*1 Appellant, Seum Dana STEPHENSON
v.
Virginia L. L. and David WOODWARD
Williams, Capacities Presi in His Kentucky and
dent of the State Senate Representative Mem of all
Official Kentucky Ap
bers State Senate
pellees. Williams, Ca
David L. His Official
pacity as President the Senate Kentucky Ap
the Commonwealth
pellant,
v.
Virginia Dana L. Woodward Stephenson Appellees,
Seum
Virginia Appellant, L. Woodward David L.
Dana Seum
Williams, Capacities Presi His Kentucky State
dent Senate Mem Representative of All
Official Ap
bers of the State Senate
pellees. 2005-SC-0603-TG,
Nos. 2005-SC-
0604-TG, 2005-SC-0645-TG. Kentucky.
Supreme 22, 2005.
Dec.
As Jan. Modified *2 McSwain, Turner, Sturgill, L.
Douglas PLLC, Moloney, Pe- Lexington, Barker & Wattson, Paul, MN, ter S. St. Counsel *3 Curiae, Conference Amicus National Legislatures. State Park, Stoll, Royse, David T. Keenon & Huefner, F. LLP, Lexington, Co- Steven Curiae, lumbus, OH, for Amicus Counsel Legislative Exchange American Council. JOHNSTONE, Justice. Stephenson and Appellants, Dana Seum Williams, capacity L. his official David Senate, as State President judgment of the Franklin appeal from granting summary judgment Circuit Court Appellee, Virginia in- L. Wood- favor ward, determining Stephenson qualified to hold office State Senator for cross the 37th District. Woodward appeals portion of the Franklin Cir- judgment denying request cuit her injunction requiring the Senate issue an for the 37th seat her State Senator herein, For the reasons set forth District. part. part we and reverse affirm by the Though agreed upon parties, and its import nature of this matter public require detailed recitation L. history. Virginia procedural facts and (Woodward) and Dana Seum Woodward were candidates Stephenson (Stephenson) from the for Senator the office State District, County. 37th located Jefferson Milliman, Vish, H. James E. Donald Re- for was scheduled general The Jennings, & Grady becca Middleton Reut- day before 2004. The November Louisville, Dana linger, for Counsel Seum election, in the filed motion Woodward Stephenson. disqualify Ste- Jefferson Circuit Court motion, filed The phenson a candidate. Moore, Philip H. Jennifer Ann Gross- 118.176,alleged that Ste- pursuant to KRS man, Fernandez, Friedman, Grossman & residency re- phenson failed meet Louisville, Kohn, Virginia L. Counsel for 32 of quirement set forth Section Woodward. It filed at was Kentucky Constitution. Hatter, Frankfort, Em- Paul Harland C. of November four o’clock on the afternoon Salamanca, Counsel for on the motion Lexington, hearing manuel A 2004.1 3, 2004. for November David L. scheduled Williams. indicating Woodward that Ms. evidence It must that the record devoid be noted office, election was held on No- requested the State Senate to 2, 2004, vember and the names of seat In response both her. to the election con- test, and Stephenson appeared Woodward Woodward filed an action 22,772 the ballot. There were votes cast Franklin Court on December Circuit 21,750 Stephenson; injunc- votes were cast for sought declaratory 2004. She Woodward. against Stephenson, tive relief Senator Williams, and the State Board of Elections. The Jefferson Circuit Court held an evi- 21, 2004, On December Woodward further dentiary hearing day. the next Senator requested prohibited appeared by David Williams counsel at the *4 from pursuing the election contest in the hearing, intervening capacity in his A Special Senate. Franklin Circuit Court Kentucky Senate, President of the State motions, Judge considered both and on argue that jurisdiction. the court lacked December 21 ordered the State Board of disagreed, The court interpreting KRS certify Elections to the votes for Wood- authorizing judiciary 118.176 as to de- ward and to an issue election certificate pre-election cide challenges to candidates’ despite ongoing dispute. The court qualifications. The court further issued request enjoin also denied Woodward’s injunction temporary preventing the Jef- Stephenson from proceeding with the elec- County ferson Board of Elections from tion contest the Senate. On December certifying the results of disputed elec- 28, the State Board of complied Elections tion pending ruling a final on Woodward’s by unanimously certifying this order motion. Woodward as the winner for the 37th Dis- 22, 2004, On November after considering trict State Senate seat. evidence submitted at the hearing as well 30, 2004, On December Woodward as additional briefing by the parties, brought another motion in the Franklin Jefferson Circuit granted Court Wood- injunction Circuit for temporary Court ward’s motion. Concluding that Stephen- against Stephenson. sought She also an son had failed to six-year meet the resi- injunction against Senator Williams that dency requirement found in Section 32 of require would him to seat her as an active Constitution, the Kentucky the court ruled reject State Senator and to Stephenson’s that she was not a bona fide candidate. election contest. The court declined to Accordingly, court dissolved the tem- injunction issue either porary injunction pending due to mo- previously issued, and jurisdiction. tions to for lack dismiss ordered the Jefferson County Board of Elections not to count votes cast for Ste- Meanwhile, 1, 2005, January on Jeffer- phenson. Stephenson Neither nor Senator Judge son Circuit Stephen Ryan appealed Williams this order. administered the oath of office for State
Rather, 7, 2004, January on December Senator Woodward. On Stephen- son filed an again election contest in the Ken- Woodward recited oath tucky State Senate pursuant to KRS office for State Senate in the Chapter Stephenson 120. asserted that State newly Senate chambers with other jurisdic- thereafter, the Jefferson Circuit Court Immediately lacked elected Senators. tion to however, determine her Kelly Dan Senator moved to re-
purposefully withheld her motion or other- a bare inference from the circumstances of case; filing” wise effectuated a filing” "calculated late a "calculated late was nei- by dissenting opin- stated by proven Justice Scott in his ther Ms. admitted Woodward nor nothing ion. Such conclusion is more than her adversaries. accept- recognition Appeals. elec- This Court
fuse of the certificate of the Court on the tion Board Elections ed transfer of the motions and issued State 17, 2005, had that Woodward not received on opinion upholding basis March passed most raw The motion votes. injunction declining ad- temporary day, voice vote. same ran- the Senate dispute. dress merits of domly selected an Election Contest Board parties filed for sum- Both then motions Stephenson’s of nine members consider mary judgment in the Franklin Circuit still-pending election contest. opinion Court. The court issued its deliberations, the Following days of two Though that the concluding June Board issued re- Senate’s Election Contest judgment Circuit was Jefferson Court’s majority ports the full Senate. The Senate, Franklin binding on the signed by five of nine members report, ac- Court found that the Senate’s Circuit committee, determined that Ste- as a Senator seating tion phenson’s election contest was without 2 of the Ken- arbitrary under Section failed the six- merit because she to meet Accordingly, the court tucky Constitution. year residency requirement of the Ken- *5 for granted Woodward’s motion partially tucky majority report Constitution. The summary by declaring Stephen- judgment duly the further found Woodward to be constitutionally unqualified a candidate son certified and elected winner in the 37th to as a ineligible and therefore be seated 7, Nevertheless, January District. on However, the declined court Senator. 2005, major- to reject the Senate voted the require to that Sena- request Woodward’s ity report of its Election Contest'Board Senator, tor Williams seat Woodward minority report accepted and instead authority concluding court that the lacked the Board.2 filed three members of for such action. Stephen- minority report This found that to as a legally qualified son was be seated ap- Stephenson and Senator Williams thereafter, Shortly of member the Senate. Cir- of Franklin pealed judgment Stephenson as the State the Senate seated of This Appeals. cuit Court to the Court and the Senator from the 37th District on accepted of the case Court transfer of the the oath Clerk Senate administered 31, 2005, arguments heard August oral to of office her. 16, 2005. On parties on November appeal, gravamen Stephenson’s week, following January arguments is that this Williams’ Senator 2005, the Franklin Circuit Court issued a to this action. jurisdiction lacks hear Court injunction prohibiting Stephen- temporary argue that Appellants Both Section exercising son from the duties of Sen- the Gen- Kentucky grants Constitution denying Stephenson’s motion ate office and pow- ultimate Assembly exclusive and eral jurisdiction. On to dismiss for want mem- judge qualifications of its er to January 28, also denied court that They maintain Section bers. for relief injunctive motion Woodward’s permit does not Kentucky Constitution Subsequently, against Senator Williams. Assembly’s Williams, judiciary review the General his Stephenson and Senator Senate, pursuant to Section power exercise capacity official as President of and, therefore, Court the Franklin Circuit interlocutory relief with filed motions for va- to fill the special also election should held remaining 2. The member of the Board finding Stephenson un- report cancy. to be filed However, qualified. this member believed judge holding Assembly acted al erred the Senate arbitrarily pursuant seating Stephenson State its members Section 38 of Constitution, with two responds Kentucky Woodward which states Senator. First, arguments. Assembly central Woodward house the General “[e]ach maintains Section of the qualifications, shall elections Constitution authorizes this re- members, Court of its but a contest- returns for view the Senate’s exercise of ed shall be determined in reason, according For arbitrariness. this be directed KRS manner as shall law.” Woodward, judgment of the Frank- carry 120.215 120.195 and KRS out lin Circuit Court was correct. Further- command of Section and direct more, posits judgment Woodward procedures contesting for an election for Court, finding of the Jefferson Circuit Ste- position Assembly; in the General phenson unqualified to be an candidate judiciary statutes do not include the Senator, binding State on all parties Yet, again, process. neither this Court prevent being serves predicate juris- nor the below courts our as a seated State Senator. Chap- this matter diction to hear on KRS ter 120 38 of the Constitution. or Section Because we it is de conclude that Rather, the General has specifi- matter, terminative first address we cally upon conferred the courts the action Jefferson Court. Circuit adjudicate challenges questioning The Jefferson Circuit predicated qualifications оf candidates KRS through jurisdiction to hear motion on Woodward’s 118.176. *6 appeal, KRS 118.176. On dis parties pute the extent of authorized Furthermore, es contrary to that statute, by provides procedure a poused dissenting opinions, in the the dele remedy pre-election challenges to authority in gation of KRS 118.176 in no of a qualifications candidate. “The upon au way infringes the constitutional long courts this have Commonwealth judge General thority Assembly of the to that recognized judicial has no branch of its qualifications pursuant members power to pass validity inherent on Stephenson’s to Section Williams’ candidates, eligibility elections or the predicated arguments upon are the funda only has as given mentally belief that Stephenson flawed Assembly possessed or common General a member In a actually was of the Senate. through quo law a proceeding.” warranto that dis proceeds normal election without 468, v. Meagher, Noble 460 S.W.2d pute controversy, or no candidates are (Ky.1985) (construing prior version KRS longer after has candidates the election 118.176). But, has, the General occurred, the voters a designated as have fact, precisely done what it is authorized winner then becomes a who Senator-elect. by enacting to do KRS 118.176—it However, happening mere elec to delegated authority the courts the sole instantly tion does not transform this Sen qualifications if to of candidates a sitting ator-elect into member of challenge a is filed It prior to an election. Rather, a be only Senate. Senator-elect is to note important party that no this his or comes member Senate when challenged constitutionality action has day of “upon her term commences the first validity or of this statute. year elec January succeeding [the]
Nonetheless,
Ky.
proscrip
Senator
and Ste-
tion.”
Sec. 30.
Williams
Const.
This
invoke
an
phenson
authority
of the Gener-
tion exists for
obvious reason: so
interpretation
an
departing
policy
terms
Senator and
settled
avoid
engenders
not overlap.
Senator-elect do
a federal statute that
constitu
if
tional
issues
a reasonable alternative
Here, though, when the Jefferson Cir-
interpretation poses
ques
no constitutional
cuit
finding
Court rendered its order
858, 864,
2237,
tion.” 490 U.S.
109 S.Ct.
not a
Stephenson was
bona fide candidate
2241,
(1989).
We qualifications a candidate adjudication ing that constitutional not the principle validity strictly nec the election itself—are be avoided unless it is but the should e.g. Tay to essary Spec- inapplicable for a in case. this matter. See decision Beckham, Ky. 177 McLaughlin, tor v. the Su lor v. S.W. Motor Service (1900) stated, (in to inter preme the United States which the Court refused Court of Assembly’s “If root General constitu deeply there is one doctrine more fere with the authority tional to settle a contested elec any process ed than other of consti tion, adjudication, corrupt practices ought it is that we wherein fraud tutional Thus, the alleged). not on constitutionali were Jefferson Circuit pass questions granted jurisdiction, ty adjudication expressly had ... unless such is unavoid Court 152,154, Assembly pursuant KRS 101,105, by the able.” 323 65 S.Ct. General U.S. (1944). recently, 118.176, motion accept More Woodward’s L.Ed. contest, stated, U.S., an “It is our such action was not election Gomez the Court time, challenge jurisdiction but rather to a candidate’s then shifts to Assembly by appear on the ballot. General virtue of Section Constitution. Further- next We address two subordinate more, all polls had because closed and issues: whether authorized KRS 118.176 prior votes cast to the time of had been argu the Jefferson Circuit Court to hear order, Stephenson Jefferson Circuit Court day ments Woodward’s motion after posits Stephen- that the action was moot. election, it had general and whether judgment son therefore concludes that the grant relief to Woodward of the Jefferson Circuit Court is void. outset, injunction. form of an At primarily relies plain Woodward on the elec governing we reiterate statutes statute, language which does strictly tion procedures complied must be that a explicitly challenge state to the bona “compliance with because certain fides of a must be candidate commenced statutory steps jurisdictional require are adjudicated prior to the election. ments.” Noble at 460. Ritchie v. See also Furthermore, Woodward directs our atten- Mann, 500 (Ky.1973). S.W.2d 62 Subsec 118.176(4), tion to an KRS which sets forth tion 2 of KRS 118.176 sets forth certain expedited process appeal for motions time limitations for to chal filing a motion brought the statute: “[t]he under motion lenge a qualifications, candidate’s ... Appeals shall be heard the Court of pertinent part: reads except that motion must be- be made The bona fides of any candidate seek- (5) days fore or the court within five ing primary nomination or election in a entry of the after the order the Circuit general may questioned or argues Court.” lan- Woodward any qualified voter entitled vote guage clearly contemplates an appeal pro- for such candidate opposing may beyond cess that extend the election. by summary candidate con- proceedings Thus, argues that Woodward the Jefferson sisting of a motion the Circuit before properly juris- Circuit Court exercised its judicial circuit in which the diction its order is valid and becomes questioned candidate whose bona fides is absence of an binding appeal there- resides. An regarding action the bona from. fides seeking candidate nomination or election in a primary or elec- general turn to the proper interpre We
tion
time
commenced
ago
tation of
118.176. “It
long
KRS
prior
The mo-
election.
interpretation
settled that the
of statutes
shall
tion
be tried
and with-
summarily
*8
judicial
ais
function.” Masonic
proper
delay.
out
Orphans Home
Widows and
and Infirma
Louisville,
argues
532,
that
Jefferson
ry
City
Ky.
v.
309
217
(1948).
jurisdiction
815,
construing
Circuit Court lacked
to hear S.W.2d
822
When
and,
statutes,
motion
disqualify
duly
Woodward’s
to
her
it is
enacted
“the seminal
consequently,
jurisdiction
enjoin
lacked
to
...
duty of a
to effectuate
intent
court
County
Elections
v.
legislature.”
Jefferson
Board of
of the
Commonwealth
Plowman,
47, 49
counting
(Ky.2002).
from
votes cast for her. Accord-
S.W.3d
86
See
ing
Stephenson,
grants
to
v. Bd.
Educ.
Wesley
KRS 118.176
also
Nicholas
(the
authority
28,
to a
pre-
(Ky.1966)
circuit court to consider
29
County, 403 S.W.2d
challenges only up
statutory
election
until the time
touchstone” of
“fundamental
con
election,
jurisdiction
of the
that
“the will or intent
legis
struction is
of the
lature”).
evaporates
polls
logical
once the
At
most
opened.
have
and effective
by
hearing
to
intent
manner
which
determine the
Court did not hold a
on the motion
legislature
simply
analyze
of the
is
until
or render
after the No-
its decision
language:
plain meaning
statutory
general
urges
vember
election. She
words,
must be had first to the
jurisdiction
“[r]esort
of the circuit courts to
are
if
are clear.”
they
decisive
extinguish-
consider
118.176
KRS
motions
Wallbaum,
Gateway
v.
Constr. Co.
356 es,
evaporates,
open
or
when the
polls
247,
(Ky.1962).
“[Statutes
S.W.2d
Implicit
the election has commenced.
given
interpretation
must be
their literal
argument
is the concession that the
they
ambiguous
if
unless
are
jurisdic-
Circuit
did
Jefferson
have
statutory
ambiguous,
are
no
words
not
tion when
motion was filed.
Woodward’s
required.”
at 49.
construction is
Plowman
existing at
Jurisdiction turns on the facts
normal,
lend
of a
their
We
words
statute
the time the action
commenced.
ordinary, everyday meaning. Id.
Louisville,
Ry.
N.A & C.
Co. v. Louisville
Co.,
552,
817,
Trust
174 U.S.
19 S.Ct.
provides that an ac
KRS 118.176
(1899).
general
mences. “A civil action commenced language tion is at variance with filing complaint of a with the court and Stephenson’s interpreta statute. Under warning the issuance of a summons or tion, simply filing prior an action faith.” It good order thereon in CR 3.01. the issue because election insufficient is uncontested that Woodward commenced non-justiciable moot and once becomes her action the Jefferson Circuit Court words, held. other been *9 3.01, fulfilled the as defined CR re that 118.176 Stephenson argues KRS 118.176, requirement of KRS as she time action be commenced quires the filed her before the com motion election This to the adjudicated prior election. following day. the menced however, is in direct contra interpretation, language atten of the stat Stephenson plain directs our the vention must ute, action tion to fact that Jefferson Circuit states prior be commenced ignores the election. It unambiguous the clear and lan- require does not guage the action must of the statute. When a circuit court adjudicated commenced and prior to determined that a candidate not a 118.176(4) candidate, bona election. We decline fide man- the invitation to at- KRS dates that court “certify tach must the fact additional words or meaning to an elections, to the board of and the candi- otherwise clear unambiguous statute. date’s name shall be stricken from the “We are not at liberty to add or subtract designation written of election officers from enactment or discover filed with the board of elections or the meaning reasonably not ascertainable from may court recognition or in a the language used.” Commonwealth v. refuse relief mandatory injunctive or way.” (Empha- Harrelson, (Ky.2000). S.W.3d added). sis agree Stephenson’s We may Nor we a interpret statute at vari- common sense conclusion that striking ance with its stated language. There nois candidate’s name from pre- the ballot is a language KRS 118.176 from which to However, remedy. cannot we deduce that the General Assembly intend- conclude that language precludes this any ed adjudicated these actions be prior to post-election remedy. To contrary, by opening fact, polls. the sole employing phrase may “or the court reference to the circuit court’s time limita- recognition refuse in mandatory or relief tions is requirement that the motion be injunctive way,” legislature explicit- summarily “tried delay.” without ly authorizes additional forms of relief. Reading provision in concert with the To adopt Stephenson’s reasoning would expedited appeal process set forth in sub- render portion the last of the sentence section 4 of the statute makes it clear that utterly meaningless. plain The unam- legislature considered the exigency of biguous language permits of the statute KRS 118.176 motions. public’s inter- circuit court to precisely do what the Jef- est in expeditious resolution of election did, fact, ferson By Circuit Court do. challenges However, is axiomatic. leg- enjoining the County Jefferson Board of islature specifically provided that the mo- Elections from counting votes cast for Ste- tion be considered delay; without it did phenson, the court recognition refused not state that the adjudi- motion must be as a candidate means prior cated to the election. Principles of injunction, expressly which is authorized statutory interpretation single lead to a by the statute. if legislature conclusion: had intended Finally, we note that Stephenson’s theo- pursuant actions to KRS 118.176 be ry jurisdiction” of “evaporating would lead both adjudicated commenced and prior to results, surely to curious intended election, it would have so stat- Assembly. the General Both Stephenson ed in definitive terms. and Williams concede that KRS 118.176
Additionally, that, Stephenson argues may brought any actions prior time because provide the statute does not for a election; unequivocally this is stated remedy post-election, legislature did However, statute. if a court ac- not intend for the courts to further consid- cept these prior actions time er such actions after the election had been election, loses once the held, they even if had been commenced polls open, nothing prevent there is prior to Again, the election. this assertion recalcitrant judge simply refusing
adjudicate only primary motion.3 until the of the up 118.176 The time elec- KRS might simply court let the motion sit until Meagher, tion. See Noble v. 686 S.W.2d jurisdic- day, point after election part, in (Ky.1985) (holding, evaporate. tion would are confident We post-1984 requires version KRS 118.176 that the not intend Assembly General did challenges qualifications of a to result, such but instead intended pri- must made before the candidate to judiciary adjudicate of mary in compliance election with the strict if, circumstances, in rare candidates —even statute). wording of the The As- General adjudication actually occurs several in sembly again considered the statute days after the election has occurred. Fur- response Legate 2001 in the case v. thermore, in no interpretation way Stone.5 encourages filings” the “calculated late There, Legate and Stone were candi- feared Justice Scott. If Madisonville, councilperson dates for fact, does, adjudicate matter contin- running Kentucky. Though pri- in the election, beyond ue then candidates candidate, it mary as a Democrat election no to file actions later have incentive their day primary on the of the discovered Rather, it rather than sooner. inures to was, fact, Legate regis- election that disqualify adversary an as their benefit to Republican. Legate received tered time, early possiblе, saving effort election. After the most raw votes in the expense campaigning of additional election, challenge filed a primary Stone who could against unqualified candidate Le- pursuant disqualify to KRS 118.176 lawfully never take office. in his gate, court ruled circuit language Because the of the stat however, Appeals, The Court of favor. clear, abundantly not ute is we need resort the ac- to dismiss reversed directions interpretation. to extrinsic aids to its tion, motions concluding 118.176 that KRS Nonetheless, legislative history en primary are untime- filed after the lightening strengthen and serves discretionary re- ly. This Court denied conclusion, foregoing our this rea view. it.4 son we reference KRS 118.176 next session legislative At the but existed several forms since statute amended the in 2001. Prior General recently was amended most qualifi- version, challenges to a candidate’s 118.176 allow KRS allowed The of a until election. challenges up to the bona fides candidate cations presented but not tionally changed. occurred Bills 3. This not the situation that bearing. spo- passed may Jefferson Court. While the court did Circuit have Words some motion, hearing postpone Woodward's may at to determine debate be looked ken in hardly delay can of less than hours legislature.” Court Fiscal intent scenario,” char- considered a "worst case Louisville, County City Jefferson acterized Justice Roach. (Ky.1977). S.W.2d statutes, interpretation "In the the func- 4. Appeals in this opinion The tion of this or court is to construe the publication. It designated for was not matter language give so as to effect to intent of number, 2000- by its case may be referenced legislature. There is no invariable rule case is We note also that this CA-01724-1. discovery The for the of that intention. actual prohibited CR authority, as cited as important often words used are but insuffi- 76.28(4)(c), acknowledge simply rather legislative report commit- cient. impetus revision for the 2001 may give drafts tees some clue. Prior meaning was KRS 118.176. where inten- statute show *11 proposed general stated of the to purpose prior amend- election. That she challenges ment was to allow until the filed the up disqualify Stephenson motion to election, the general specifically time of to is of polls opened hours before abso- prevent ultimately lutely the situation that oc- no her consequence; action was v. Legate curred Stone.6 The to the and prior Journal commenced election satis- Representatives the House of indicates fies this simple requirement the statute. Furthermore, that an initial version of the amendment because Woodward’s motion proposed an “action regarding complied filing requirements with the any seeking statute, bona fides of candidate nomi- the Jefferson Circuit Court a primary general jurisdiction adjudicate nation or election in or had to the matter may grant injunc- be commenced either before in the form of relief 7 tion, primary general or after the and that continued ex- election.” to course, ultimately enacted, ist The version even after the election had occurred. no to to simply “any party allows KRS 118.176 actions Because this action chose election,” appeal time prior general to the effec- order Jefferson Circuit Court, it tively binding par- is valid and subsеquent to on the prohibiting motions Though ties. for general substantively different election. Comments made reasons, portion we affirm that Representatives during a session of the judgment declaring Franklin Circuit Court Elections, House on Committee Constitu- Stephenson constitutionally is not Intergovernmen- tional Amendments and qualified for the office of State Senator tal Affairs indicate that this alteration was may not seated. because, election, made after an “candi- dates” longer are no “candidates” and We must also consider Wood subject therefore are not of KRS cross-appeal argues ward’s which she 118.176 history, actions. From this we that the Franklin Circuit erred believe that unquestionable it is that the declining compel Senator Williams General amended KRS 118.176 seat her as the Senator for the 37th Dis in 2001 singular goal: effectuate long recog trict. courts have allow challenges to a qualifica- candidate’s principle nized the cast for an votes primary tions after the election and unqualified candidate are not prior general time to the election. fact, did, themselves void.
Finding no ambiguity in the lan- plain receive the most votes in election. guage statute, However, holding is our fact that been dis she has permits KRS 118.176 a circuit court to qualified does not render Woodward adjudicate consider and challenges nor grant right winner her to the office. Rather, candidate’s bona fides that are disqualification commenced the effect of the prior election. There subsequent are a candidate to the election is placed no limitations movant as that no election has occurred and the true how far legitimate advance the election the will of people commenced, Mills, action yet nor are expressed. there been See Woods placed limitations on the (Ky.1974) (declining circuit court con- 503 de S.W.2d 706 cerning adjudication. time limitations appellant clare the the winner in an elec Here, appellee, Woodward commenced her action tion in which the who won the (2001). Hearing Ky.HJ. Reg. 6. on HB 85 State the Sen. Sess. Before Comm., Reg. (Ky. Local Gov’t. Sess. 2001).
174
Instead,
protracted nature of
the
votes,
disqualified).
later
See
tled.
most
was
litigation provided
Hill,
732,
widely publicized
this
Bogie
Ky.
also
v.
S.W.2d
Barker,
(1941);
Ky.
ground
to rise and ar-
McKinney
fertile
for tensions
(1918).
guments to become more heated between
We therefore
S.W. 303
single
is
the
The result
that a
parties.
of the Franklin Circuit
portion
affirm
challenge
qualifications of a candi-
re-
judgment denying Woodward’s
Court
perceived
into
has
to seat her.
date
mushroomed
quest
compel
the Senate
magnitude be-
clash of a constitutional
respectful of the
deeply
is
This Court
judiciary.
and the
legislature
tween
very fundamental
process and its
electoral
constitutional confrontation between
democra-
functioning
of
true
role in
Kentucky’s govern-
of
separate branches
to those
equally sympathetic
cy. We are
has not
was
some
predicted
ment which
in the election herein
who voted
citizens
arisen.
However,
ignore
we cannot
disputed.
may only
legiti-
considered
an election
might find it “mind-
Justice Roach
While
gov-
statutory procedures
mate when
“outrageous”
that we have
boggling”
erning
process
are followed
consti-
prеsented,
herein
decided the issues
respected.
tutional mandates are
When
outrageous for this
would be even more
constitutionally unquali-
candidate who
duty
its Constitutional
abandon
presents
fied
office nonetheless
to take
Marbury v. Madi-
is.”
“say what
law
him
qualified
as a
candidate
or herself
(1 Cranch) 137,
son,
For foregoing judgment dred years. Only the words Chief Jus- Circuit Franklin Court is affirmed in adequate tice are exposi- Marshall as an part in part. and reversed tion organic principle: of this *13 emphatically province duty It and LAMBERT, C.J.; GRAVES judicial department say what WINTERSHEIMER, JJ., concur. who apply the law is. Those the rule to LAMBERT, C.J., cases, files separate particular necessity must of ex- concurring J., opinion, GRAVES, which pound If interpret that rule. two joins. other, laws conflict with each the courts must operation decide on the COOPER, J., in part concurs very each.... This is essence of part, by separate dissents opinion. judicial duty.3 ROACH, J., by separate dissents Supreme Kentucky Court of is the J., opinion, SCOTT, with joining. final arbiter of constitutional
SCOTT, J., by separate dissents opinion. law.4
LAMBERT, Concurring Chief Justice.
“judicial
We have
our
duty”
now done
duty
go
and the
pro-
forward
My colleagues,
Johnstone,
Justice
Jus-
government
upon
cess of
others. Re-
Cooper,
Scott,
tice
Justice
and Justice
sponsible
reject any
officials will
notion of
Roach, have each written an opinion in this
against
judicia-
defiance or retaliation
doubt,
case.
all
opin-
Without
of their
ry, for
action
upon
would
an attack
ions
the product
superb
are
scholarship,
Judges,
legisla-
Constitution itself.
deep respect for
principles,
constitutional
tors,
governors
go,
come and
but the
personal integrity
in the decision-mak-
Constitution remains.
Public officials
end,
ing process.
5-2,
by
In the
a vote of
must honor conclusive constitutional inter-
this Court has determined that
deci-
pretation regardless
depth
of their
sion of the Franklin Circuit
denying
Court
disagreement
decision,
particular
with a
Dana Seum
seat in the Ken-
for anything
fundamentally
else would
al-
tucky Senate should be affirmed. While
ter
govern-
the constitutional allocation of
disagree
outcome,
some will
with the
there
mental responsibility.
should be no
every
doubt that
relevant
argument honestly
been
considered
Most
will
Kentuckians
not understand
beings
seven fallible human
who sit
concepts
esoteric
herein debated in
Supreme
of Kentucky
Justiciability,
Court’s
textu-
opinions.
A guiding principle
commitment,
decisis,
of American law was
al
and other
stare
given
great
to us
“the
legal
Chief Justice”1
art
be generally
terms of
will not
understood,
Marbury
John Marshall in
v.
persons
Madison.2
with even casual
During
infancy
nation,
of this
in public
Chief
interest
affairs will understand
Justice
set
Marshall
us on a
from that
course
the rule of law must be
Our
observed.
political body
no
institution has
national
compels
tradition
such observance
seriously
for more
deviated
than two hun-
even
legal
in the most
divisive
contro-
Motel, Inc. U.S.,
1. Heart Atlanta
379 U.S.
3.
Id. at 177.
241, 254,
S.Ct.
versies.
upon
election”
author-
yielded
“prior
a deter-
of the United States
118.176(2).
by KRS
As noted in the
Supreme
Court that the
ized
mination
recordings
presidential majority opinion,
tape
Office
the intervention
Oval
judgment
had to be surrendered
election before
did
divest
conversations
jurisdiction
full
knowledge
With
Circuit Court
special prosecutor.5
Jefferson
likely
tape recordings
though
would
lead
that court could not have
that such
even
sur-
his
President Nixon
had the action been
impeachment,
acquired
recently,
tapes. More
de-
That
rendered the
after
election.
commenced
*14
Supreme
22, 2004,
held view that
spite widely
not
court’s order of November
had exceeded
constitutionally
of the United States
Stephenson
only declared
halting
recounting
Senator,
jurisdiction in
for
office of
State
unqualified
Florida,
assuring the election
thus
votes
of Elections not
also ordered the Board
Bush,6
Gore,
President
Vice
President
Stephenson.
cast for
to count
votes
opinion,
5-4
respect
out of
for the Court’s
final and
aspects
Both
of the order became
the election.
conceded
binding
upon
expiration
parties
appeal.
of the time for
been,
controversy has
As divisive as this
process has
legal and constitutional
by
tally published
The initial
the State
honored.
been
(and accurately
Elections
de-
Board of
“unofficial”)
by
Board as
re-
scribed
GRAVES, J.,
concurring
joins this
22,772
ported
Stephenson received
opinion.
21,750. However,
and Woodward
votes
COOPER, Justice, Concurring in Part
of Election
and Record
“Official Count
in Part.
Dissenting
and
to the Sec-
certified
subsequently
Totals”
insofar
majоrity opinion
County
I concur in the
by the Jefferson
retary
State
unappealed
judg-
final
as it holds that
21,750 votes
reported
Board of Elections
ment of the Jefferson Circuit Court declar-
report any
for Woodward
did not
ing
constitutionally unqualified
Stephenson
accurately
Stephenson
votes for
—instead
the office of State Senator for the
hold
reporting that votes cast for her were
of the issue.
District
is conclusive
37th
Thus,
“suppressed by Court Order.”
reason,
However,
I
same
conclude
con-
the State Board
Elections
when
Court erred
the Franklin Circuit
pursuant
official count
KRS
ducted its
the winner of the
declaring
Woodward
118.425(4),it
before it all of the votes
had
(if necessary) that
ordering
for a
that were cast
37th District
from the
for the
as the State Senator
seated
she be
ie.,
candidate,
the votes cast for
bona fide
Therefore,
respectfully
I
District.
37th
won
facto,
Ipso
Woodward
Woodward.
-
insofar
majority opinion
dissent
21,750
The
0.
a vote
the election
Court’s
the Franklin Circuit
as it affirms
certified that
Elections has
Board of
State
the full relief
grant
Woodward
refusal
number
highest
“received
Woodward
she is entitled.
to which
office, as certified to
given for that
of votes
State,
is, therefore,
Secretary of
ju-
acquired
The
Circuit Court
Jefferson
regularly
term
duly
elected for the
Stephenson’s
bona
risdiction
determine
Upon
Constitution.”
prescribed
for the State Senate
a candidate
fides as
525,
98,
Gore,
3090,
683,
S.Ct.
Nixon,
531 U.S.
121
Bush v.
94 S.Ct.
418 U.S.
5. U.S. v.
(2000).
(1974).
388
148 L.Ed.2d
Although Section 39 of the Kentucky
Supreme
The U.S.
Court was not re-
permits
Constitution
a
House
the Gen- quired in Powell to determine whether the
Assembly
eral
to expel
by
a member
a
judicial power
inherent
of mandamus
concurrence of two-thirds of its member- would be appropriate
to force
ship,
here,
that did not occur
as
orders,
there was
compliance with court
because the
no vote count on the motion to exclude only
sought by
relief
Powell was a declara-
(Nor
(expel?) Woodward.
would it
517,
seem tion
rights.
at
U.S.
at
S.Ct.
that Section 2 of our
However,
Constitution would 1962.
in Noble v. Union River
allow
Co.,
even two-thirds of the
of a
members
Logging Railroad
147 U.S.
expel duly
House to
qualified
elected and
(1893),
S.Ct.
mus he refused him to do.... plainly required judging joined with power law Were liberty duty, requiring life and plain, legislative, official [W]hen discretion, arbitrary subject exposed to per- would be no be exercise judge then refused, control for the would formed, any performance is legislator. personal injury person will sustain who may a mandamus (J. Madison) refusal have such 47, at 376 The Federalist No. 1869) when compel performance; (J. (quoting Montes- Hamilton ed. violated duty is threatened quieu). act, any positive person official some persons, being person No or collection injury thereby, personal will who sustain departments, shall exer- of one those cannot compensation adequate belonging to properly cise law, injunction others, be had at have except in in- either prevent it. expressly directed stances hereinafter permitted. (citation Id. at S.Ct. § 28. Kentucky Constitution omitted). quotation of the General Each House no constitu State Senate has Since the elec- qualifications, shall mem authority from its tional to exclude members, of its tions returns person has been certified bership who shall be determined contested election pos *16 membership and who duly elected by law. as shall be directed such manner qualifications for the constitutional sesses § Kentucky Constitution office, injunction prevent could issue whether not concern This case does membership person’s exclusion of is a resident Dana Seum violating separation of without the doctrine as the Sen- Kentucky or serve who should Floyd County v. powers. Akers of Cf. Instead, it from the 37th District. ator Ct., (Ky.1977) 149 Fiscal S.W.2d of issue whether presents (“Injunctive law are available processes of As- General courts interfere challenging an action to be invoked elections, sembly’s power to decide act and of constitutionality aof returns, of its members and pro of its carrying out or enforcement Consti- 38 of under Section visions.”); compare Geveden v. Common words and historical plain tution. The wealth, (Ky.App.2004) 142 S.W.3d are clear: The of meaning Section (doctrine separation powers preclud right have no Commonwealth courts of this injunction require Gover ed issuance of a house a decision to interfere with act). discretionary perform purely nor to Assembly concerning qual- the General confident, however, that the State I am ifications, elections, returns of a final to follow would not refuse Senate ig- opinion majority Since members. an issue that the of this decision Court thereby violating the precept, nores this specifically delegated Assembly General years Kentucky Constitution 118.176(2). by enacting KRS judiciary dissent. respectfully I precedent, Court’s majority court was faced with predecessor I from the Accordingly, dissent Our Beckham, 108 Taylor question denies Woodward similar opinion insofar (1900), i.e., the seat- entitled, over Ky. she S.W. full to which relief the lieutenant governor qualified ing of duly elected and declared the of 1899. the election following governor District. for the 37th State Senator courageously supposed refused to over- Goebel was to have absolute con ride the constitutionally require- mandated trol. Id. at 440.* One week before inau separation Ky. ment of of powers, Const. guration day, the board declared a 2-1 27, 28, §§ thereby allowed the General Taylor vote that had defeated Goebel Assembly powers to exercise the expressly 2,000 over votes. Id. The election of 1899 delegated to it. particularly What is note- over, Taylor inaugu seemed was worthy is that the Court chose to defer to However, rated. a Goebel Democrat filed Assembly’s General even decision protest Assembly, with the General al though underlying giving facts rise to leging Taylor had benefited from the controversy simply outrageous. were “corrupt use of funds.” Id. The General A brief understanding those facts is committee, Assembly joint selected a do truly important signifi- understand the Democrats, minated to address the Taylor cance of v. Beckham. 30, 1900, January claims. On while the The 1899 election governor pitted committee still deliberating, was Goebel General, Republican Attorney William was shot as he approaching Capi Taylor, Senator, against S. Democrat State tol building. Dr. William Goebel. Clark described the Taylor Governor declared the Common- began ferment Day Election wealth in a state of insurrection and or- ended: Assembly dered the General to meet cast, When the ballots people were London. The state militia refused to allow calmly waited for the announcement of the General members into the the results. First in- unofficial returns Capitol building. at 441. Id. The “Demo- dicated that Taylor Goebel and in a were legislators cratic recognize refused to neck-and-neck race for the election. ” [Taylor’s] legality .... actions Lowell The final gave official count Taylor a Klotter, H. Harrison and James A C. Neio majority, and signal this was the for the (1997) History Kentucky 272 [hereinaf- Democrats to start challenging votes. *17 Klotter, ter Harrison and A New Histo- It Bradley’s was claimed that Governor ry They subsequently ]. a met secret at troops prevented had an honest election Frankfort, where, hotel in without a Re- all, Louisville. outrageous Most of publican legislator present, “they accepted however, was the fact political the contest report regarding committee’s
chicanery or “oversight,” of many votes election, disputed enough threw out Republican eastern regis- counties were results, votes to reverse the and on Janu- ballots, which, upon tered “tissue paper” 31, 1900, ary claimed, governor.” declared it was Goebel printed legal were not Id. weight paper. a Historian James Klotter has charge, piece This fine described Kentucky political of chicanery, meeting was even more sinister lan- trumped up to out the guage: throw election. Clark, History Kentucky D. A
Thomas Determined Democrats denied that of (1988). any state of insurrection existed. The point only danger At that the matter came Republicans, was turned board, over to state they election over which adopt insisted. To the committee ed, activities, *This election board had been created in 1898 aas reward for his with the part a of the Goebel Election Law. Thomas selection of the first state board of election.” Clark, (1988). History Kentucky D. A paper leg- Id. One Democratic denounced the virtually Kentucky "piece "Senator Goebel had the islation as a machination.” Goebel power, electorate in his since he was entrust- Id. joint report required session, yet a no have right supervise We no more public building large enough could decision General in de- obtained because soldiers. But termining the result governor Goebel must be declared we supervise than have to the action of Taylor must ousted. calling special the Governor in session pri- Later in the afternoon word came the legislature, pardoning or in of criminal, vately to each Democratic legislature member action or the Capitol debts, in the Hotel evening. meet or contracting determining The them members, instructions asked to assemble upon the election separately, groups, not in and then doing other act authorized by one to a room. come one second floor Constitution. A present at the time legislator recalled (emphasis Id. at at 181 add- S.W. how at the lights meeting “the were ed). proceedings dimmed and the carried in a Taylor The v. decision Beckham has quorum low tone of A nine- voice.” Yet, years. today, stood for over 100 with- fifty-three teen senate Democrats and discussion, out citation or it has been bur- pres- from the was house announced as 28, 38, along ied and 43 of Sections ent, though attending those were not Kentucky. the Constitution of I Because group certain numbers. The then believe Beckham Taylor and our joint report, heard the committee funeral, a decent I Constitution deserve unanimously, adopted it and declared eulogy. offer this rightful governor.
William Goebel the thirty-six It had less than hours been Principles I. Jurisdiction —First he was shot. since with, begin To I do not believe this case Klotter, James C. William Goebel: should even be before Court. In Janu- (1977). Politics Wrath ary Franklin Circuit Court is- in as governor Goebel was sworn injunction against sued temporary Ste- days died later. His gov- a few lieutenant phenson. interlocutory relief A motion ernor, Beckhаm, J.C.W. then took the promptly Ap- filed with Court of Klotter, reins. Harrison and A New His- peals, and the motion to we transferred tory appeared then to have our own In March docket. rather competing governments, two and the mat- than reaching the merits of controver- Though ter went to the courts. the result- sy, Opinion short Court issued *18 Beckham, case, ing Taylor Ky. Order, injunction temporary the upholding (1900), will be at discussed S.W. grounds on trial court had not the length below, I note that our predecessor Keller, abused its Justice discretion. faithfully of court followed the Constitution Scott, by joined vigorous filed Justice Kentucky and allowed the General Assem- majori- the argued dissent he stand, bly’s it had though decision to even ty to the more fundamental failed answer been made in secret and without the bene- court, question of the circuit in- whether fit of of the attendance member court, jurisdiction any Kentucky deed had was, minority party, by the all ac- by pass to raised the issues the liti- counts, complete defiance of facts. the reasoned, gants. I Keller think Justice Ultimately, Court’s refusal inter- the to so, persuasively that because Section 38 of the vene allowed the candidate who lost grants 2,000 Constitution by votes to as over be seated judge to allowing Senate the exclusive governor. seemingly elections, perverse result, returns, qualifications of its explained: the Court members, power, have no limit its to whether the Franklin own courts review jurisdiction, no to thus decide such Circuit Court abused its discretion Keller issues. Justice also concluded that injunction. granting temporary While jurisdiction to decide the bona fides of necessary I it to address agree that is not candidate, 118.176, by as allowed KRS merits, I disagree with the artificial begins. ceases to exist once the election majority our limitation on review that Unfortunately, is impose. Court chose not to has chosen to This because the Order, publish Opinion and its thus Justice first real issue—and one which must be unpublished. Keller’s dissent remained reaching any resolved before ever other I happen agree But to Keller’s Justice issue, including one ad- purportedly both reasoning, Section 38 and KRS majority opinion in the wheth- dressed —is 118.176, and think that the Court should jurisdiction er the circuit courts ever had disposed have of this case when it first had to consider this case. Because the Ken- agree the chance March 2005. I also tucky express Constitution contains an of question that the is funda powers among of separation the three pro mental in this case. the case’s While provides branches and it- Senate posture extensively cedural has shifted self shall the qualifica- sole dissent, since Justice Keller wrote his members, tions and elections repetition would be exercise in for me Justice, whole, jurisdic- lacks attempt to recreate the substance of tion this case. But ignoring these Justice Keller’s critique extensive and in Constitution, aspects foundational of our futility try me surpass quality indeed, by failing question even to ask opinion on those I issues. also think jurisdic- whether the circuit court had that Justice Keller’s dissent should have tion, majority opinion, allowing Therefore, published initially. been I have injunction stand, temporary permits decided to adopt incorporate my it into circuit court continue to consider a mat- opinion own as a statement of the funda expressly ter that is reserved to another mental principles underlying my own dis government. question branch our The following sent. The lengthy passage, de however, jurisdiction, paramount asterisks, marcated two sets of five reason, For this I must addressed. complete text Justice Keller’s diss ent.† respectfully dissent.
Movant, Dana seeks Stephenson, Seum injunction from a temporary granted relief OPINION BY DISSENTING by the Franklin Court. The sub Circuit JUSTICE KELLER probability stantial success trial I. INTRODUCTION moving party, Respondent, which was Woodward, court, in the majority Virginia L. circuit declined address the *19 case, merits of the choosing controlling determining instead to is a issue in † through have changes expedited I made a few text no what was doubt an opinion, 2005; Justice Keller's these writing process are limited editing in March (1) converting designations his footnote (3) correcting paragraph structure of from numbers to lower-case letters in order to h, quotation associated with footnote own, my differentiate his footnotes from o, and citation in footnote the omission two by symbols which are denoted before the quotation of the words from text associat- afterward; (2) quoted dissent and numbers ed with footnote u. typographical correcting slipped errors that in injunction.a such manner as shall be temporary determined
whether to issue
then,
by law.”c
directed
jurisdiction,
If the circuit court lacks
possibility
there
no
of success
obviously,
is
question
Kentucky
of whether the
injunction may
temporary
at trial and
grants
jurisdiction
the courts
Constitution
importantly,
But more
consid
not issue.
after an
to decide election matters
election
require
question
of that
would
sub
eration
has been held is well-settled law. As
majority has
mitting
trap
that the
Judge McCrary noted more than one hun-
if
years ago:
does not
“The courts will
un-
fallen into because
dred
exist,
upon
right
party
of a
appropriateness
dertake to decide
question
Legislature,
hold a seat
where
entirely
injunction
pre
is
temporary
of a
each house made the
the constitution
Thus,
on the
my analysis
mature.
I focus
qualifications of
judge of the election and
i.e.,
jurisdiction,
question of
preliminary
” d
important-
....
own members
More
precedent
condition
for
the fundamental
firmly
precedent
holds that
ly, our own
power by
the exercise of
a court.
ques-
jurisdiction to
such election
decide
exclusively
the hands
tions lies
II. THE GENERAL ASSEMBLY HAS
Assembly.
General
TO
EXCLUSIVE JURISDICTION
Beckham,e
predecessor
our
Taylor
In
v.
THE
DETERMINE
ELECTIONS
interpretation
faced
court was
QUALIFICATION OF ITS
AND
Constitution,
Kentucky
Section
MEMBERS
provides,
language strikingly sim-
injunction in
granting
temporary
38,
ilar to that contained
Section
Court,
case,
rely-
the Franklin Circuit
“[cjontested
Governor and
elections for
v.
part
on Rose Council
Better
ing
shall be determined
Lieutenant Governor
Education,b
“[t]he
stated that
Judicial
Assembly,
Houses
by both
General
clearly
jurisdiction to consider
Branch
may
regulations as
to such
according
Legisla-
actions
and review whether
Taylor and
by law.” W.S.
Wil-
established
Constitu-
Kentucky
tive Branch violate
for Governor
liam Goebel were candidates
correct,
generally
if
this is
tion.” While
Marshall and
in the
election. John
given
expressly removes
the Constitution
for Lieu-
were candidates
J.C.W. Beckham
purview of
Court of
question from the
Taylor and Marshall re-
tenant Governor.
Justice,
of the Commonwealth’s
then none
in their re-
majority of votes
ceived the
election,
question.
address the
Section
courts
their
After the
spective races.
appears
Constitution
contest
initiated
opponents
Assembly.
that: “Each house of
exactly
have done
the General
notice to
giving
Assembly
judge
convened
General
shall
the General
When
an election con-
January
of its
it initiated
and returns
qualifications, elections
in the statutes
inquiry
prescribed
members,
election shall be
test
but a contested
1897)
(4th
(Ky.
§
[hereinafter
at 237
ed.
a. Maupin
Stansbury,
575 S.W.2d
JR.,
PHILIPPS,
McCRARY,
KEN
OF ELEC-
App.1978); 7 KURT A.
LAW
AMERICAN
PRACTICE,
("Nor
OF
TIONS];
RULES
CIVIL PRO
§
TUCKY
will
at 285
see also id.
65.04,
ANNOTATED,
cmt. 2
Rule
CEDURE
claiming one
be available for
mandamus
(5th
1995).
Group
ed. West
Legisla-
Legislature where the
in a State
seat
(Ky.1989).
empowered
the election of its
b.
183 passed pursuant provides to Section 90. On governor. they Febru- It how shall be 2, 1900, ary the General de- by provides filled election. It how also clared Goebel and Beckham to have been the result shall deter election of governor elected governor lieutenant mined. In each the four constitutions in the November 1899 Taylor election. general assembly of this state the sought remedy and Marshall from the been made exclusive tribunal for courts. determining this matter. This shows clear and settled purpose keep
The Court this Appeals ultimately de case, political question clined to out holding decide the that the courts. We gave Legislature Constitution right supervise exclusive have no more jurisdiction over the matter and that “the decision of the assembly in de jurisdiction courts are without go be termining the result of this than election by hind the record made the legislature supervise have to we the action of the under the constitution.”f reaching this governor in calling special session decision, the Court noted that Section 27 legislature, or in pardoning a crimi provides the Constitution separa strict nal, or legislature the action of the executive, tion legislative, of the judi debts, contracting or determining upon cial powers, and that “the state constitu members, its doing any or tion was intended to maintain the absolute by other act authorized the constitution.h independence branch of Siding Taylor and Marshall would .g government The Court also required have that the ] Court “usurp[ noted: power general assembly vested in the by judiciary power [T]he have no to sit constitution, express its terms judgment upon the of an motives inde- only general assembly can determine a pendent branch of government, or governor contested election for lieutenant deny legal effect the record its gove And consequently, rnor.”i solemnly actions pursuant made it “ Court held that courts have no ‘[t]he allowed, If constitution. it were right to adjudicate upon these questions, soon would follow that independence ”j or to decide such contests.’ legislature be destroyed would
altogether .... Though the Beckham Court was faced
The
90,
constitution of
interpreting
this state creates with
Section
due to the
the offices of governor
similarity
sections,
and lieutenant
between
two
it also
f. Id. at 182. It
should also be noted that after
fell
case
outside
and dismissed
losing
predecessor
their
581-81,
case before our
the case. Id. at
addressed
why
prohibited
of
Section 90
evidence
analysis
of the
above
Sec-
applicability
interfering
General
courts from
with the
obvious,
given
tion 38 is
Section
Assembly’s
decision under
section as-
power
grants to
General
sumed
it was inconceivable that the
qualifica-
determine the elections and
courts would
decision
interfere
of
members,
of its own
some of this
tions
Assembly made
the General
under
included to show that
discussion is
language
38. The
similar
Section
of
jurisdiction, or
question of the courts’
stated that the United States
Court also
thereof,
lack
more
has
appropriately
ques-
Supreme
had answered these
Court
already
by
and addressed
been considered
posed by
hypothetical in
tions
its
Wilson
all, the
courts. First of
Court noted:
our
Wilson,
offi-
state
North
Carolina.m
that the phraseology
“It will be observed
cer,
arbitrarily
who had been
removed
substantially
section
the same
38]
[of
office, applied
Supreme
Court
from
” k
posed
....
The
then
section 90
redress,
case
dismissed
for
but his
for
following
situation:
hypothetical
jurisdiction. The Beckham Court
want of
then noted:
Suppose
brought
suits had been
these
arbitrarily
remove an
state
general
two
of the
assem
members
If
appointed, we see no reason
once
effect,
bly, alleging, in
the same facts as
officer
why may
provide
it
such means a[s]
case,
anybody
alleged
are
in this
would
proper
it sees
determination
for
judiciary
the state
suppose that
it
not such
its own elections.
If
power
go
would have the
behind
sovereignty
its
as a state
power, then
journals,
legislative
supervise
congress
exists
name.
action, in
de
propriety
has, by the constitu
the United States
election of members?
termining the
tion,
qualifica
power
general
assem
Could a
member
tions, elections,
of its mem
and returns
bly,
had received a certificate
who
it
In not a few cases
has been
bers.
board,
canvassing
and been after-
arbitrarily in
to have acted
supposed
from the house to which
wards ousted
matters,
it
main
was never
such
contest, allege
belonged
he
on
was ousted
his
tained that one who
the house had acted arbitrari
show that
congress
a contest could take
seat
on
pre-existing right,
ly, depriving him a
to supervise
the courts
the matter into
denying
to him the emoluments
grounds
congress
the action of
the office for the term? Could
case. Yet the
alleged
are
such action
either
maintained that
congress,
constitu
under the
power of
assembly violated
general
house of the
tion,
claim
determining which of two
him the con
protection
afforded
to a
in fact elected
seat
ants was
States, or that for
stitution of the Unitеd
is,
qualified,
admittedly
body,
being
both
the state authori
this cause the action of
constitution, just the same as
under the
constitution, by
assembly
vir
ties under the state
our
gov
determining
claimed
have been
tue of which he
contested
governor.n
elected,
ernor and lieutenant
might
overruled?l
added).
n. Beckham,
k. Beckham,
(emphasis
at 184
56 S.W.
at 184.
56 S.W.
Id.
l.
S.Ct.
m. 169 U.S. (1898).
185 Our predecessor permit court Sec knowingly addressed faith will not violations specifically, recently, tion 38 and more in provisions. of other constitutional With Stovall,o Raney Raney, v. where a state matter, respect subject peo to this senator, appointed deputy was as a sheriff ple reposed responsibility have in halfway through his term as The senator. legislature. The courts are without stating a passed Senate resolution review its deter-m to solemn senator”p Raney duly qualified was “a ination.t though, noted, even as the it was in Though the facts this case differ from quite possible that “the office of senator Beckham, insofar as the issue involved an and deputy incompatible sheriff are offices, over election contest executive acceptance of the second office vacates q Raney, the first.” than insofar as the senator declaring Raney Rather unqualified office, and removing question already him from had quali- been deemed adju the Court stated that fied, “authoritative principles involved are identical. right dications are to effect that the of says Constitution what it legislative body to judge qualifica says: means and means what it The hous- tions of right its members includes to Assembly es of the General shall of finally decide whether or not one themof elections, qualifications, and returns of has become disqualified during term of his their separa- members. “The doctrine of office, and this decision not subject is to governmental tion of powers runs like a court review.”r This is because “the vest golden throughout thread of the fabric our ing of powers certain body u government.” Kentucky is one of the few pass constitute power exclusive incorporate separa- states to the notion of qualifications upon members, of its tion of powers explicitly so our Constitu- thereby depriving the of authority court “ such, tion. As ‘[e]ach is own’ adjudicate subject.”s on that law of the ... Constitution which the Judi- v just Section 38 is such vesting pow- of ciary obey.” ... must That the Thus, legislature. er in the as Raney, determine the elections and Appellant] suggests the action granted its own members is exclusively respect Senate with to [Stephenson] con Assembly, the General not stituted a clear violation the Courts, beyond question. is Constitution that the courts should recti case, In this the Senate exercised fy However, the error. that the fact power by finding was legislature may make wrong decision qualified to serve as a senator. And why is no reason the judiciary should though Assembly might, General designated invade what has been as the measure, objective some wrong, have been exclusive domain another department Beckham, assembly government. right “[w]hether not Taylor See decision, Ky. 49 it is our province S.W. L.R.A. 258. w We determine.” good must assume the Senate (Ky.1962). o. 361 Appointment Appeals, S.W.2d u. In re Clerk Court (citation (Ky.1957) S.W.2d omit- p. Id. at 519. ted). q. Id. v. Id. at r. Id. 521-22. at
s. Id. 523. Beckham, w. 56 S.W. t. Id. at 523-24. ques- to decide the important question But a much more General *23 This Section which case, tion. is beсause integri- in the which is the involved statute, any already takes over precedence ty government of our form of as founded house the declares that of General “[e]ach by our forefathers. If the action of the Assembly shall of the... elections disregarded the legislature may be ” and returns of members.... Section courts, longer equal and then it is no an only independent requires final 38’s clause government independent branch of the proceed according that this determination jurisdiction, within its constitutional such, statutory to And as the mecha- law. depository the final of courts become the carry nism that has been enacted out the the Judicial supreme power of state. independent the command of this final tyranny tyranny is no because less fol- procedure clause sets out the be in There was couched the law. forms of Assembly, of lowed a house the General dividing powers great wisdom court, deci- making not a the ultimate equal a betiveen three and inde- republic likely why This circuit courts sion. is pendent operates sets One officers. rely in claiming did not on this statute other, great- a and no upon as check jurisdiction. perpetuity er our institu- blow destroy this given tions could be than to Instead, Franklin Circuit Court re- check.x 118.176, pro- heavily lied on KRS “good challenging for vides means such, is only conclusion As reasonable candidate,”y faith” of [a] or “bona fides mem- that to decide elections Circuit and on the fact that Jefferson Assembly is vested bers General had, ruling pur- a ostensibly, issued Court itself, and solely Assembly General Franklin Cir- to this statute. The suant any power lack even that the courts action under cuit maintained an presented. the questions entertain contest KRS an election as 118.176 was III. 120.195 AND KRS 118.176 KRS by Section 38 of the Consti- contemplated such, tution, that, jurisdiction that the it The Franklin Circuit Court held as had important to jurisdiction But is “[i]t General conferred to hear case. contest statutory distinguish a between an election by promulgating the courts “An election lawsuit.”z settling pre-election of election contests a scheme for the proce- obviously post-election of the last half contest is pursuant to the mandate dure, has been clearly an holding involving is in er- election 38. This Section held, pre-election from a provides statutory distinguished as ror. KRS 120.195 may be person whether a contesting an for suit to determine for election framework As we have Assembly. The on as a candidate.”aa voted position the General before, challenge as pre-election elec- noted when and how an prescribes statute al- of a candidate “qualifications” how to initiated and tion contest technically not “is 118.176 taken. Nowhere does lowed KRS proof is bbThus, it is clear an contest.” partici- that the courts election statute declare the means provide this does not decision-making process. this statute pate in contest, and that an fact, say pursuing that the election the statute does not even Wilson, (Ky. S.W.2d aa. Fletcher x. Id. 1973); Chapter KRS accord added). y. (emphasis KRS 118.176 .Noble, Meagher, z. Noble v. 686 S.W.2d at 461. bb 686 S.W.2d (Ky.1985). maintaining ter, applied
not means the courts’ at least as elections to the Assembly. after General the election. circuit courts portion case have assumed statute, This makes sense because an statute thаt allows action under terms, its own allows a means to KRS 118.176 to “be commenced challenge the “bona fides” of candidate: ”ee prior time of any The bona fides seek candidate long challeng- means that action *24 ing nomination or in a primary election ing bona fides of a is candidate filed general may or be questioned fides, begins, before the election the bona by any qualified voter entitled to vote and thus the qualifications, of a candidate for such or by opposing candidate an determined, can then be even if the deter- by summary candidate con proceedings mination does not occur until after the sisting of a motion before the Circuit election. reading simply This is incorrect. judicial Court of circuit in which the jurisdiction For courts to retain over questioned candidate whose bona is fides involving a case an election to the reside.cc Assembly simply General after the election candidate, however, A “bona fide” is mere- begun because action was before the ly “one seeking who is nomination election would allow the courts to unconsti- primary or election election tutionally invade that which is exclu- according to law.”dd Once election is province Assembly. sive of General held, the no person longer is nomi- seeking above, As discussed Section 38 in the vests nation or election—that question has been General sole to de- Indeed, decided the voters. once the termine the elections and of held, persons election is longer are no own members. This couldn’t be Rather, even “candidates.” their race has clearer, especially of light when viewed in been run and the winner has been decided pre- post-election versus division con- by the voters. All that remains is to re- templated by Noble and Fletcher.
view the returns identity to ascertain the This also makes from a policy sense of process the winner. voting of perspective. The voters need know for that, transformed candidates so in the they whom will opportunity have the race, case a senate all that remains is a go vote they polls; when to the thus the elect, senator prima who has a claim facie ballot needs to be finalized the elec before office, loser(s), and the who has no why tion. This is the statute allows the claim to the office. use of proof, requires oral that the action might argue
Some that this is a matter summarily “be delay,”ff tried and without of mere semantic quibbling, but such a provides for accelerated review reading supported by is the distinction Appeals.gg speedy Court of A determi pre-election Noble and Fletcher between nation slate candidates is all the challenges to who be voted on as a important more light the dual func candidate a post-election “contest” tion voting: “[I]t must remembered determine who is the lawful majority winner constituting plu those or reading necessary election. This is rality also not vote for the candidate or pass choice, statute to constitutional mus- of their but they measure also vote 118.176(2). 118.176(4). cc. KRS ff. KRS 118.176(1) added). (emphasis dd. KRS gg. Id. 118.176(2). ee. KRS returns.jj (and candidates, or KRS 118.176and Section 38
against the other candidate 120.195) govern two distinct against opposing side sub KRS period Allowing pre-election circuit spheres mitted measure.”hh —thе post-election period. The be court to the election that a distinction decide after just good fide tween the two is more than candidate not bona does disservice rules; voters, arbitrary policy compliance candidates and who rather, constitutionally are, effect, because the distinction disenfranchised votes, integral Ken they thought part their had were mandated and is an cast, tucky’s separation powers doctrine. validly are directed not be counted. Thus, it than in is clear that KRS 118.176 is Nowhere is this more true those contest; for pursuing more than two can the means an election races where there are didates; provide challenging candidate of it does not means of those voters whose *25 is disqualified anything not after the election over. deprived choice is later are choice, only for their first voting of but the Consequently, it is incumbent on Thus, choice. it is clear also their second challenger proceed to under who wishes the statute Legislature that the intended an action KRS to file such suffi- 118.176 provide fast efficient means of to a and ciently in advance to allow the circuit court a challenging the “bona fides” of candidate fides candidate’s bona to determine the the election.ii before But did before the election. Woodward time, challenge in KRS Obviously, not file her and the action allowed KRS is, the most, complementary to cannot now to invoke 118.176 the 118.176 be used at ju- jurisdiction of The courts’ by the courts. process envisioned Section 38 evaporated to under KRS 118.176 In elections the risdiction Constitution. 2, on polls opened the November Assembly, applica KRS 118.176is when General indeed, pow- place. responsibility, 2003. The the the election takes After ble before election, er, solely to to decision then fell any pending the KRS 118.176 ac make the § under 38 of the Constitution. question tion moot and the of the bona the Senate is Thus, Stephenson’s bona fides fides a “candidate” is irrelevant because because of election, the lacking into not found before 38 the comes were Section of Constitution ren- fact, regard in that jurisdiction the after claim play. court’s Woodward’s began, ordering dered moot once election is limited to election duties, of the Jefferson Circuit officers to execute their the decision election i.e., County Board ordering the Jefferson certify the results shown to Barker, 526, necessary enable them McKinney Ky. ed credentials to hh. 180 203 S.W. v. 303, (1918). proper rights tribu- to assert their before the And, canvassing re- nal. inasmuch as Meagher, ii. See also Noble v. 686 S.W.2d ministerially no Wilson, and have turning officers act (Ky.1985); Fletcher returns, inquire go power to (Ky.1973). behind S.W.2d returned, legality cast and of votes into the McCRARY, jj. OF ELEC- AMERICAN LAW de- compel to them court will mandamus ("The § will courts not TIONS by the certify shown the result as clare and right party upon undertake decide to returns, duty; but plain their because that is legislature, a seat in the where hold election under of a certificate of each house made the the award constitution mandate, legisla- own will not conclude mandamus, members; may by (foot- a court determining the election." body tive proper certifying to dis- compel the officers omitted)). *26 injunction temporary Circuit Court’s to re- interfere is only Legislature’s, where it the quo main in thus a place, preserving status and thus the people’s, to prerogative tread. legitimate the circuit court had no so, doing majority And in the adds insult power to about in the I bring place, first injury to because the the concurrence of respectfully dissent. Woodward, Senate’s refusal to seat when it has found that was properly
qualified elected, SCOTT, and J., with the joins dissenting circuit this opinion. ("All § kk. CONST. KY. is part Inherent latter office for the the of his at least a of people, done, the all governments and free are might term. And be a this contest authority founded on their for side, instituted having little or no merit on his for it peace, safety, happiness, protec- their and the discover, impossible would be to in advance property. tion of For the of advancement investigation, of an the absence of And merit. ends, they these have at all times an inalien- again, party holding the ordinary if the cre- alter, right able and indefeasible to reform or office, kept dentials to an could be out of the government abolish their a in such as manner contest, by the of the office mere institution a they proper."). deem organization legislative body, a for of such McCRARY, 11.See AMERICANLAW OF ELEC- Representatives example as the House of of ("If § TIONS at 227-28 the office were States, might altogether pre- the United be pending might to remain vacant the contest it vented, by instituting against ma- contests a frequently happen greater part that the the of filled; members, jority of the is to be what more expire term would before it could be apprehended, strength political the relative of people might the thus interests the of suffer parties body might changed, by a be public want the the services a for of of officer. instituting against contests members one or Besides, if the mere a institution of contest parties. other These of such consider- prevent be to to deemed sufficient adopt, it necessary ations have made and to swearing person holding in the usual rule, to, person holding adhere that the credentials, easy very great is to see that ordinary qualified, credentials shall be injustice might and serious done. be If this pending a to act allowed contest rule, only necessary were the it would merits."). a can be on until decision had disposed person, right an evil contest rival, Christian, protract his successful mm. and to the con- R.H. Hobbs Co. S.W.2d added). long possible, deprive (Ky.1959) (emphasis test as as in order to
n
n n
n n
Keller,
I
think that
Like
a
Justice
jurisdiction to
an
court’s
decide
action
Thoughts
II.
Jurisdiction —Further
brought
“evaporates”
under KRS 118.176
begins. The clear intent
once the election
majority
juris-
The
sidestepped
prevent
is to
voters from
statute
dictional hurdle and reached
merits
for non-bona-fide candi-
casting their votes
controversy by holding that
courts
dates,
nullify
after the
not
those votes
jurisdiction
have
to determine
I
casting.
fact of their
continue
believe
candidate under
disposed
that this case can
should be
118.176,
if
determination
KRS
even
jurisdictional grounds
of on the
elucidated
held,
long
so
occurs after an election
only
I
While
have
Justice Keller.1
qualifica-
challenge
the candidate’s
majority’s
analysis,
little to add
his
prior
tions was filed
to the election.
reliance on KRS 118.176
the claimed
essence,
argues that
majority
because
jurisdiction
controversy
this
over
source
rеquirement
the statute contains
response
my
requires some additional
challenge
that the
be initiated before
part.
election-—and
not contain
addi-
does
great
majority opinion goes
The
on at
requirement
challenge
tional
text,
length,
a full third
spending
decided
election—the Jefferson
before the
con-
jurisdiction necessarily
attempt
refute Justice Keller’s
Circuit Court’s
to decide
cause
continued after
election was held.
tention
brought
con- of action
under KRS 118.176ceas-
majority claims that
resolves the
begins.
the election
As Wood-
troversy
appeal
there was no
es after
because
notes,
approach
such an
ruling
Circuit Court’s
that ward’s brief
Jefferson
unprecedented in our case law.
qualified
completely-
Stephenson was not
candidate
*27
Indeed,
Kentucky opinions
County
there are a few
and that
the Jefferson
Board
statute,
enjoined
any involving challenges under
counting
Elections was
statute,
Thus,
a
analogous
where
deci-
cast
her.
the order is still
an earlier
votes
effect,
a
bona fides was
meaning
cannot
sion as to
candidate’s
in
that
election.2 See
disputed
after
rendered
be seated as a Senator.
States,
conclusion,
recognize
Morgan v.
801 F.2d
reaching
that
vision.”
United
In
this
I
1.
445,
Nevertheless,
(D.C.Cir.1986).
I
courts,
con-
448
approaching the federal
the federal
in
employ
lack-of-jurisdiction con-
tinue to
I,
analog of
38—Article
constitutional
Section
law,
cept
case
which relies in
because our
5,
Constitution—
section
United States
powers provi-
separation of
part on our strict
they technically have
have held that while
sions,
historically
that
held
Section 38
has
jurisdiction
disputes,
subject-matter
over such
among the federal
jurisdiction.
bars
Even
non-justiciable
they present
political questions
courts,
approach is not unheard of.
such an
See,
judiciary.
that cannot be decided
(holding
involving
447
a case
See
in
id.
(7th
Fallahay,
e.g., McIntyre v.
191 v. Meagher, (Ky. Noble 686 tion a qualifications S.W.2d 458 candidate (rendered 1985) February 1985, in follow election is But continues after the held. election); ing the November 1984 Fletcher proper when viewed context —name- Wilson, v. (Ky.1973) 601 [here S.W.2d ly, appeal that this was the second in the (rendered II inafter Fletcher in October ] apparent precedential value is matter —its 1973, following May primary elec diminished.
tion); Waterman, v. 141 S.W.3d Hoffman mаtter, appeal The first Fletcher (the 16 (Ky.App.2004) circuit court did not Wilson, (Ky.1973) v. [here- S.W.2d days rule until 46 primary after the 2004 ], brought I inafter Fletcher was to deter- election). inapplicable But Noble is be standing if plaintiffs mine the voter had cause the failed Court to reach the merits challenge aof candidate. Instead, 118.176 KRS issue. The Court held that voters indeed had the disposed by vacating the case right bring challenge, a re- order the circuit court because the proceedings. manded the case for further brought cause had been wrong In explaining holding, I Fletcher court, which jurisdiction. therefore had no Court, as noted above Justice Keller’s In Hoffman, Court Appeals declined dissent, explicitly distinguished an between find the candidate was unqualified. brought election contest and suit de- Such a entirely result is not inconsistent cide person legitimate whether a declining jurisdiction, especially when obviously one “An considers the court’s candidate: election contest reasoning, based Brown, Heleringer post-election procedure, involving S.W.3d (Ky.2003), public held, that the policy in favor of has been as distin- participation broad voter supports allowing guished pre-election from a suit to deter- Moreover, a candidacy to continue. person may mine whether a voted on as fact mere that the Appeals Court of ac Id. at 791. The candidate.” Court then cepted in that case is not bind primary noted that “once the has been ing precedent on this Court. held it who qualified determines will be the (subject candidate the general election
Realistically, only gives case that me primary).” to a contest of the Id. The pause regard Fletcher II. *28 Court also cited case voluminous law case, predecessor held, our court after the proposition “questions the ... to that as primary election had completed, been that right the of person placed a to a on a candidate for the Democratic nomination as a ... ballot candidate should be decided for the magistrate office of local had not voting place.” before the takes 792 Id. at properly candidacy papers. filed his added). (emphasis The Therefore, repeated Court he “was not entitled to have his forms, ballot, proposition this in and, on various like some name the being thus not mantra, candidate, talismanic no less than four more qualified [could be awarded not] II, throughout times the the the nomination.” remainder of Fletcher 500 S.W.2d (“[T]he result, opinion. at Id. at 792-93 real of 607. As a basis the Court declared just in holding group that there had the the primary been no valid elec- cases tion, leaving eligibility the above is that the of a Democratic nomination cited candi- glance, vacant. At first this date for nomination or ... case seems elections should precedent majority’s like clear voting for the determined before the takes jurisdiction claim that pass ques- place.” (emphasis added)); to on the id. at 793 proposition jurisdic- for the that KRS 118.176 tion the continues after election.
(“That holding (Ky.1974) [hereinafter with the consistent hold- S.W.2d discussed, case, in III In the ing ap- ]. the cases hereinbefore Fletcher that pears to to the questions placing tightly, that related of the have taken reins more given that the Chief Justice himself wrote сandidate’s name on the ballot should be voting.” (emphasis opinion, delegating determined rather than to a before added)); in the cases. In (discussing policy id. further “the Commissioner as earlier so, ultimately doing the Court sided with questions right ... that of the of a candi- I: Fletcher date to be on the ballot should be decided (emphasis before the takes voting place.” It be conceded also that what was added)); (“Thus, opinion id. at 794 there are indi- in on said the first Fletcher is, questions subject the policy, general cations that that elections technical- are right ly, opinions on the ballot dictum. But written for of candidate to be assisting lawyers voting purpose should takes be decided before disposition place, practice courts in the preclude could be extended so to opinion future The Fletcher postelection cases. general contests elections first added)). clearly unmistakably marks out the grounds.” (emphasis on such path to be this one. followed strong light language In used in added). essence, (emphasis Id. I, why it is Fletcher unclear the Court analysis in Fletcher I. Court revived the away appeared to back from this stance This, turn, leads me to conclude that appeal, especially the second since Fletcher precedential Fletcher II has no value. I II Fletcher were authored majority argues general The also person, same Commissioner Cullen. Ad- mittedly, acquires the Court had somewhat rule that once court hedged I, case, subsequent events cannot language noting Fletcher that decide a But, jurisdiction. the ma- “questions of the kind ... defeat that be raised must I, notes, general jority this primary.” before the Fletcher itself 792; (noting at rule. absolute textual commitment S.W.2d at see also id. quali- policy right a Section questions “the fications, elections, legis- of a to be and returns candidate ballot should be seem, ”); at voting place body’s .... members raised before takes lative would least, exception to qualifi- very provide rule this (noting id. “the cf. grant I general ... rule. But even if were go cation on the ballot cannot be election.”).3 holding rule, these Despite raised after II, statements, limiting lack of lan- weight of the discussion in Fletcher enough were appears require guage Fletcher I deci- in KRS 118.176 juris- majority’s conclusion that must come the election is held. sustain the sion before *29 that can questions diction over the limited only I can conclude that the inconsisten- under KRS 118.176 continues be raised cy is due to the fact between two cases election, join I could not after the still that, as his Chief Justice Palmore noted majority the reasons discussed below. majority opinion appeal, in the third “the Finally, respond majority’s to the subject labrynthi- I must partakes law on this ” Teater, to the policy argument that adherence an morass .... Fletcher v. appeal, “the of this court the second mandate The rendition date Fletcher I—June appeal issued before the was primary [the first] after the election was held— on ” II, place .... Fletcher primary took will no doubt lead some claim further But, inconsistency. noted in S.W.2d at 603. internal “evaporation” jurisdiction approach ity’s lack explicit rebanee on the of lan- ... judge would allow a “recalcitrant [to] an guage requiring KRS 118.176 adjudicate simply the KRS refus[e] brought adjudicated action thereunder be 118.176 motion.” Ante at 172-73. Were prior question, this arise, such unfortunate situation to Nonetheless, approach. the sounder aggrieved compel candidate could seek to power the effect is the same—the court’s judge to act applying for one our evaporates decide issues because extraordinary writs. And such though longer presents case no a live contro- obtain, writs are difficult to in an election versy. situation, essence, where time is of the it is Furthermore, if even one were to con- likely that the courts sympathet- would be presented clude that the matter a Kve ic. Our even a petitioner rules allow seek- controversy election, meaning after ing a writ to in- request emergency that the Jefferson Circuit Court action was relief, 76.86(4),which, given termediate CR moot, not immediately surely rendered the statute’s command motion “[t]he controversy died once the Senate af- summarily shall be tried and without de- firmatively voted to seat Stephenson as 118.176(2), lay,” KRS likely would also time, At Senator. she became granted. Moreover, majority’s worst- Senate,4 member of and that already case scenario has happened: The a constitutionally exercise of granted pow- circuit in this case admitted controversy er ended and decided the post-election hearings that intentionally he rights parties involved. This conclu- waited until after the election to address sion, however, is on I think is based what petition Woodward’s KRS 118.176 because yet another could have been insurmountable obstacle—one rendered moot had she address, majority won the that the election. fails much less namely, and as discussed be- refute — III. Mootness low, inability any entity bind Even if occurrence of the election does constitutionally Senate in its exercise give jurisdictional to a rise bar to a conferred under Section 38. brought 118.176, cause under KRS it does any
render claim under statute moot. Binding the IV. Senate Though it was addressed the context of Perhaps importantly, majori- most jurisdictional discussion, his Justice Keller ty’s fundamentally approach is built argued over, that once the election was any winning entity including mistaken bebef that candidate for Senator becomes a — court, Court, the circuit or the state longer Senator-elect is no “candi- board of contemplated by date” the sense elections—can bind the Senate as KRS questions qualifications, 118.176. Yet the related statute allows for a elections, challenge to the bona fides of and returns its members. a “candi- Let just us argument date.” Justice assume that Keller’s Jefferson Circuit so, if not compelling, enjoining more when under- Court’s order the Board of Elec- mootness, as a stood claim about rather tions counting votes cast for fact, jurisdiction. given major- than binding. was valid and Natu- *30 This, course, majority's answers the Senator-elect until the Senate voted to seat But, below, claim that I the have construed election itself her as a as member. discussed having Stephenson point necessary analy- as made a Senator. To does not end the point, only reiterate Justice Keller's she was sis. 194 added).
rally, order The Court allowed the recount to the effect the was proceed was not certified as the winner because majority of the еlection. The treats this ‘usurp’ a recount can be said the order, having appealed, which was not only function if it frustrates Senate’s the Indeed, judicata res effect. the ability independent an Senate’s make justification they only provide for their pre- A judgment. final recount does not remedy. from independently vent the Senate any evaluating the election more than problem approach,
The
with this
howev-
the initial count does. The Senate is
er,
Kentucky
is that
Section 38
the
reject
to accept
apparent
or
into
free
again
play,
comes
Constitution
count, and,
winner in either
it choos-
if
jurisdiction
adju-
the courts of
stripping
es, to conduct its own recount.
qualifica-
question
dicate the
candidate
(footnotes
26,
tions,
by placing
authority
but
ultimate
at
Id. existed. even before the United States decision, reaching its re- court Senate, its federal Kentucky like The history viewed the of the constitutional body, exercis- counterpart, “is provision. It noted: ing with the House in connection But it has had con- history power of the to make laws. Elections Clause certain
entirely
plain
upon
with its
exclu-
the Constitution
consistent
ferred
legislative,
judi-
judicial
jurisdiction.
powers,
In the
which are not
sion
cial,
Among these is the
years
repub-
the American
in character.
formative
elections, returns,
lic,
Eng-
practice
power
it was the uniform
of the
own members.”
to be
legislatures
qualifications
land and America for
Cunning-
ex
judges
Barry
v. United States
rel.
the final
the elections
452, 455,
ham,
597, 613, 49
of their members. There
S.Ct.
U.S.
(1929).
opposition
no
to the elections Clause
The rule as to the —then effect of the decisions entity power to bind the legislative Franklin Jefferson and Circuit Otherwise, body before the fact. pow- Courts, and the Board of Election’s failure granted by er Section 38 is meaningless then, to count votes cast for Stephenson, provision nothing and the itself but a dead Any clear: other proceeding entertaining Again, necessary letter.6 questions as to rule is clear: aof Senator is, best, legislative body’s Just as a decisions complementary any parallel about membership consideration of the its are not questions by same after reviewable constitutionally-mandated fact, they arbiter of those too cannot so be bound questions.5 any short, And complementary legislative before the fact. Despite Even Franklin Circuit refused Cooper’s implication al oath. Justice find that the Jefferson Circuit order Court's contrary, Section 38 does not become binding judicata. as res inapplicable simply "has because candidate ..., properly duly been certified as elected 6. This also serves as an answer Justice office, ... ... has taken oath of Cooper’s claim separate concurring in his possesses qualifications for the constitutional opinion, argues where he that Woodward ac- Furthermore, Ante the office.” at 177. Jus- tually became a member of the Senate when opinion Cooper’s as to tice the effect by she took the oath of office as administered "duly of Woodward certification elected" Judge Ryan, meaning thus that the Senate is, majority opinion, premised like the only "purported to her refuse to seat assumption by mistaken that the official count body.” (empha- of that member Ante at 177 added). Elections or the case, Board of certification If that sis is the Senate has Secretary opportunity the winner of State can bind power no exercise its under long so re- Section as a rushes the Senate if it reexamines the election candidate the nearest and swears the constitution- turns. reject claiming right membership
body
person
decision on the
free
subject
body,
another
one
including
body.7
How
could a
else
made
a court.
body
elections
judge the
members?
observed,
Story famously
As Justice
majority opinion attempts
to evade
is to
primary function of such
analysis by limiting
applicability
*34
body to
legislative
allow the
determine
disputes arising after
per-
Section 38 to
chosen
legitimately
mem-
(or,
“who were the
the
son becomes a member of
Senate
”
Commentaries
House),
Joseph Story,
when
the
as was the
bers
....
applicable,
Stovall,
in Raney
(Carolina
416,
case
VI. Conclusion
any
point
cult ...
out
other hands
majority opinion
safe,
blames
power would
more
which this
Appellants for
fact
Dis-
37th
equally effectual.”
and at the same time
gone unrepresented
trict has
over the last
(7 How.)
Borden,
Luther
U.S.
year, claiming
ap-
they
should have
(1849).
As
Morgan 445, fact, United polls In had with F.2d Ms. (D.C.Cir.1986) added). (emphasis Stephenson 772 votes to Ms. garnering votes, is, doubt, when Ms. policy Woodward’s Ste- underlying Section no phenson was served with notice of the the same. The reason that very Section 38 grants p.m., night, action at 9:30 on election while legislature the exclusive elections, returns, attending victory celebration. qualifi- her Conse- quently, hearing not be held until cations of its own is to could members avoid a election, day November prolonged fight inherently after the political over an question. Alas, 2004 at 3:30 exactly p.m. this what has happened here. hearing, rejected At the court Ms. reasons,
For respectfully Stephenson’s postpone these I dissent. motion hear- time,
ing just so might short she SCOTT, J., Then, joins dissenting prepare opinion. counsel. after a hear- hour, ing lasting than one less Jeffer- SCOTT, Justice. Dissenting enjoined son Circuit Court Jefferson Respectfully, I I must dissent. still County certify- Board of Elections “from ” firmly believe that Keller right Justice ing the results of election .... dissent, noted, in his March when he “be- 22, 2004, final decision on November cause the Kentucky Constitution contains court held Ms. did not meet an express separation powers among “residency” requirements set out in provides three branches and that the Ky. permanently Const. Sec. 32 and en- Senate itself shall be the sole judge of the joined County Jefferson Board Elec- members, elections tions from counting votes cast for Ms. *37 Justice, whole, the Court of as a lacks Stephenson though tally had al- —even joined in I this case.” Justice ready been made. Keller then and all ensuing after Then, 7, 2004, on Ms. December Ste- briefs, arguments, I discussions and re- phenson filed an “Election Contest” with main firmly of convinced correctness Kentucky pursuant State Senate position. his procedures in 120.195 set forth KRS
The campaign for the 37th Senatorial 120.215. Ms. Woodward countered with District seat in County began Jefferson this action in the Franklin Circuit Court 15, Then, in filing January, deadline on January 2004 December 7, through 2005, and ran days election on of hearings by after three its 2, Committee, November Appellee, Kentucky 2004. The Ms. Election Vir- Contest (who ginia Woodward, L. in admitted the Senate received considered the Con- Jefferson hearing Circuit Court that she test reports Committee’s recommen- had been gathering Ap- by majority materials on the dations and vote of the full Senate, pellant, Stephenson, rejected report Ms. Dana Seum that recom- months), chose, however, to wait until seating the mended Ms. Woodward and day last adopted report finding minute of the last to file a chal- Ms.
lenge “residency” qualifications to Ms. Stephenson’s did meet the the Jefferson Court. the office and seated. Ms. Circuit With this should be Ste- delay, phenson calculated it was assured was then sworn and seated as a there Senate, would no for the possibility be action to be member State prior representing resolved eleсtion the 37th Senatorial District next Thereafter, morning. County. Jefferson on Janu- 202 Court, being
ary persons, the Franklin collection one of those Circuit action, any power mo- granted this Ms. exercise departments, Woodward’s shall injunction against tion for a Ms. temporary properly belonging either of the oth- Stephenson, prohibiting her from exercis- ers, except in the instances hereinafter any of from the ing (Em- her duties Senator permitted.” expressly directed added). 37th District. the Ken- phasis Section tucky provides, Constitution then “each majority opinion Because this Court’s house of the General shall extending has the effect of KRS 118.176 qualifications, elections only into “pre-election” proceedings, not members, but returns of its a contested protected by Section of the Ken- areas in such election shall be determined Constitution, tucky gen- even past manner as shall be directed law.” deadline, expected it may eral election be added). Thus, dealing (Emphasis when that the late as occurred filing” “calculated qualifications, and re- here, with the elections will over in replicated many times come, turns of of the General Assem- years at a of increased members cost political bly, rancor Section authorizes “contested parties, between according hundreds of thousands of of addi- dollars elections” be determined expenditures tional for new elections grants ground no for interference law—it taxpayers the various candidates and by “pre-election proceedings.” during this state. these importantly, More cannot “Properly speaking, contests,” “now extended their constituen- ‘an ‘contested’ it is held and thus before representation will cies be without post-election proceed- election contest is important government, due to functions ” Lyons, 586 ing.’ S.W.2d Thomas delays litigation. naturally inherent in (Ky.1979). regu- contests are Election I today, As we are in late Decem- write Chapter KRS 120. And as to the lated time, during ber and all of Jefferson Governor, Lieutenant Governor and County the aid of one of has been without Assembly, such members of the General through making its Senators by Ky. contests are authorized specifically will, likely than budget 2005 and more pro- Sec. and 90. “Pre-election Const. not, during be without one of Senators *38 by Chapter ceedings” regulated are KRS Thus, most the session in 2006. approved and are not an means partisan constituents the electorate elections, determining “qualifications, have enjoyed could this battle. Gener- returns” of the members Constitu- Section 27 Assembly Ky. Const. Sec. 38. al under that, provides powers “[t]he tion Chapter within KRS 118.176 falls of Ken- government of the Commonwealth whereas, Elections,” titled “Conduct tucky shall three distinct be divided into ap- the Chapter 120.215 falls within KRS confined departments, and each of them be “Election titled Contests.” propriately separate body ...: are to a Those which an in this case is not one; we have execu- “What legislative, to those which are contest, pro- pre-election a tive, another; judi- election and those which are ” Moreover, cial, .... at 715. ceeding the Ken- Thomas to another.” Section 28 of Thomas, recognized when tucky provides, person “no we Constitution momentarily. constitutional address 1. There are no other relevant sectiоns, I will than Section other KRS 118.176 “runs athwart” of constitu- (Emphasis the Circuit Court .... sections, added). tional give KRS 118.176 must
way. Thomas at 716. out, points KRS 120.205 in relevant part: When the election of a Governor or 118.176,dealing “pre-election”
KRS contested, Lieutenant Governor procedures, provides, in part: relevant board determining for the contest shall (1) A “bona fide” candidate means one be formed Assembly] [from the General seeking who is nomination in a pri- mary or in general election election (5) ... The decision of the board shall
(2) The bona any fides of candidate conclusive, not be final nor but shall be seeking nomination or (2) reported to the two houses of the primary or general election may be session, Assembly, joint General questioned by any ... voter entitled the further action of the General Assem- to vote for such by candidate or bly. opposing candidate summary pro- then, KRS 120.215 for members of the ceedings consisting of a motion before Assembly, provides: General the Circuit Court .... An action re- When the election of a member of the garding any the bona fides of candi- contested, General seeking date nomination or election shall, branch belongs to which he within ... may be commenced at time (3) days three after its organization, and prior election. The provided 120.205, the manner in KRS motion shall be tried summarily and (9) select a board not more than nine added). without delay- (Emphasis (5) nor less than five of its members to determine the contest. Such board shall governed by rules, the same have the (4) ... The order of the Circuit Court power, subject same and be to the same subject shall ... to a motion to set penalties aas board to determine the aside in the Court of Appeals. The contested election of Governor. It shall motion shall be heard the Court of report its decision to the branch of the Appeals ..., or a judge thereof except Assembly by General ap- which it was the motion must be made ... pointed, for its further action. (5) ..., within days five and the order of the Court of Appeals or judge indicated, As the Kentucky Senate met thereof shall be final.... January majority vote *39 rejected the Contest majority Committee’s 120, however, Chapter KRS sets out the report, which found Stephenson Ms. had rules for “Election Contests.” KRS not met residency requirements, but then 120.155 stage provides, sets the and in accepted the minority report, Committee’s part: relevant which concluded Ms. had met Any state, candidate for any election to residency requirements. It is the dis- county, city (except district or office agreement meaning over the constitutional Governor, office of Lieutenant Gover- of “residence” under Section 32 of the nor, Assembly, member of the General Kentucky Constitution which has fueled ...), may ... contest the election of the this powers granted Court’s invasion of the candidate, by successful filing petition General under 38. Section 204 point, enlarged
But the central which is more elo- for that reason we have If quently upon expressions you in Justice Keller’s here .... addressed language spe- March dissent in dis- can use plain Justice Roach’s ever so cific senting opinion, is the fact that the found- that the courts will not sometime or it, in give change ers of our Constitution did not us another make a then I it, (only you employ one of the three branches of the would like becаuse this library in government) morning to interfere with I sat down qualifications, Digest “the elections returns” took down Barbour’s and found branch, of our sister the General that court has more Assem- overruled itself bly. history; than hundred in times say they then if themselves cannot what “Although policy may current differ it, they in mean and stick to how the time, from that of of the another intent can of heaven use lan- name we of the framers Constitution and of always guage that will be construed people adopting given it must be effect.” they we it and which will stick to. wish Calvary City Episcopal Ashland v. Debates, Constitutional Convention Ashland, 708, Church 278 S.W.2d 710 I, 590, 1890 P. Ky. Vol. Thus, (Ky.1955). the Constitution contin Delegate ues to mean what it meant when it was The honorable from Todd Smith, Petrie, 73, Runyon Ky. 308 Mr. H.G. out: adopted. County, pointed (1948). 521, 212 S.W.2d “Courts it, to me thinking [I]n about it occurred construing provisions constitutional will judges giving that who are these times history look of the and the satisfactory interpretation of that clause existing things state of ascertain the years will in a few the Constitution intention of the framers of the Constitution they pass away from honored seats ” people it .... adopting and the Shambur now and those will be filled occupy, seats Duncan, 388, 390, ger v. 253 S.W.2d be, judges. It as it was other will (Ky.1952); Manning, see Keck v. Pendleton, also Delegate said (1950). 433, 604, Ky. S.W.2d judges. court but same different may that they Who how view knows report A perusal the official They conclude section? proceedings and debates the Constitu- judges is interpretation present Convention, tional held Frankfort concur. They may be unable to wrong. September insight. offers some say giv- They may the construction Therein, delegate the honorable from Pen- the other en clause some T. county, dleton Leslie Applegate, Mr. correct judges way yonder back was the pointed out to those assembled: one; have the trou- and then we would experience Because time if human ble so it seems to me again; or along shown to ex- arraigned can be so language going [the words] even back to be press really thought intended mean men didn’t what who used ..., done. ought then to be conveyed meant; thought they I them and while added). (Emphasis Id. at 625. respect profoundest have the for our courts, we Looking disagreement further at the yet they have turned their forces *40 have, context, it, the sem- light and turned its historical upon they have within 278, Beckham, it, case, Ky. we inal v. 108 upon Taylor of reason have found (1900), years only nine these are deficient to 56 177 decided expressions that S.W. adoption after of our current Constitu- private rights, men their protect
205 Interestingly enough, legal weight paper. tion. printed Sen. William were not Goebel, case, charge, piece Kentucky This a fine a sad focus of the was an political chicanery, trumped up was outspoken convention in the 1890 member fact, throw out the election. Thomas D. episode convention. In which Clark, History Kentucky, p. A Taylor furnished the basis for often is referred to as the affair.” “Goebel Notwithstanding political wrangling,
The ‘Goebel affair’ was the most disturb- 12, 1899, Taylor on December was sworn ing episode Kentucky’s political histo- An as Governor. Election Contest was ry. Marshall, It left the state’s electorate in a by placing then filed Goebel and highly embittered frame of mind. The the “election contest” the Democrat do- said, Republicans ‘they Assembly, pursuant stole the elec- minated Gеneral tion,’ answered, ‘they Kentucky and the Democrats Section 90 of the Constitution. shot our Governor It matters [Goebel].’ 90, 38, pro- Section similar to Section posterity little who fired the shot that vides, for “contested elections Governor Goebel; important killed Senator Governor shall be Lieutenant deter- fact that Kentucky it forced into a by mined both houses of the General As- period long partisan and factional war sembly, according regulations to such which prevented passage of much need- may pur- be established law.” The law progressive ed legislation. Thomas D. Ky. suant to this Section the time was Clark, A History Kentucky, p. 442.2 St., 1596(a)(8), predecessor Sec. today’s KRS 120.205. The General As- In Taylor, Republican gubernatorial sembly then determined William Goe- nominee, Taylor, W.S. a majority received Taylor bel was the winner over for Gover- 2,383 nominee, votes over the Democrat nor J.C. Beckham was the winner Republican William Goebel. The Lieuten- for Lieutenant over Marshall. Governor nominee, Marshall, ant Governor John had Taylor then filed suit to set aside the larger majority a somewhat over the Dem- Assembly. By actions of the General nominee, ocrat J.C. Beckham. however, time been Senator Goebel had The final official gave Taylor count shot Capitol as he tried to enter the build- majority, and signal this was the ing. February He died from the wound on Democrats to start challenging votes. 3,1900. It was claimed [Republican] Governor Bradley’s Taylor, Justice set out the troops prevented had an hon- Burnam predecessor, our est election in circumstances case Louisville. Most outra- all, geous however, Appeals, then the Court of was was the fact that faced with: by political chicanery ‘oversight,’ many
votes of
Kentucky Repub-
...,
eastern
demurrer
admits
lican counties
registered upon
Taylor
were
‘tis-
... Williams S.
and John Mar-
ballots, which,
claimed,
paper’
highest
sue
was
shall had received the
number of
Powers,
Republican
Stanley.
2. Caleb
the then
Secre
doned Governor A.O.
The Powers
tary
part
interesting reading
of State was tried four times for his
reversals make
murder,
Commonwealth,
along
Henry
Ky.
in Goebel’s
found
v.
110
Yout-
in Powers
386,
esy,
(Ky.1901);
a clerk in his office. Three times Powers
735
Powers Com
S.W.
v.
monwealth,
prison,
Ky.
(Ky.
was
sentenced
life in
once to be
warranto to legislators right to Although majority many can cite sit the Montana Representa House of cases elected where officials have been tives). denied office after having majority won the Even Judge Graham of the Franklin election, in an they the votes cannot cite Court, Circuit whose decision this Court is one case where the courts have ruled (albeit reasons), upholding for different elections, against “qualifications, represen- conceded that this is an accurate returns” of a of a member General Assem- tation of the regard, agree law this “we bly, qualifications, whose election and re- (cid:127)with Stephenson and Williams that Section accepted by body turns have been strictly 38 does not limit rights of the Assembly, any jurisdiction that has pass upon Senate to qualifications provisions comparable constitutional its Although members. vehe- Woodward Kentucky Sections 28 and 38 of the mently disagrees proposition with this Constitution. consistently case law has ruled done, however, Stephenson, majority that effect.” Woodward v. What al, 04-CI-1676, et No. slip op. logic they to construct artful from which history, we believe that it is Assembly, from this announce that the General now that the General Assem- 118.176, unquestionable 2001 Amendment to KRS in 2001 to bly amended KRS 118.176 authorize, to, courts and did intended singular goal: to allow chal- effectuate dealing with the in decisions to intervene af- lenges to a candidate’s elections, and returns” “qualifications, and at time primary ter the Assembly. They members General Finding election. prior to perceived guise under the of a do this language ambiguity plain no August legislative over-reaction statute, holding it is our KRS Legate Appeals 2000 Court of decision con- a Circuit Court to permits 118.176 Stone.3 adjudicate election] [after sider the successful candidate Legate was bona fides challenges to a candidate’s *45 city council Democratic nomination for general prior are commenced Madisonville, Kentucky. prob in The man limitations There are no election. Republican. registered was a lem was—he [Ms. Woodward] the movant placed on election, Stone, Rudy primary After the of the election far in advance as to how candidatе, filed a chal unsuccessful commenced, nor are may be the action Legate’s qualifications on this ba lenge to on the placed Circuit there limitations relief granted The then sis. Circuit Court time limitations for ad- concerning va primary and declared the nomination Here, com- judication. Woodward court, al In the trial reversing cant general to the prior action menced her to run as Legate, Republican, lowing filed the Motion That she election. nominee, Ap the Court of the Democrat hours before Disqualify Stephenson in long-standing on our rule peals relied no conse- absolutely polls opened is (Ky. Meagher; Noble v. S.W.2d pri- commenced quence; her action was 1985) qualifications of (involving the the sim- election and satisfies or to the noted, in judges), where we reference requirement of the statute. ple holding 118.176, further “it is our KRS [Opinion, p. 173]. challenges to the fact that Le- ignores the logic This appear on the ballot must candidates to pri- after the challenge was gate, the filed primary election.” be made before the complete the of time to mary, plenty but added). Thus, As the General (Emphasis appeals” refer- “summary proceeding 118.176 sembly amended KRS 118.176, general to the prior enced in KRS “an language that adding the additional fact, Appeals In the Court election. any fides” of the “bona regarding action August was entered opinion Legate nomination or election seeking candidate discretionary re- denied 2000 and we com general may primary Thus, all the August view on any prior at time menced this to do with Assembly intended General election.” filing after the allow its was to amendment of their the extent primary and that’s crafted to amendment From “may commenced meaning by (concerning Legate avoid the strictures In no the General Election.” councilman), majority prior time city presumed sense, have ever concludes, should we Court, now this 2000-CA-01724-1. opinion, case case number majority 3. As noted in the by its unreported, be referenced change from this General As- Appeals the Circuit Court to the Court of sembly meant to let us interfere their and states their orders shall be final. political realm, Thomas, a realm which has not we held that was unconstitutional been violated since 1792—the date of our intruding into our powers. constitutional first Constitution. Thus, respect this Court should its own precedents protect powers of our majority logic, arrives at this not- government sister branches of when their withstanding the comments of the Repre- powers constitutional are invaded KRS concerning sentatives this amendment dur- 118.176, as we do our own. This is a ing the session of the House Committee on responsibility neglected we have in this Elections, Constitutional Amendments and case. Affairs, Intergovernmental which, in ex-
plaining amendment, acknowledged In summary, acknowledge validity I that, election, after an candidates “are no majority’s ruling liti- extending the longer candidates” and therefore cannot gation pursuant time to KRS 118.176 for subject be the of KRS 118.176 actions. contestants, Governor, all other than the Governor, the Lieutenant and the mem- question
There is no majori- but that the Assembly, bers of the ty Court, General who have of this virtue of their con- *46 protections, constitutional which struction of the intention 118.176 legislature of the penetrate. regards amendment, in cannot But I recognize to the 2001 do not can constitutionally that we can gov- consider invade sister branch of and hold that the time within “pre-election” power which ernment’s constitutional litigation under Therefore, guise. endure has I been in believe the acts of the extended cases (a commissioner) Court, Legate city majority decision, as in this this are and (a Meagher unconstitutional, judge) by powers the 2001 amend- as outside the so, ment. long they granted Taylor. As as us. in recognize doing And last Cf. filings they minute are as day, -wrong the last all as was the Senate. with consequent disruptions expenses and later But I go lengthy must further. The (from elections), overturned will be the existence of this Nation and of all its states rule of the I future. could concur in a forefathers, great evidence that our who decision of such tenor. But I cannot con- constitutions, constructed our knew how to cur with a decision that extends KRS great government, you build a a structure 118.176 into constitutionally impermissible might say, which would withstand the areas, Ky. such as Const. Sec. 38. history. winds and storms of The one
Never knew, before has this they Court hesitated in today, secret and we overlook finding application of KRS 118.176 to they government, is that built this or be structure, unconstitutional when invades consti- peo- on a solid foundation —the tutionally protected They areas. “To the ex- ple. recognized people and re- 118.176(4) provides tent them, that KRS upon player lied to be the fourth in Appeals the action the Court of government, effective, shall to be more for their .of [, interests, it] be final runs athwart Const. diligent timely, Sec. own more and 110(2)(b), Supreme which authorizes the than government itself. For these rea- appellate jurisdiction sons, to exercise govern- each of our three branches of provided by its rules.” intentionally Thomas v. ment in hampered were some Lyons, areas, (Ky.1979). 586 S.W.2d they equal; so that would all remain added). (Emphasis Remember, branch, KRS so no one could ever become 118.176(4) expressly others, limits appeals greater than the garner could ever
enough power, ing accepting any pay to overcome the or greatest for the office of part government people. Senator, This and from participating State —the structure, built, government, they or con- in- Assembly, affairs of the General (the parts, sists of 264 or sections Consti- to, cluding, not limited participation tution), you change one when of these votes, meetings, hearing, any committee sections, you change the whole structure. as, hearing, well of the meetings, and votes just Maybe today, change but that little Thus, full body opinion senate.” this grow you and then someday, will time already we that we acknowledged have find, your dismay, will the whole Kentucky have no to coerce the changed. structure has Senate, if it ignore State chooses to this opinion. And let’s step compare back issue, way resolution of the found- Moreover, Appellant, Stephen- if the Ms. our ers of Constitution intended it to be son, injunction, then we will disregards resolved, way system the court or again upon called decide whether be has resolved it date. Had this Court contempt powers of the Courts precedent Taylor, followed its own themselves, injunction would enforce an 37th Senatorial District of Jefferson Coun- violation of Section of the ty have to participatе would had a Senator Constitution, states, members “the budget in the other decisions shall, in all cases General have It would participate Senator treason, surety or except felony, breach budget decisions to be from arrest peace, privileged year, in normal made 2006. And during sessions of their attendance of the part great government fourth base —the houses, going to and respective their government people have —the —would *47 same; any and for returning from their expressed political voice and vote speech they in either house shall or debate November, punishing party they found any place.” Ky. questioned not be other any rendering at fault and further discus- Const., immunity “[Legislative] Sec. 43. unnecessary. sion matter debate, speech only applies Yet, date, in our actions to have we every voting, reporting, act but to opinions
upheld two Circuit Court
their
duties
execution of
they
grant
admit
cannot
Ms. Woodward’s
Wiggins
while in
house.”
either
request
be seated as
Senator for
Stuart,
(Ky.App.1984)
671 S.W.2d
district;
grant
37th Judicial
cannot
her
Brandhove,
citing Tenney v.
341 U.S.
President of
request
face the
the Sen-
(1951).
71 S.Ct.
All the order is de- Circuit Court pro- filing type “pre-election late of this unqualified clare Ms. to be precluded in a manner that ceeding” enjoin “sitting her from as the State Sena- until after the elec- tor, process court performing any official duties of effective Senators; it “Election Con- rendering the office of State from receiv- tion—thus putting test” and it in Ky. conflict with §
Const. delegate,
Constitutional Convention Mr. Bronston, Fayette County,
Charles J. convention,
noted on the floor at the 1890
that, will “we not submit to the fluctua- Majorities
tions of the might future. arise
that would infringe upon undertake to
these liberties which we seek to secure and
therefore, we will not submit them to the majority.”
rule of the What he was allud-
ing to protections was the fact that
built into the Constitution are to hon-
ored us and our posterity, they were
written, properly until we amend the Con-
stitution, or call a adopt convention to I easier,
new one. admit that it is much
simpler, quicker to amend the Ken-
tucky Constitution a majority vote of
this Court. But that does not it make fact,
right. wrong is as as what the
Senate did. done,
When all is said and few will ac-
knowledge that I up stood for Kentucky Constitution,
and its rather than for Ms.
Stephenson or Ms. Woodward. But I did.
Having said all I say can in defense of Constitution,
our I close in dissent.
B.C., Appellant K.F.,
B.T. and Joint Custodians N.C.1,Appellees.
No. 2005-CA-000045-ME. Appeals
Court of of Kentucky.
Dec. 2005. parties will be referred to their ini- the minor child. family protect tials or status to the interests of notes parties charge and arm the elect- their duties Elections not to count to be Stephenson’s votes court’s refusal allow is void. deprive seated has served to the 37th Sen- representation atorial in the District IV. CONCLUSION Senate.11 We should pure admit this is a remedy exclusively lies in the Where political question, that, such, we government, hands another branch of cannot answer it. That task is left here, court the case circuit Legislature itself. And if people, case, In such whom even address the issue. power all the this Commonwealth derives,kk do Legislature’s not like the an the Court of as whole “no Justice swer, they may act through to correct Thus, act at all.”mm political process, they are the ulti court lacked the con- power circuit even to government. mate check on abuse case, grant sider much Woodward’s less to Thus, wholly to resolve this temporary injunction, order political ultimately body issue lies case, issued other than one dis- politic. however, majority opinion, jurisdiction, miss for lack of is void. Be- guise under the maintaining the status majority long- cause the disregards quo, ignores these democratic principles standing by allowing rule the Franklin by allowing the circuit court continue