced ultimate solution case, disposition of causes. In this such dis might be a constitutional amend Task Force supported by report cretion was truly argu creating a new court. This ment Feasibility Task Force and the might been rendered moot if the ment have adoption HCR 30. of Court used Task Force the orders Penny Kuprion’s prong The second of as in the case of the the word “division” against validity Judge argument of Fitz of a Small Claims Division of district creation special judge circuit gerald as a is that Dat courts. Hibberd v. Neil See Huffman order of the Chief Justice dated March (1990). sun, Inc., It Ky.App., 791 726 S.W.2d temporary give not 1991 is not because it did use of the “court” is obvious word appointment on which the a date certain any a court more not itself make does expire. The order recites that “four mentioned Con than the courts” appointment shall continue “until further or stitution are addition to Unified Court ders of the court.” might The words have been used of Justice. precisely, they give do rise to more but not 110(5)(b) Section of the Constitution infirmity. any constitutional unbridled, not does confer absolute or unlim capaci telling tempo on particularly aspect ited the Chief Justice in his A ty system. rary Chief Executive of the court be nature of this situation can seen only temporary ap necessity legislative funding The Section refers of this pointments provide judi of for the of project in each biennium prompt disposition of budget. funding suspend causes. should be This could be cial pointed “temporary” by any succeeding Assembly. out that re word ed General appointment judge. Property, Ky., lates 797 Hayes of v. 731 S.W.2d State (1987). way a temporary In no can court be created have The cases which considered by an relationship budget questions order the Chief Justice. Such an between extraordinary can budgeting action must be rooted in fact reflect the fact that statutes temporary appoint many ways and the reason for the most dramatic means appoint express ment be noted in the should order which a can itself. Cf. 113(6) Collins, Commonwealth, grant Armstrong ment. states that the rel v. Section ex (1986); v. Ky., for a district comes from 437 Smith Ken 709 S.W.2d Com’n, Assembly Ky.App., tucky Racing the General and not from oth 697 State (1985). entity. appointment special judges budget is the er S.W.2d 153 “Since language principal a foundation in the instrument of resource allocation Section govern policy planning, 115. state reflects policy priorities.” Mil public ment’s See P. here is that situation ler, Kentucky Do Politics and Government: project is a concurrent session of (1994) p. at 227. Stand United We already existing district and circuit court di- 83 84 response to The introduction of Bills visions and is convened in HCR Senate and the ad- purpose project the 1994 General 30. The deter- 684

journment body having along without acted the lines of clear abuse discretion upon legislation consequence no by trial usually court. The term is related our say consideration. It mere dicta to activities, applied trial court but can be that it if helpful would be As- judicial authority the use of respect, sembly had indicated a time in which frame particularly the authority when is conferred conduct the and had by the Constitution. “Abuse of discretion in required report to be submitted to it within judicial power relation to the exercise im However, frame. time it does affect not plies arbitrary capricious disposi action or concept tempo- our consideration of the of a circumstances, tion under the least an rary appointment. unreasonable and unfair decision.” Ken tucky Russell, National Park Com’n v. 301 “temporary” The word means transient or (1945) Ky. 191 (referring 214 S.W.2d passing permanent. Rogers but not v. Cf. York, Harvey Ky. 605, Louisville, Corp. Coal v. 252 67 City 296 176 S.W.2d (1934)). (1943). City 977 S.W.2d See Also Louis “Temporary” 387 is a word of much Allen, (1964). Ky., ville 179 elasticity S.W.2d meaning and it has fixed legally The exercise of discretion designates any sense must period fixed Lockhard, Mo., Appeal § sound. See time. Kahn v. 5 Am.Jur.2d (1965). (1962). P. Perhaps Error the most colorful definition “temporary” peri- the word is “for a brief Allen, City Louisville time, limited, od transitory, or (1964), provides very a number of sound time, cul-de-sac, highway of a limit- definitions for the term “discretion.” eternity.” Simplex less boulevard of Precast “ Industries, Biehl, Inc. v. 395 Pa. liberty privi- ‘Discretion’ of court is a A.2d 121 lege judge, allowed to a within the confines right justice, of and to decide and act in appointment of special judge Here the a is fair, equitable, what accordance with is and time, for an indefinite language but the wholesome, by peculiar as determined appointment by stating order limits the “un- circumstances of case....” Cited in til recog- further order of Court” Welisch, In re 18 Ariz. 163 P. 264 upon nizes that the occurrence of some event (1964 [1917]). appointment will cease to exist. The Chief Justice has not exceeded his constitu- discretion, applied “This when to a Court authority. tional Justice, judicial of means sound discretion A very law_ old Arkansas decision indicated by guided It not must be arbi- that reassignment a statute would be trary, fanciful, vague legal “temporarily” unconstitutional in because regular.” Stanfield, v.Watt 36 Idaho permanent state constitution is not or last (1960 [1922]). 210 P. 1000 ing interchange judges. of Knox v. Beime & implies “Discretion in the absence of (4 Pike) Burnside, 4 pow Ark. 460-464. The positive fixed law or rule the is to er of the Chief Justice is not It absolute. by question expediency decide his view of grant authority must be exercised under justice. equity or demands of by subject ed the constitution and is to re Citing People Surplice, Cal.App.2d by Supreme view the entire Court. The use [(1962)].” 784, 21 Cal.Rptr. 826 authority simple is because the simply is stated in the Constitution. The problem The need address the authority prompt dispo is fact related “Family has come to be known as Court sition of causes with element of discre some Practice” was demonstrated the Task tion. in detail. Force sufficient pause must Chief

We to consider the status Justice is established Sections of the actions of the Justice. find Chief We 110 and of the Constitution. The Chief them to be acts of not an discretion are Justice was within his authori By ty accept abuse of that of com report discretion. means the Task Force and parison, we frame our standard review his sound then exercise discretion as to complies 27 and 28 request of Thus it with Sections implement the how and where to separation preserving the Constitution Task Force. temporarily assigned use of powers. argument third is that Jef already part judges are of the Court who Family project Sections Court violates ferson of the Con- complies with Section 109 Justice Constitution and 28 of Family Court Consequently stitution. The issue therefore unconstitutional. project is constitutional. Family whether the establishment project usurped has Court Penny Kuprion not de L. has been assign matter power to guaranteed protection of the law equal nied provided in to the circuit court as Section She State Constitutions. by the Federal and by KRS of the Constitution and detailed any virtue not discrimination suffered 23A.010. assigned to an elected having her case judge sitting approved special as an district question of It involves the whether Family project. judge in the Court circuit judicially project separate Court re could have resulted Such submission within the created court Justice assigned gardless of whether the cases were consequently despite le- unconstitutional alphabetically any other manner. gality pursuant of appointment to the Consti- hearing judges must be remembered tution. judges as may who have been elected district It should observed serving capacity not in that but rather amendment of 1975 the constitutional judges proper to a special pursuant circuit by may sections created have resulted appointment by the Chief Justice. The dis McSwin, overlap authority. D. some See judges in this hear trict involved note, Legislative Judicial Power Ken- custody capacity divorce and cases their Errors, tucky: Comity Ky.L.J. A only. special circuit (1983). However, there has been never Although question alphabetical dis- question Court has author- crimination be real some circum- responsibilities ity upon pursuant to act its stances, prejudicial does it is not here and Section 110 the Constitution. Ex Parte require interference with (1978); Farley, Ky., Regency 570 S.W.2d 617 project. palpable There is no error or Run, Ltd., supra. Pheasant injustice required by as CR 61.02. manifest through There is authorization grounds. for There is no basis relief such delegates authority which HCR re- Appeals The of did not commit Court Legislative appoint Research Commission to for denying petition in versible error the study a Task to a Force the establishment of Appeals properly mandamus. The Court of family court or division of court devoted Family the Court determined that problems management law and the and reso- “joint pro- temporary a research project is of Task lution law cases. The Force Assembly judiciary ject” of the and General super- recommended Chief Justice constitutionally permis- in a and is structured project capacity in his as head of the vise of panel The of the Court 110(5) sible manner. pursuant Court to Section Justice con- Appeals Judge Fitzgerald was held project pilot the Constitution. The was de- capacity spe- stitutionally in his a vested using judicial veloped existing resources appropriate circuit cial only available. in the constitutional manner jurisdiction matter consider the divorce not The Chief Justice cannot did create Ap- Accordingly proceedings. the Court new new courts. denying petition in peals was correct Family project The not estab- Court does a mandamus. writ of separate pursuant lish a new court implementa- project say Constitution. The not us Section 109 constitutionally project in could have been accom- resulted a authorized tion judicial Family Perhaps in plished a better fashion. unit known Court a judicial already assignment of cases should be on random resources in existence. uses basis; perhaps by litigants participation funding pilot program by The voluntary; perhaps Assembly approval should be gives the establish- General to the ac- Family ment a by Court should have been as tions taken the Chief implement Justice to a division of the circuit court -with a definite the recommendations of the Task Force set imposed by by legislature. up Assembly time limitation the General itself. The Our task is to pilot determine the nature of concurrent resolution which created the what has project requires by been established and its constitu- funding periodically legislature. tional status. The funding duration project clearly duration of the approximately Our research indicates that legislature. within bounds Under adopted Family fifteen states have Court comity, judiciary the rules of has not concept degree. comprehensive to some A province legislature. invaded the Family system review Court Chief Justice cannot and has not created a United States in an found article system. court The General could presiding Judge Page Robert W. of the Fam- or, require project a termination of ily Superior Division of the Court of New effect, report a which could be used to deter- Jersey Family in 44 Juv. & CtJ. permanent mine the Family status of a interesting One the most observations Court. by Judge Page made is that optimal “the experience reported The Florida re In Re- situation would be the of a establishment Courts, port Family Family Commission on su- highest Court as division of the pra, required jurisdiction.” each general court of circuit Id. at 40. develop Florida was to a local rule establish- Family Our review of establishment of ing Family division its circuit. In formu- Virginia, Courts pilot indicates that lating its establishing Family local rule complete was in no more than ten division, each circuit Florida was years. York, Family New Court was develop plan its in accordance with avail- pursuant established local develop able resources and was also to Const, VI, § amendment. N.Y. art. See appropriate plan jurisdiction an for its as if a (Amended 1961). Court Family division were properly funded Family Florida adopting created a concept state. The of a division of the circuit Report opinion. the Task Force In re entirely foreign Report Cts., the Com’n on jurisprudence. why There is valid no reason (Fla.1991). So.2d Assembly, the General assistance concept indicates judiciary special committee pattern single adopted by all the states judiciary should not be able formulate a system. Simply calling have used the some- program workable which would combine the thing Family always Court does not make district and E. Shepherd, such. Robert Jr. Juvenile Cf. circuit courts and of include the feature one Justice, (1993) 8 Crim.Just. 37 judge/one popular so in Family case Court parlance. It should be clear that the creation of legislature court is vested in the vexing There remains a concern about how

by virtue of Sections and 113 of the long temporary appointments the can be Constitution, and new district or circuit implement Family to project. used the Court only upon courts can be established a certifi appropriate not for this Court to advise necessity by cation the pilot project as to a when such Court. completed. a should Such decision is form, any, final if Court legislative judgment. within their Fu- sound legislation. will need to be detailed in That litigation length to project ture does not govern- mean that one branch necessarily by not foreclosed our decision ment cannot assist another govern- branch of here. in analyzing ment the methods to a make system government including Judge Fitzgerald adminis- must conclude that We tration of presiding matters more in effective. over dissolution action a Judge a to a District proper pursuant of Circuit and constitutional manner Judge; properly, if did that he did special as a he appointment to his circuit 110(5)(b) no more. that and conformity in with Section does Constitution. fundamentally, though, I believe More court create a new and unconstitutional not dissenting by misled opinion has been Sections 28 or 109 in violation of Penny Kuprion and Robert fact that both L. Consequently, Penny Ku- Constitution. arguments their Kuprion framed the briefs prion equal protection of has not been denied Legislative Research Com’n reference pursuant States law to either the United (1984), Brown, Ky., 664 S.W.2d 907 Kentucky Constitutions. The Court or (as the leading authority of this court modem correctly denied mandamus. Appeals correctly quotes) opinion on dissenting Kentucky’s constitution Appeals “mandate” The decision of govern- of one branch of deny “prohibit is affirmed. incursion writ mandamus and functions of ment into origi- SPAIN, STUMBO, JJ., (emphases LAMBERT, others.” Id. nal). Justice, of the court MILLER, Much the discussion Special and ROBERT S. Brown, attempts which involved series concur. delegate ex- by the REYNOLDS, J., majority concurs in operation, means of pand its own traditional only. opinion in result sought to be turned on whether duties for this court to assigned or stretched called Justice, MILLER, Special ROBERT S. “a apply the constitution strict construc- concurring separate opinion in also files a or “a so-called liberal construction.” tion” STUMBO, JJ., join. which SPAIN and dissenting opinion at 914 and 913. The Id. TACHAU, Justice, Special files a DAVID language of over harks back to this over and separate dissenting opinion. Brown, from I is so far afield which believe that we would be the issues before court STEPHENS, C.J., LEIBSON, J., did just as a served consider Brown well not sit. body Brown did a different law. directly MILLER, Justice, on issue between Special focus ROBERT S. branch, legislative branch concurring.1 two much less on an issue where the branch- agree entirely I result and agreed, express have nor there are es where opinion, reasoning principal of this court’s provisions point oppo- reasoning but feel constrained on facts before court. site directions respectfully dissenting opinion propose Thus, some, severely gives opinion analysis underlying indepen- which I believe is- resolution guidance limited dently opinion. supports principal the court’s Indeed, footnote, sues this case. my dissenting ofMost differences with the pointed itself out our constitution principal opinion opinion are covered question faced confuses the theoretical itself, notion, are self-evident. The Brown, “certain normal functions because example, that the Chief Justice has created granted to specifically branch are anoth- one legal court is to me at conclusion new best is this case. er.” Id. at 912. That adopted reasoning a differ- to characterize subject, between the execu- play on The historic interface ent and at worst words. hand, branches, other grant tive on the purported The Chief Justice to (and disqualified himself virtue am I know that the au- Leibson need have 1. I not unmindful not) participated dissenting opinion having the 1991 Order or of of thor also Court, Coal, but development language Kentucky East of the Jefferson Utilities v. South so, (1992) plainly having itself Ky., done the constitution S.W.2d 407 to the effect that 836 requires appointees" participate in involving "executive "[a]n issue administrative Justices, 110 this under sentence in Section this its decision Kentucky Court must determined in- which was not appointees.” Id. at 408. Constitution rather than executive case, East Coal. nor Justice volved in South As held in Chief Justice 688 finely complex.2 (1982); Huff, Ky., v. textured and Combs Unlike the 153 858 S.W.2d bright (1993). of a

existence line between those two McCoy See also v. Western Bap 160 suggested very branches as is different Hospital, Ky.App., tist 628 S.W.2d 634 Brown, context of rare case where (1981). See, distinction inherent roles is clear. hand, the other recog- On this court has Commonwealth, for example, Lovelace v. 285 apparently nized areas of per “impair- se (1941) Ky. 326, 147 (probation S.W.2d 1029 v. legislative ment” when confronted with at- parole). typical long Much more is the tempts judicial-branch purely control more standing willingness this court to allow a matters, great limiting legislative contempt use of deal involvement Meade, development Arnett v. procedural powers, Ky., rules under 462 S.W.2d judicial system (1971), which every auditing Bar, functions 940 the finances of the day. Accounts, specific provi Without Parte Ex Auditor Public Ky., sions, court, “comity,” this as a matter of has (1980), applying general 609 S.W.2d 682 long legislative rule-making allowed this Open records, Ex Records rules to court judicial power, long area of “inherent” so as parte Farley, (1978), Ky., 570 617 S.W.2d operation of the courts was “im witnesses, judging competence Gaines paired,” thereby. or made “unworkable” Commonwealth, Ky., v. 728 S.W.2d 525 Mayer, Burton v. Ky. 263, 274 118 S.W.2d Commonwealth, Ky., (1987), Drumm v. 783 (1938). 547, “Cooperation” 549 of these co (1990). S.W.2d 380 equal encouraged branches was often More for litigation, though, instructive v. through years. Commonwealth willingness has been this Furste, court’s share its Ky. 631, (1941); 288 157 S.W.2d 59 familiar functions when it chooses Payne, 819, and for Clark v. 288 157 63 S.W.2d it, Commonwealth, and the concomi- satisfactory to (1942); reasons v. Ky., 343 Craft (1961). respect principle tant of that on the approach S.W.2d same 150 con Assembly. See, period example, the General for adoption tinued in the after the Commonwealth, v. present constitution, expressly Ky., which 436 directs Lunsford rule-making 512, (1969), control 514 court. en- Commonwealth, O’Bryan apparently binding acted rules involving relationship Congress 2. The delegations between and the fed- reluctant to make broad use of judiciary, beginning eral with a tradi- different being uniquely judi we would think as language, tion and different constitutional en- privileges, evidentiary cial functions as be problems, resolving counters quite differently same them lieving "particularly those to be Kentucky. than It is therefore University Pennsylvania Equal function.” doubly misleading dissenting opinion Commission, Employment Opportunity 493 U.S. quotes places quotations several Brown’s from 182, 189, 577, 582, 571, 110 S.Ct. 107 L.Ed.2d opinion Supreme United States Court. (1990). law, 582 In the area of administrative fact, begins analysis veiy the federal Supreme began place the U.S. at the same "Congress may prescribe broad notion how Homes, Beauty infra, pulled as American federal courts are to conduct themselves away position early from that as United States respect subject Congress matter over which Buell, 576, 582, ex 172 rel Bernardin v. U.S. 19 plainly legislate.” has Prima Paint 286, 287-88, 559, (1899), 43 S.Ct. L.Ed. Co., Corporation Mfg. v. Flood & Conklin development body of law which Professor 405, 395, 1801, 1806, U.S. 87 S.Ct. 18 L.Ed.2d queer,” Davis calls “a little best and at difficult (1967). reason, For that the federal Davis, to rationalize. Administrative Law Trea procedure adopted pursuant rules of civil (1958) page Supreme tise 182. U.S. statute, authority granted by and are public policy Court’s search for the declared Guides, being by Congress. overruled Business inferentially by provi various U.S. constitutional Enterprises, Inc. v. Chromatic Communications complex Kentucky's, quite sions is as Shipp, Inc. and Michael 498 U.S. See, Horwitz, example, different. "The 922, 933-34, Con S.Ct. 112 L.Ed.2d Change: Legal Fundamentalily stitution of (1991). with Similarly, Supreme the U.S. Court holds out Fundamentalism.” H.L.Rev. “Congress confer courts federal respect Congress’ authority With to limit controversy over case might (particularly application courts call law.” federal Court), Rhodes, Nigeria, Verlinden V.B. v. see Calabresi and “The Central Bank 461 Structur 492, Executive, 480, 1962, 1971, Unitary U.S. 81, 103 S.Ct. 76 al Constitution: Plural Judi L.Ed.2d (1983). (1992) ciary,” 91 The U.S. been has 105 H.L.Rev. 1153

689 judicial prac- certainly rights procedure, understated criminal and but added statute, they a it in Commonwealth ex rel. that “shall not be effective as tice when said Wilkinson, Ky., a reso- shall be construed as concurrent 828 S.W.2d 610 Cowan v. Appeals.” (1992): to the Court of lution directed pattern similar public policy

A can be seen when Clearly the establishment delegate functions to legislature attempts authority of the courts. not is within judiciary wholly appropri- which are not Id. at 614. government. branch of This court ate this early development of stages In the way general Legislature holds in a that “the judicial system, that the British/American delegate legis- is without ordinarily precisely the courts did. was County to the courts.” lative function Boone quoted in Mash v. Com- Justice is Cardozo Verona, 227 v. 190 S.W. Town of (1989), monwealth, aptly 769 S.W.2d (1921). extraordinarily pow- In calling judge-made law the “blend” Beauty Corp. of American Homes erful case Id. 44. That public policy formulation. Planning County and v. Louisville “comity” the converse “blend” is Commission, Ky., Zoning and judiciary’s legisla- tolerance of dominates (1964), Clay ex- Commissioner judicial If it into the arena. tive incursions pressed branch the frustration of law,” “the not for common law libraries were require legislature’s attempt to Kentucky in would be shrunken remnants hearings highly de courts hold novo quoted statement is themselves. above charged, cases, highly political zoning true, however, entirely one focuses when view, expressed strong legislative both on (a) legislative power express grant on delegation judi- to the interference with (b) constitution, any matter by the and/or ciary: legislature actually acted. which the independence order say: entirely correct to Thus is departments government distinct three public policy grant- is establishment preserved, principle it is a fundamental beyond legislature alone. ed legislature prov- cannot invade of court vitiate act of judiciary, [citations omitted] ince grounds poli- public on the away judicial It cannot power, [cita- take cy promulgated contrary therein is to what impose upon Nor omitted] tions public to be the court considers duties, nonjudicial judiciary [citations Ex Rel. Cowan interest. Commonwealth omitted]. Wilkinson, Ky., S.W.2d at 614. v. however, zoning, judi- in the area of Even added) (Emphases fact-finding cial engaged has been since however, rule, Even clear Homes, Beauty approved by American right “jural rights” to find ex- this court’s courts, Bryan as in v. Salmon constitution, impliedly in pressly or our see (1977): Corp., Ky.App., S.W.2d (1993), Jones, Ky., 864 S.W.2d 885 Wittmer compelling The circuit found a need policy-making to limit the role property changes ... The rezone the prospective legislation, as this legislature to compelling found the court dictated the “crystal courts court has held it clear that housing ... need Here we have short- the is- proper are the forums to determine age, way a feasible to extend urban ser- past presented interpretation sues vices, housing and a demand for Baldwin, Ky., Akers v. transactions.” area. 294, 309 On the other side of the interface between here, however, is a functional are those Even there branches “comity,” judiciary equivalent eases on its own moves doctrine where given legislature’s daily grist legisla- expression of intent into areas which are the deference, given control- acknowledging even if it cannot be tion. While that we are continuing ling Appeals most re- here effect. even asked resolve the role, cently Wigginton judiciary’s applied principle proper about the debate 690 Caldwell, case, Ky.App., dealing FIRST,

Com. Ex. Rel 760 S.W.2d that we are here with a (“[W]e (1988). (a) problem 885 have no with expressly the where the constitution has dele- apply court’s decision to not KRS gated legislature 406.031 function However, retroactively. realm, (b) judicial the enactment of expressly granted to provide guidance that statute does in that it the Chief Justice of Court a clearly legislative evinces a intent to limit power purports exercise, which he to here ...”). liability SECOND, where each branch has sought the cooperation and obtained In such cases as Rose v. Council Better other. Education, Inc., (1989), Ky., 790 186 S.W.2d gone legislative far this court has to force anywhere If I differ from the entire rea- extraordinarily complex branch adhere to opinion Court, soning principal of this mandates, but, and difficult constitutional at my principal it be in belief that the time, urges upon the same “restraint” itself opinion seriously “tempo- too takes the word accepts responsibility when it sense, rary.” In the most fundamental it is legislature’s Philpot own rules. v. Pat general way futile to determine some ton, (1992). Ky., 837 Judge acting whether is in a FitzGerald Indeed, this court when moves back and “temporary” capacity. princi- As this court’s very forth boundary across the difficult line notes, pal opinion Judge since FitzGerald proper between and excessive reliance on the court,” serves until “further orders of the his policies judiciary, that it is by a whole. one constitutional sentence as that the need addressed the accord, important that the 1991 Or- would end of its own once the schools therefore more (not implement the up running “[i]n and to mention once order to were der was entered they by subsequent Project County,” As- Family funded in Jefferson were semblies), agents “temporary” “subject had appointments than that are assigned [which] been “functions cease of this Court.” further orders purpose accomplished.” Id. at when the is then, question, narrows itself: Shall So, too, experiment 831. with the in Jeffer- give of effect to the act the Chief County son which is here examined. prompt “the as a means to address Justice reasoning A of of deci- large causes,” one disposition of an exercise of however, Craig, sion in involved fact that leg- express power “cooperation” with the “agents” temporary actors were mere unwillingness to present exercise islature’s full-fledged and not “officers” of the sover- assignment to alter the its ultimate Thus, eign. approved assign- this court jurisdiction among the courts? status, relatively might ment low “promptness” visi- The search for be assignment not had the have done otherwise levels, (a) ble at two both duty permanent a of a been officer. The itself, economy by experiment sought status, however, expressly ad- matter is (b) legislature can speed with which the by our constitution in this case. The dressed by at its ultimate conclusion the use arrive grant plainly Cir- Chief Justice is allowed experiment, opposed one-county a as Thus, Judge Judges. cuit to District status immediately generally applicable adopting a teaching Craig we left are proposal in statute or constitutional unchart- “temporary” appointments are involved ed waters. appointees’ where the “functions cease when making judgment a we “neces- Were “tempo- purpose accomplished.” is sity” attaining the constitu- of this method of rary” Judge appoint- nature FitzGerald own, propose I purpose tional on our would ment, measured, by parity reasoning, (a) factors, weigh several relative we by not he be expected whether can to live “predominance” “prompt- for the need large portion forever or for the of a Circuit experimen- ness” in the establishment term, eight-year certainly Judge’s not (b) relationship” be- program, tal the “close (as dissenting by opinion require) would sup- promptness tween and the other reasons pre-determined whether he for a num- serves dispute porting family reform and the one- days. Rather, temporary ber of his term is (c) test, availability county of other (under constitution) if section he goal of accomplishing methods for longer will serve when his service no three-part suggest- promptness. This test longer “necessary prompt disposition Clay by ed Commissioner Chrisman might a causes.” While different result be Lines, Ky., 249 S.W.2d Cumberland Coach required if disguised per some intention (1952), in context of the court’s 20-year implied by manence could be ten mixed-purpose determination of whether a order, by ure for the 1991 even hinted (a transportation system public endeavor years principal ten described the court’s entity) private constitutes a owned opinion,4 present appoint whether not context, “public purpose.” Even “temporary” at the ment is will answered never found it “troublesome” court has Judge time Fitz- same we determine whether goals are met an act that additional also appointment Gerald’s was made “for the far I can proper purpose. done for So prompt disposition This is not a of causes.” determine, an autho- no decision set aside separate question all. If the constitution other good simply rized deed because some constitution are to be sections simultaneously. performed good deeds were whole,” Edu read “as v. Board Wood Danville, making hand, here On the other we Ky., cation of determination, ac- (1967), certainly judging an appropriate to a de novo it is read this tested, believe, to be discussed below. 4. motive is to be I under standards Chief Justice (1974) (“such tion of dealing the Chief Justice. we Were find- here with deed of ing another constitutional adjudicative does not contain sufficient actor, it presumption permit entitled to the facts a court to conduct a meaning- having review”), proper purpose, is, all, acted among ful progeny after city legislative body McDonald, case of a exercising City Ky., Louisville v. 470 Moore, (“On power, City (1971): inherent v. Paducah 178-179 S.W.2d the other (1984) (“The Ky., App., hand, S.W.2d when the legislative body local is used City’s in doing they motive what did is not as a not generally applicable vehicle to make law, appeal except before the court on this policy, rules or but to decide whether a respect motive, particular to the ultimate result of the individual as a result of a factual a subterfuge creation of peculiar order to ac- situation is or his situation is not do.”), complish they relief, wanted or entitled to some form of then the so- legislature legislative state acting body itself upon under constitu- called act ... must constraints, tional Stephens, Ky., appropriate findings Holsclaw basis of v. of either the (1974) (“Nothing body, or S.W.2d commission which ”). suggests supported by record us attempt by before an substantial evidence ... Assembly pattern Absent the escape requir- fundamental fact or avoid consti- (that is, ing procedural process tutional due applicable city limitations and phrase county governments quotation underlined in this from Mc- expedient of call- Donald) held, always this court ing them has as in another name. If such were the Commonwealth, Hohnke case the act amount would to no more than a (1970): 162, 166 subterfuge and we would not hesitate to down.”) strike it regulation public Where rule or of a agency scope administrative within is dissenting opinion The dispute not does authority agency of such it is consid- presumption, argues oppo- that the prima facie, presumptively, ered valid presumption site po- exists when is there reasonable, and one and the who raises the tential govern- conflict between branches question pleading has the burden history “comity” ment. If “blend” proving showing invalidity facts of such however, anything, teaches us that is there or regulation. rule is no such presumptions, radical reversal of particularly where each exercising authority branch is No is cited to establish that such express power, and each proposed by a standard as dissenting “cooperation” seeks the opinion other. has ever applied been consti- exercising legislative- tutional actor and/or dissenting opinion’s proposed alterna- rule-making powers. Justice, Must Chief tive would require “clearly-stated and well- zoning determining like a board the use of an finding by founded” the Chief This Justice. property, individual’s hearing also hold a violated, says dissenting standard is opin- make a record? Certainly not. ion, because the Chief Justice “did not ex- plain” order, fully his action his Kentucky’s be- I believe it is not that material cause there insufficient “support expressly requires constitution that the Gen- upon record” which to Chief identify Jus- eral matter of finding. dissenting tice’s unmade opin- caption. statutes their No case or reason- proposes5 process ion thus some sort of ing suggest express pro- due is cited to that standard, developed those impliedly like this court requires vision even applicable only all, others to any findings to individual to make at much less “clear- adjudications. Ison, Nor, The case of ly-stated Caller and well-founded” ones. dissenting opinion principal 5. The language hints support that the does not the statement con- opinion agrees respect. in this I believe that the dissenting a few tained sentences later in the dissenting opinion distinguish fails to between opinion, says principal opinion which principal opinion’s statement that Chief "required" that there be some "basis in fact," opposed Justice’s act "must rooted in support finding. the record” to the Chief Justice’s opinion’s to that statement that the basis of the requirement The actual been satisfied. order "should be noted” on its face. latter speed- course, might nent have the effect of of the constitution solution does Further, find apply judiciary. ing through I domestic matters logic suggest County basis system, present was the budgetary and administrative ac- “routine dissenting experiment. The under tions” one sub-section Section (“My opinion point concedes as much not vastly a call for so different standard of promote courts do determination than under a sentence actions Perhaps they ‘prompt disposition of causes’. away appears an inch on the same do.”). page and section our constitution. also, think, I inaccurate to state that dissenting opinion’s proposed The error of evidently any- majority “[t]he concludes” requirement “clearly-stated and well- it “con- thing happened, much less has is, believe, I finding at founded” reflected determina- cluded” that the Chief Justice’s all, least two further matters. First of principal opin- tion “well-founded.” The was dissenting opinion hold that this court only says it ion of this court concludes go beyond particu- cannot record this the Chief it concludes: do not see where We case, only single a viewing papers lar filed in has exceeded his discretion. Justice litigated by parties lawsuit two without sub- resources, financial it stantial when deter- however, not, by need decide this case We whether or not Chief of the mines Justice only Penny Kuprion papers reference Kentucky Supreme Court has violated file Kuprion and chose to in the trial Robert would, however, equally constitution. It court, by full-fledged nor reference (and unhelpful) appropriate equally to note findings in the itself. of fact included order appel- ordinarily upon that the burden rests stringent appropriately An test for consider- lants to show in the facts to record sufficient ing intent has evidence Chief Justice’s See, support they e.g., claim. relief applied legislative been action in determin- Reichle, Ky., v. 442 Reichle 719 S.W.2d ing very it a constitu- whether meets narrow (1986). fact, In so record is this far exception. It is found in Tabler v. tional concerned, slightest there is not the hint that Wallace, Ky. S.W.2d 179 That Stephens Chief Justice did not determine in permits case of matters “from consideration faith, good nor indeed that he not deter- did title, legislative history, from the statute’s necessity correctly, mine is a there matter, preamble or or from other Judge Fitzgerald’s appointment to accom- authoritative source.” Id. 186. this plish “prompt determination of causes.” case, certainly those matters would include dissenting On opinion say what basis can the resolution, legislature’s concurrent its starkly that “the facts establish” what has budgets applicable and Task Force three happened County? Applying Jefferson report. integral parts “legisla- All are suggested by this part standard history tive” of the 1991 order.6 “sub- dissenting opinion, all that can be is that said (the ject dispo- prompt matter” this debate way knowing way we one have disputes) well known family sition of is tell, far as we other. So can the Chief court; this a view of most members of and Justice could have well determined speed resolving vastly criti- way increased expeditious develop proper most by eloquently cal problems and issues was described permanent solution to the asso- argu- cases, family-type perma- Kuprion’s counsel at the oral ciated with Robert report amplified merely summary. 6. The Task Force also recom- The Task Force the "Where- court, by by portions this the General as" of the Concurrent Resolution. It mended action Assembly findings, including itself. Two its four recommenda- listed ten the notion that frac- “(1) Kentucky That family-type leads to a tions were as follows: tionalization of Rule, establish, (a) delays, a Pilot of time and to in that it "in- Court waste biennium, Project with at expense for the 1990-92 creases cases,” time involved these (2) (b) delay and one rural location. That it creates “an inordinate least one urban fund such a and the between intake of case final resolu- including Project, implementation and Unhelpfully, dissenting opinion eval- tion.” re- Pilot government jects prin- summary did the correct uation.” Both branches contained court, cipal opinion simply this it of what the Task Force recommended. because is much Penny Kuprion’s ment of this case. long counsel well established that honorably Kuprion’s legislative government express conceded that Robert branch of can given public had effect description policy through counsel a reasonable its views Project require signa the effects resolutions which do not County, governor. Foley a view which ture Thus he did see Con Further, Ward, necessarily struction agreed Company Ky., share. he (1964) 392, 394 (“Originally, right (certainly some time to sue I believe to mea- joint the state was years) sured in obtained resolution required to work out the Legislature”); enacted Common program. details of such a McCoun, wealth 313 S.W.2d dissenting The second level at which the (1958) joint (“Although all resolutions are not opinion’s “clearly-stated and well-founded” laws, necessarily regarded or yet treated as asks standard too much is when insists present regard resolution character depart approach from the having law”); ed as of a the force and effect would take action in relation Miller, Rhoads v. rejecting powers, any reference to (1944) (“A provid Joint Resolution ongoing govern- views of branch ing postage, telephone, an allowance for sta supposedly infringed ment whose tionery, work, supplies stenographic and to upon. legislature’s The request initial for present each member of the General Assem study, request partic- further and its Lieutenant-Governor.”) bly, and the (both ipation by judiciary the included Similarly, which the cases debate the rela- resolution)7, legis- concurrent as well as the tionship budget between decisions and stat- funding lature’s recurrent Collins, utes, Armstrong Ky., Com. ex rel. v. Project are, course, entirely (1986), 709 437 S.W.2d Smith v. dispositive. Because of the cases ex- Commission, Racing Ky.App., State 697 clude branch participation one from in some (1985), 153 reflect the that S.W.2d fact bud- other, functions of irrespective the the (as geting opinion principal this court’s cooperate, body the desire of both to says) aptly ways in many the most dramatic involving judicial-legislative law interface legislature express means has to itself.8 teaches us to ask whether the Jefferson appropriate It is our therefore that deter- County Family pure sois and sacro- that 1991 mination the Chief Justice’s Order legislative sanct a judiciary concern that the good attempt awas faith his exercise costs, must withdraw from all it at as to so powers under 110 of Section the constitution presumption reverse the that the Chief Jus- prior judgment by framed to be reflect the good tice acted faith with accordance legislature subject. on that We are re- perfectly constitution’s standard. As is quired give judgment. deference phrased, so obvious when this is not (in Brown,) believe, therefore, matter. This is the words of I concurrent case where “normal function of Legislature, report one branch resolution of the another,” specifically granted Force, [has budgets, been] Task several bi-annual give legis- so we must some deference to and what the members have judgment, lative and consider that approach observed be a sensible to a participation ap- problem, was invited first and later serious mandate all our conclusion proved by legislature, by reasonably its Concurrent that the Chief acted Justice budgets. Resolution and good parameters successive faith within true, quite dissenting says, opinion dissenting quotation 7. It is opinion's as the 8. from Ex Auditor, 682, correctly places parte expand 609 at S.W.2d the concurrent resolution did not “only” word the supplied in brackets. That is word upon purposes project, for this much less the dissenting opinion, and not this “promptness” aspect of the matter. That came event, any parte court. discussing Ex Auditor is there later, reported after the Task had Force its multi- inability legislature to con- (and purpose goals, again year and after the first administration, way trol limiting in no years) after the second and third impact budgetary decisions on were undertaken. subjects appropriate action.

695 912, §§ citing Ky. 27 and Const. expressly granted to S.W.2d extremely recently 28. This Court has been him. provisions. vigilant upholding those See JJ., view, STUMBO, join interpreting in this SPAIN and id.: our “[I]t been 28, opinion. separation concurring Sections is fundamental Ken- doctrine TACHAU, Justice, Special DAVID system government tucky’s tripartite dissenting. ” (Citation ‘strictly construed.’ must greatly I admire the Chief Justice’s While Realtors, omitted.); Kentucky Inc. Ass’n of adjudica- progressive improve efforts Musselman, Ky., S.W.2d cases, “Family I tion Court” must Commonwealth, Ky., (1991); Diemer v. respectfully dissent. Here, Justice March 1991 Chief I. INTRODUCTION Court,” “Family to a assigned judges new deci As this Court stated in the landmark authorization, and without Legislative sion Research Commission ex gave mat- elements Brown, rel. Prather v. district and state ter of both (1984), quoting Immigration and Natu did not set Justice courts. Chief Chadha, 462 U.S. ralization Service special length of time these limit on 2764, 2784, 77 L.Ed.2d 317 S.Ct. have now judges would serve. Some them (1983): hydraulic pressure “The inherent years more and one-half served than three separate within each Branches ex sight. no end in power, outer limits of its even to ceed the objectives, accomplish desirable must re why explain also did not Chief Justice par is sisted.” The wisdom of these words appointments, much he these less made ticularly such as evident circumstances assignments “nec- whether he deemed these these, weighing actions when the Court is disposition essary prompt of causes.” for the by judiciary. taken Given that there is As- contrary, On when the General judiciary’s power no on other limitation “Family Feasi- sembly authorized Court system within the checks and balances of our in House Concurrent Res- bility Task Force” government, especially the Court must be hoped indicated olution power. to restrain its careful own exercise objec- Family might achieve two Court entirely prompt decision tives unrelated gives specifically Our state Constitution “continuity making: decision-mak- power the exclusive ing” involving multiple in situations determine matter issues, expertise in the “development Ky. the state’s district circuit courts. disposal family law 112(3) 113(3). management and cases §§ Const. ex- Ky.Acts judiciary.” by ception to this exclusive contained 110(5)(b) Constitution, Ch. HCR 30. pro- § of the assign vides that the Chief Justice “shall that majority’s opinion concludes temporarily any justice the Com- simply appointments are to be Chief Justice’s monwealth, retired, active or sit stan- an “abuse of discretion” reviewed under when he court other than the Court dard, at and under op., supra, assignment necessary deems for standard, appointments are deferential disposition ....” prompt causes as of a “a “constitutionally permissible” also ex- Our state Constitution “contains judi- ‘joint project’ of the temporary research hand, which, plicit provisions one Id., Assembly.” 685. I ciary and General separation among the branch- mandate three agree either conclusion. cannot with hand, government, es of and on the other First, appropriate adopt specifically prohibit incursion of one branch while standard toward government functions the “abuse of discretion” powers into Brown, supra, administrative actions the Chief Jus- LRC v. 664 routine the others.” tice judge.” points out, takes as “executive head of the appellant Court of As the Justice,” 110(5)(b), § Family Const. that defer- County Court in Jefferson is known ential completely standard of review is name, incon- separately and its divisions are separation sistent with powers the Court’s Family numbered as seven Court divisions jurisprudence. Applying the “abuse of dis- being rather than known numbered divi- squarely cretion” standard in this case con- sions of Jefferson Court or Circuit tradicts the “fundamental” doctrine that con- Many judges appoint- District Court. of the duct involving one constitutional actor ed changed, to the court have also with new possible govern- “incursion one branch of judges rotating off on and the court at fre- ment into the and functions of the quent intervals, while the continued existence “strictly others” must be construed.” LRC of the court constant. remains Brown, supra, 664 S.W.2d at 912. fact, Family In in Jefferson Second, applying even the “abuse of dis- clerk, County assignment has its own its own standard, cretion” support there is no numbers, and even its own seal. The actions, record for the Chief Justice’s and the operates special Court even under rules of majority’s ruling makes the restrictive lan- approved by July this Court on 110(5)(b) § guage meaningless. Indeed, 1993 that are distinct from other civil or majority’s decision made even more sum, agree criminal I rules. with the unnerving by suggestion its majority way temporary that “In can a “constitutionally permissible” be- court be created an order of the Chief “joint simply project.” cause it is research clearly Justice” —but happened know, So far I precedent there is no for here, regardless majority’s efforts to the contention Constitution can be “pilot call it a project.” mere “division” suspended project,” “research no mat- Likewise, contrary apparent views ter praiseworthy how its aims. concurring opinion, agree I also majority extraordinary that “Such II. THE CREATION OF THE action [“temporary appointments FAMILY COURT provide prompt disposition I completely agree starting point cause[s]”] must in fact be rooted and the majority’s analysis, Maj. op., see su- temporary appointment reason for the should pra, at 683: appointment.” be noted in the order But 110(5)(b) Section of the Constitution above, happened. this never As noted so far unbridled, does not confer absolute or un- know, as we the Chief Justice has never limited the in Chief Justice his explained any opinion, in act or in- official capacity as Chief Executive of the court Order, cluding why in his March he system. only tempo- refers Section appointments. made the rary appointments provide causefs], prompt disposition the Moreover, appointments if even the were pointed should out that the word “tem- promote “prompt disposition made to the porary” only appointment relates causes,” in the record for there is no basis way judge. the In can temporary no fact,” concluding that this was “rooted court be created an order of the Chief majority says required. Disregarding is extraordinary Justice. Such an action personal opinions argu- counsel at oral must fact be rooted in and the reason for ment, no simply there is evidence that the temporary appointment should be not- “temporary” appointments Chief Justice’s “in appointment. ed in the order of constitutionally fact” serve to promote objective prompt disposi- sanctioned “the However, agree majori- I cannot tion of causes.” ty’s apparent understanding of the record. with, begin starkly majority evidently To the facts establish concludes that the that what happened County appointments has Chief Justice’s were well- precisely promote “temporary prompt of a “the creation founded as efforts to appointment disposition court” rather “the than of causes” because of events that added): (emphasis supposedly preceded appointments. In “The concurrent resolu- requires majority explains particular, pilot tion which created Assembly ap- legislature.” funding periodically 1988 General authorized pointment of a task force examine Second, again regardless of what the 1989 establishing feasibility of need for and the concluded, important to it is also Task Force Court, subsequently: legislature, that neither the 1988 recognize report amplified The Task Force Assembly, has ever nor other General preamble concurrent resolution juris- establishing the amended the statutes by making it ten find- which established courts, circuit KRS diction of district and ings, including the that fractionaliza- idea 406.021; 24A.010; 24A.110-130; 23A.010; family jurisdiction leads to a waste tion of insignificant problem. 403.140. This is not an delays, that it increases the time See, jurisdiction e.g., 24A.020: “When KRS expense time and involved these eases granted over to District Court matter delay and creates an inordinate between statute, jurisdiction shall deemed final intake and resolution. specifically unless the statute be exclusive Maj. op., supra, at 681. jurisdiction shall be concur- states troubling explanation is for several This rent.” reasons. pass did the state Senate a bill First, regardless 1989 Task districts, have allowed concluded, recognize important Force it is Justice, upon approval to create Chief Assembly when 1988 General autho- jurisdictions family concurrent courts with Force, legislature rized the Task never courts. 1994 RS from district and circuit SB. adjudication delays in the of fami- mentioned died in the state 84. But this bill House ly problems sought disputes among the majority Representatives. says address, prompt making among nor decision consideration,” consequence “of in our might benefits that result from a Maj. supra, although op., I am not so Ky.Acts court. See 1988 Ch. HCR 30. least, legis- At the confirms that sure. Instead, was focused on the has exercised its exclusive con- lature never “overlap[ping] ... dispute matters of or cri- modify power to mat- stitutional families,” particular including sis within ter of the state’s district and concerning marriage, “matters dissolution of 112(3) §§ courts, Ky. circuit Const. maintenance, spousal support, adoption, child 113(3). parental rights, terminations establish- violence, ju- paternity, ment domestic hand, majority On the other seems venile offenses.” suggest that because the Thus, budget purpose approved its statement of recent Force, years special appropria- creating objecting the the Assem- Task General without Court, bly noted “the establishment of a court tions to the the particularly agreed of court to have the division devoted to should be considered juris- family might promote in circuit court specializing law modification in district and Maj. op., supra, continuity judicial decision-making See at 683. How- dictions. “judicial ever, development expertise in it is as well as foster well-established family provides by management disposal budget [only] ... a means which the law (em- Kentucky body may much it judiciary.” legislative cases Id. the assess how added). words, legisla- treasury,” and the phasis appropriate In other must from the explicitly Assembly en- has no substantive role implicitly ture has never General constitutionally “determining necessity pro- permitted for and dorsed the expenditures” bud- purpose priety for And from the Chief Justice’s actions. Accounts, Assembly get. parte Auditor Public certainly the 1988 General did not Ex (1980). 682, Moreover, any family Ky., authorize the actual creation courts, action despite majority’s oblique implied misunderstand- sort Maj. § ing contrary. 51 of the state op., See 686 would seem barred Constitution, requires My point which that “No law family is not that courts do not enacted promote “prompt disposition General shall relate of causes.” subject, Perhaps Instead, than they more one and that shall be my point do. is that expressed in Sweasy family title....” See no one told the Chief Justice that this, Daughters King’s Hospital, Ky., including courts would do Memorial the 1989 task report gave force. The task force other 815-16 rea- courts, for establishing family sons but none Third, turning “findings” pur- now the provides of them portedly made 1989 Task Force re- Chief Justice did. port, simply it is erroneous to state that the summarize, although agree To I with the report family found “that fractionalization of majority’s analyzing initial framework for jurisdiction leads to a waste of time and constitutionality ap- Chief Justice’s Instead, delays.” words those are blended pointments, agree majori- I cannot separate portions report. from two ty’s application of this framework the rec- page report On restated the General Instead, of this ord ease. I the ma- believe Assembly’s establishing “reasons jority’s decision on a rests of unfound- series Force,” Task overlapping and included that assumptions ed or inaccurate about the evi- jurisdictions “thereby caus[e] fraetionaliza- dence, assumptions and when these are cor- disruption tion and decision-mak- rected, majority uphold- has no basis for ing continuity.” Later, page report on ing appointments. the Chief Justice’s concluded that “use of domestic relations ... commissioners increases the time and III. SEPARATION OF expense (emphasis involved in these cases” POWERS ISSUES added). Otherwise, report found that Putting assumptions aside flawed un- in many “there exists courts an inordinate derlying majority’s decision, I also be- delay between intake a ease and final lieve Chief Justice’s actions cannot be resolution,” again report find did not upheld within the structure of this Court’s that creation of courts would assist jurisprudence separation powers. on This problem. §§ structure is based Const. provide: which Indeed, report pointed to several bene- government 27. The creating family fits of courts which—like the Commonwealth of shall divid- Assembly’s of purposes— statement into departments, ed three distinct nothing “prompt had to do with disposition of separate each them be confined to a These promoting expertise causes.” included body magistracy, to wit: Those which by judiciary addressing family disputes one; legislative, are which those are (“Family should be trained executive, another; those matters of mental health and sci- behavioral judicial, to another. families”); they reducing ences as relate to person persons, 28. No or collection of jurisdictions by overlapping district and cir- being departments, of one of those shall (“With family cuit courts matters tried any power properly belonging exercise courts, dupli- both district and circuit there is others, except either of the in the instances cation of effort and lack coordination” and expressly permit- hereinafter directed or helpful “It be extremely if same ted. judge relating heard all to matters the same family, juve- from support divorce to child to of provisions, Because these must we eval- matters”); nile addressing permissibility and other socio- of uate (“Citizens logical problems perceive appointments simply decisions terms of whether of importance district courts to of less pow- be a constitutional actor has his exercised than of perception discretion,” those circuit courts. This properly, ers or has “abused his against Instead, of mitigates majority ‘lesser status’ estab- as the contends. because of potentially powers lishment at court the district these actions invaded the level.”). by Kentucky assigned exclu- Constitution 28, duty sively Assembly, The to define should are the same. to we by “strictly general delegated construe” Chief Justice’s author- terms cannot be ity uphold his conduct if it survives to the executive branch. branch scrutiny. heightened Kentucky sepa- to the this is a strict adherent powers doctrine. we stated ration of As majority’s perfectly error is illustrated Garrett, Ky. 246 S.W. Sibert v. by comparing case to v. Com this Diemer (1922): (1990). monwealth, Ky., 786 S.W.2d 861 forming part of the There, “Perhaps no state challenge was with a the Court faced Kentucky Bill of the United provisions government of the 1976 national two signs language provision prohibited has a constitution whose board Act. One States separates perpet- “legible emphatically from a more that were identifiable” and/or might the Ameri- highway. interpreted federal The Court uates what be termed “sufficiently tripod government of than does provision to be definite with can form Constitution_” Kentucky] scrutiny” noting ... [the stand constitutional after responsibility is our to read the “[i]t Diemer, 786 at 864-65. S.W.2d of so as to statutes the General although illustrates that Diemer thus constitutionality save their whenever such might ordinari actor’s conduct can done consistent reason and com be ly accorded deference because of concerns be sense, although go mon cannot so far we comity government, between branches of give additional add words to constitutional legitimacy evaporates of presumption meaning ly permissible where none powers disputes involving separation of is Commonwealth, exist.” Diemer v. otherwise cases, In such a constitutional actor’s sues. supra, at 863-64. S.W.2d heightened scru instead is conduct comparable ap- This deferential those tiny construction of time- and “strict proach majority now takes to the Chief provisions” §§ 27 and 28 of Ken tested (“We actions, swpra, at 684 Justice’s see must Brown, tucky’s supra, Constitution. LRC pause to actions of consider status 914; Kentucky Real at Ass’n the Chief Justice. We find them to be acts Musselman, tors, Inc. discretion that not an abuse discretion.”). approach appro- This be course, just Of I assume that as the Court priate budgetary for routine and administra- legisla- heightened scrutiny imposed on actions taken the Chief Justice as tive powers separation of tive actions that raise Justice,” Ky. “executive head of the Court of concerns, impose so also Court would 110(5)(b). However, § approach Const. scrutiny executive heightened actions is erroneous where the Justice’s ac- Chief raising separation officers tions threaten proper to invade the exercise powers §§ 27 and 28 concerns. Const. powers by separate govern- branches suggestion the different contain ment, as Diemer further illustrates. treated government branches of should be accepting provision After the first any differently separation dis- Act, Billboard the Diemer court invalidated putes. provision of Act prohibiting the second Indeed, judiciary particularly should be signs certain “outside of an urban area.” power, vigilant its exercise of to restrain own “a term Court characterized this position final unique as the because its variety viewpoint depending upon infinite disputes. of constitutional unchecked arbiter id., it,” person applying Otherwise, course, judiciary if the fails improperly held that the had dele- itself, actors will restrain other constitutional gated defining task ad- term eventually unwilling submit to a differ- Secretary regulation ministrative courts to their ent standard and allow explained: Transportation. The Court conduct. requirements con- case, pow- present the Chief Justice’s principle separation In the stitutional assignments explicitly altered ers, Kentucky Constitution Sections Court subject jurisdiction you matter of certain ... If reasoning Jef- follow the of the Court courts, County Appeals, long ferson district and circuit de- allowable as as it is not it[’]s spite Assembly’s permanent.” Appellant, otherwise ex- Brief of at 18. clusive constitutional to determine demonstrates, appellant As the there are matter of all district problems vast with the idea that we can and circuit courts in the state. Const. suspend separation the Constitution’s clear 113(3). 112(3) view, §§ my In and seem- powers purposes pro- “research ingly majority’s well, view Chief Brown, ject.” supra, In LRC Justice was allowed to make these as- firmly rejected suggestion that constitu- signments clearly-stated and well- powers delegated tional reassigned, can be promoting “prompt founded intention of another, simply from one branch because (See Maj. disposition op., of causes.” supra, governmental might improve functions. extraordinary at 683: “Such action must exactly majority appears Yet that is what the in fact rooted and the reason for the Maj. op., to embrace here. See at 686: “The temporary appointment should be noted form, any, final if Court will appointment.”) the order But neither of legislation. need to That be detailed does these conditions was met. government not mean that one branch of addition, In the Chief was Justice also government cannot assist another branch of required assignments to make these for a in analyzing system methods to make term, finite or to finite address a amount of government including the administration litigation, in order for them to be considered matters more effective.” “temporary.” For practical purposes, all conclusion, In I would the decision reverse however, very here, opposite occurred requested below and issue the writ where Chief March Justice’s appellant. orderly Out concern for appointments Order stated that his “shall of cases that been administration have filed effect remain in until further order of this holding apply pro since I would Court.” spectively. Fischer v. Board See State most But the troublesome of the ma- Elections, Ky., 879 480-81 S.W.2d jority’s analysis attempts entire is that (1994); Education, Rose v. Council Better thorny separation resolve the Inc., (1989); see problems by declaring that the Chief Jus- Pipeline also Northern Co. v. Construction simply part acceptable tice’s actions are of an Co., 50, 88, 102 Line Pipe Marathon 458 U.S. “joint project” legislature. research with (1982) (de 2858, 2880, S.Ct. 73 L.Ed.2d 598 Maj. See op., Appeals 685: Court of “The Bankruptcy claring Court unconstitutional properly determined that the Jefferson Fam- applying holding prospectively stay ily temporary ‘joint is a re- ing judgment Congress until have “an project’ judiciary search and General opportunity bankruptcy to reconstitute the Assembly and is in a structured constitution- adopt adju courts or to other valid means of ally permissible manner.” impairing dication admin without the interim The casual tone this statement should laws”). bankruptcy istration of Jus misleading. majority not be What phrase, tice too often Frankfurter’s “Wisdom unprecedented sanctioning completely comes, reject ought never and so one truly alarming suspension of the Consti- merely it comes late.” Henslee v. because guise tution in temporary of a “research Bank, 595, 600, Union Planters 335 U.S. project.” (dissent (1949) 290, 293, S.Ct. 93 L.Ed. 259 appellant’s point ing opinion). criticism of this “[Wjhere seems to me well-founded. any power experiment is there

constitution basic foundations the three government? experi-

branches of Can we by eliminating

ment the state senate? How eliminating

about the office Governor? notes tenure could terminate at time. What presumptuous” be “somewhat in some of its fleeting could more than an appointment City Lexington determinations. v. Motel the discretion the Chief Justice? Inc., Developers, sense, temporary. all though, same life is (1971). say any judge Who can will serve out his dissenting opin- or her entire term? As the power of this court to declare acts of says, years ion three and one-half have legislature is unconstitutional enhanced passed Judge appoint- since FitzGerald’s legislature steps judicial when into a ment; yet Assembly and the has as General arena, express even if gives the constitution signs enacting “permanent” shown no power to legislature so to act. Thus in problems solution to the addressed Jonson, 538, 121 Ky. Willis v. S.W.2d 904 Assembly, by Task Force (1938), legislature where the acted as man project. Nor has the Gener- judicial dated the constitution to create any sign ending al shown Jeffer- districts, step this court took the unusual context, County’s experiment. son Out of duty that “it our declare is to examine the “temporary” the word could mean almost facts in order to determine whether anything nothing. support legis there was evidence to —or a new lative conclusion that district was nec The case most like this one in constitution- essary.” fact-finding Id. at 907. Such raw is O’Rear, Craig al format unwilling to be contrasted extreme (1923), case, incidentally, cited in S.W. 828 accept delegation ness of this court to of Brown, legislature3 purported in which the judgments political to make perform appoint “temporary agents” districts, legislature even when chooses establishing two schools for ele- functions judiciary districting judg to ask the make teachers, mentary school functions the Bond, Ky., Fawbush ments. S.W.2d legislators willing assign were not to exec- exercising portion utive “officers then, duty, our Id. A sovereignty examine this case in the state.” at 831. relationship Craig light the historic between of this court’s determination branches, noting lay act in the fact could so activity assembly actually ap- 3. We deal with case as an exercised the Brown, pointment. government, purposes branch of while in fact it As in these matters, legal Similarly, appropriate so to treat involved act of the Chief Justice. these case, Craig general leadership issues.

Case Details

Case Name: Kuprion v. Fitzgerald

Court Name: Kentucky Supreme Court

Date Published: Nov 28, 1994

Citation: 888 S.W.2d 679

Docket Number: 94-SC-334-MR

Court Abbreviation: Ky.