LEE JACKSON; JAMES TERRY; KEN GRANT; and DONALD VINSON v. HONORABLE PAUL E. PATTON, OF KENTUCKY); and ROBERT S. PETERS, CABINET)
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RENDERED:
December 31, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-2790-MR
LEE JACKSON;
JAMES TERRY;
KEN GRANT; and
DONALD VINSON
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
CIVIL ACTION NO. 96-CI-001346
HONORABLE PAUL E. PATTON,
(GOVERNOR OF THE COMMONWEALTH
OF KENTUCKY); and
ROBERT S. PETERS,
(SECRETARY OF THE PERSONNEL
CABINET)
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI and SCHRODER, Judges.
GUIDUGLI, JUDGE.
Appellants, Lee A. Jackson, James I. Terry,
Ken Grant, and Donald Vinson (collectively Jackson) appeal from
an order of the Franklin Circuit Court entered October 7, 1996,
which dismissed their declaratory judgment action against Paul
Patton, Governor of the Commonwealth of Kentucky, and Robert S.
Peters, Secretary of the Personnel Cabinet (collectively Peters).
We affirm.
Appellants, all of whom are Kentucky residents,
taxpayers, and classified state employees as defined by
Chapter 18A of the Kentucky Revised Statutes (KRS) filed a
complaint for declaratory judgment and request for permanent
injunction with the trial court on April 17, 1996.
In the
complaint, Jackson sought a judgment holding that a portion of
KRS 18A.140(4) was unconstitutional and an injunction prohibiting
enforcement of the statute against them.
KRS 18A.140(4) provides
in pertinent part:
No employee of the classified service...shall
be a member of any national, state or local
committee of a political party, or an officer
or member of a committee of a partisan
political club, or a candidate for nomination
or election to any paid public office, or
shall take part in the management or affairs
of any political party or in any political
campaign, except to exercise his right as a
citizen to privately express his opinion and
to case his vote. (emphasis added).
Under KRS 18A.990(3), any classified employee who wilfully
violates KRS 18A.140 is guilty of a misdemeanor, is subject to a
sentence of thirty days to six months in jail, must forfeit his
position, and is ineligible for rehiring by the Commonwealth for
one year.
Jackson complains that the underlined portion of KRS
18A.140(A) is unduly vague and overbroad and that it chilled his
constitutionally guaranteed right to free speech.
Attached to the complaint were four identical
affidavits executed by each appellant.
Each affidavit stated:
I am an employee of the Commonwealth of
Kentucky, serving in the classified service
under the provisions of Chapter 18A, Kentucky
Revised Statutes. As a registered voter, I
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want to express freely and openly my
political views, including the endorsement of
particular candidates for election this fall,
to whomever I choose, wherever I choose,
whenever I choose, without the threat of
termination, ineligibility for state
employment, and jail time, as provided in KRS
18A.990(3).
I understand and agree that I may not and will not be a member
of any national, state, or local committee of a political party;
or an officer or member of a committee of a partisan political
club; or a candidate for nomination or election to any paid
public office; or take part in the management or affairs of any
political party or in any political campaign, as provided in KRS
18A.190(4). Unless enjoined by this Court, however, I fear that
the Commonwealth of Kentucky, through its duly appointed
representatives will take actions against me if I openly express,
outside the workplace, my views on the issues which affect state
employees and the views of the various candidates seeking
political office at both the state and national level.
Jackson also filed a motion for temporary injunction on
September 17, 1996.
In the memorandum in support of the motion,
Jackson argued:
The concern with the statute rests with
the meaning of the phrase that an employee
may "exercise his right as a citizen
privately to express his opinion and to cast
his vote." The Plaintiffs and other
classified employees need to be able to know
what is permitted without running the risk of
being terminated for violation of this
provision and being prohibited from
reapplying for state employment for a period
of one year following termination. KRS
18A.140(4) is vague and overbroad, and
restricts the Plaintiffs' freedom of speech
in violation of the Constitutions of Kentucky
and the United States.
Peters filed a memorandum in opposition to Jackson's
motion on September 25, 1996, arguing that pursuant to Maupin v.
Stansberry, Ky. App., 575 S.W.2d 695 (1978), Jackson was not
entitled to a temporary injunction.
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Peters filed an answer to
Jackson's complaint on October 7, 1996, wherein he contended that
Jackson failed to show the existence of an actual justiciable
controversy between the parties sufficient enough to invoke the
jurisdiction of the Court.
The trial court held a hearing on Jackson's motion for
temporary injunction on September 25, 1996.
At the hearing,
Jackson conceded that to his knowledge no classified employee had
been disciplined or fired for expressing a political opinion and
that the Commonwealth had neither threatened nor taken any action
against them.
Jackson also presented no acts which he sought to
engage in which he feared would bring reprisal, but only
expressed a generalized fear of prosecution.
On October 7, 1996, the trial court entered an order in
which it sua sponte dismissed Jackson's complaint on the ground
that it failed to present a justiciable controversy.
In its
order the trial court held:
While Plaintiffs have said that they fear
punishment under the statute, they have not
shown that their jobs are actually in
jeopardy because of their political speech.
"[C]ourts are not provided for the settlement
of arguments or differences of opinion, but
actual controversies involving legal rights."
Kelly v. Jackson, Ky., 268 S.W. 539, 540
(1925); see Veith, 355 S.W.2d at 297.
Plaintiffs have conceded that the state
has taken no action against them under the
statute. The fact that Plaintiffs may at
some time in the future be punished under the
statute does not create an actual and
justiciable controversy at the present time
and under the present circumstances.
*
*
*
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Defendants presented evidence at the
hearing that, under former law, the Opinions
of the Attorney General (OAG) outlined the
specific acts which may be punished under the
statute. Further, it was shown that the
Personnel Cabinet compiled these opinions in
the form of a memorandum for employees, and
represented this memorandum as a guideline
for what political activities were and were
not acceptable.
While it is true that the OAG opinions are
no longer directly controlling as to
permitted conduct, the Defendants claim that
they are still used as guidelines under the
statute and that they have never prosecuted
anyone for conduct which these opinions have
listed as permitted. These opinions do give
Plaintiffs indication as to what activities
are or are not permitted under the statute.
In addition, Plaintiffs have presented no
specific acts of political speech that they
believe will be punished. Given that
Plaintiffs are not even subject of an
investigation into their activities, and that
Defendants have established that there exist
guidelines for determining punishable conduct
under the statute, we find that the
declaration of any possible infringement of
Plaintiffs' constitutional rights in this
action would be speculative and advisory.
On appeal, Jackson contends that under the Declaratory
Judgment Act, their challenge to KRS 18A.140(4) is a justiciable
controversy.
We disagree.
The Declaratory Judgment Act makes it very clear that
plaintiffs seeking a declaratory judgment of their rights must
demonstrate that an actual controversy exists.
and KRS 418.045.
See KRS 418.040
While KRS 418.080 provides that the Declaratory
Judgment Act should be liberally construed in order to afford
"relief from uncertainty and insecurity with respect to rights,
duties and relations," it cannot be used to delineate speculative
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duties and rights even though a controversy may eventually ripen
into a justiciable controversy.
Board of Education of Berea v.
Muncy, Ky., 239 S.W.2d 471, 473 (1951).
This Court has stated in the past that "cases
construing...justiciable controversy appear to be elusive and
difficult to grasp without close analysis."
App., 664 .SW.2d 205, 208 (1984).
Hughes v. Welch, Ky.
However, beginning with Dravo
v. Liberty National Bank and Trust Co., Ky., 267 S.W.2d 95
(1954), courts have specifically held that "a declaratory
judgment should not or cannot be made as to questions which may
never arise or which are merely advisory, or are academic,
hypothetical, incidental or remote, or which will not be decisive
of any present controversy."
Dravo, 267 S.W.2d at 97.
See also,
Barrett v. Reynolds, Ky., 817 S.W.2d 439, 441 (1991); Bischoff v.
City of Newport, Ky. App., 733 S.W.2d 762, 764 (1987).
The fact
that the plaintiff and defendant in a declaratory judgment act
have differing opinions as to their rights under a particular
statute does not, on its own, rise to the level of a justiciable
controversy.
See Jefferson County v. Chilton, Ky., 33 S.W.2d 609
(1930) (holding mere difference of opinion does not constitute
justiciable controversy); Kelly v. Jackson, Ky., 268 S.W. 539
(1925) (holding Declaratory Judgment Act cannot be used to
resolve differences of opinion).
Nor can the Declaratory
Judgment Act be used to "convert courts into a sort of law school
for the instruction of the inquisitive mind."
Crow, Ky., 92 S.W.2d 330, 332 (1936).
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Commonwealth v.
Jackson correctly asserts that an actual controversy
for the purposes of the Declaratory Judgment Act includes a
controversy over present rights, in reliance on KRS 418.045,
which provides that a person whose rights are affected by statute
may seek a declaratory judgment delineating those rights.
However, Jackson conveniently overlooks the fact that under
KRS 418.045, a plaintiff must show that an "actual controversy
exists with respect thereto."
In other words, a plaintiff cannot
merely pluck a statute out of the books and ask the court to
declare what his rights are under the statute.
In this case, Jackson merely alleged in the affidavit
supporting his complaint that he wanted to "express freely and
openly my political views" without threat of penalty under KRS
18A.990(3).
However, Jackson did not specifically set forth the
type of activities he wished to engage in.
Furthermore, and more
importantly, Jackson has conceded that the Commonwealth has
neither threatened nor taken any action against him under
KRS 18A.140(4).
At best, Jackson has alleged nothing more than a
hypothetical scenario of what he feels will happen if he
expresses his political opinions "freely and openly."
Case law
clearly shows that such a claim cannot be the subject of a
declaratory judgment action.
Jackson's reliance on Board of Education of Boone
County v. Bushee, Ky., 889 S.W.2d 809 (1994); Dravo, supra;
Sherrard v. Jefferson County Board of Education, Ky., 171 S.W.2d
963 (1943), and Bischoff, supra, is misplaced.
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None of those
cases involved situations where the plaintiffs were challenging
statutes which subjected them to criminal penalties.
This case is closer to Associated Industries of
Kentucky v. Commonwealth, Ky., 912 S.W.2d 947 (1995).
In that
case, the plaintiff filed a declaratory judgment action which
challenged twenty-four provisions of the Kentucky Code of
Legislative Ethics and the Executive Branch Code of Ethics as
being unconstitutional.
In response to plaintiff's arguments
that the fines and criminal penalties imposed under the two code
provisions for failure to register and report their activities
and interest violated their First Amendment rights of association
and petition, the Court held:
Appellant, as required, is duly registered
with the respective commissions and no
proceeding (adjudicatory/investigatory) is
disclosed to be pending at this time. A
determination of the validity of the
challenged statutory penalties is
speculative.
Associated Industries, 912 S.W.2d at 950.
Jackson's argument is the same as the plaintiffs in
Associated Industries.
He claims that KRS 18A.140(4) and the
penalties have the effect of chilling his exercise of free speech
under the First Amendment.
But under Associated Industries,
absent a showing that some action is pending or threatened
against him for violation of KRS 18A.140(4), a justiciable
controversy does not exist.
We realize that cases involving questions as to
justiciable controversy require the Courts to engage in legal
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hairsplitting to reach a decision.
However, we do not believe
that a claim of possible prosecution where the Commonwealth has
never disciplined any employee for violating KRS 18A.140(4) rises
to the level of a justiciable controversy.
The order of the Franklin Circuit Court is affirmed.
GUDGEL, CHIEF JUDGE, CONCURS.
SCHRODER, JUDGE, DISSENTS.
SCHRODER, JUDGE, DISSENTING.
I believe there is a
justiciable controversy ripe for a decision.
It is not only
unfair, but incomprehensible to require a person to violate a law
in order to test its constitutionality.
Why turn law-abiding
state employees into criminals when we have declaratory judgment
actions?
With a declaratory judgment action, the employee can
question a statute without violating it, without facing a
suspension, without facing jail and/or fines, and without risking
a criminal record and future employability.
The price the
majority is requiring an employee to pay to seek out his/her
rights is too costly.
The fact that no one has been prosecuted yet misses the
point.
There is always a first, or the chilling effect becomes a
deep freeze.
Give the appellants their day in court and get to
the merit of the case.
and merit retention.
Who knows, the law may be constitutional
If so, what are we afraid of?
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BRIEF AND ORAL ARGUMENT FOR
APPELLANTS:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES:
C. David Emerson
Lexington, KY
A. B. Chandler, III
Attorney General
D. Brent Irvin
Stuart W. Cobb
Assistant Attorneys General
Frankfort, KY
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