COMMON CAUSE OF KENTUCKY v. COMMONWEALTH OF KENTUCKY, OFFICE OF THE GOVERNOR, ex rel. ERNIE FLETCHER, ET AL.
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RENDERED:
SEPTEMBER 17, 2004; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2004-CA-001661-I
COMMON CAUSE OF KENTUCKY
v.
MOVANT
ON MOTION FOR RELIEF PURSUANT TO CR 65.07
FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 04-CI-00719
COMMONWEALTH OF KENTUCKY,
OFFICE OF THE GOVERNOR,
ex rel. ERNIE FLETCHER, ET AL.
RESPONDENTS
OPINION AND ORDER
DISMISSING MOTION UNDER CR 65.07
** ** ** ** **
BEFORE:
DYCHE, JOHNSON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
The 2004 General Assembly adjourned its regular
session without having enacted an omnibus appropriation for the
Executive Branch of Kentucky’s government.
Common Cause of
Kentucky, a non-profit, non-partisan association of citizens and
taxpayers1 that seeks, in its own words, “to hold elected leaders
accountable to the public interest,” contends that the Executive
Branch’s expenditure of funds in the absence of a legislative
1
The association claims a membership of 1,000 Kentuckians.
appropriation offends our state constitution.
It seeks an order
prohibiting the State Treasurer from disbursing funds to the
Executive Branch.
The Franklin Circuit Court denied Common
Cause’s motion to that end, and Common Cause has sought relief
from this Court.
Because the order Common Cause has asked us to
review is interlocutory and not otherwise reviewable, we are
compelled to dismiss the association’s request for relief.
When the General Assembly adjourned without providing
an appropriation for the Executive Branch, the Attorney General,
anticipating the Governor’s assertion of emergency spending
powers, petitioned the Franklin Circuit Court for a declaration
of rights establishing the limits of any such executive
authority.
Resolution of that petition is currently proceeding
in the circuit court.
On June 28, 2004, the Governor promulgated Executive
Order 2004-650, in which he declared a state of emergency and
asserted authority under sections 69 and 81 of our state
constitution “to cause the expenditure from the State Treasury
of such available funds as may be necessary for the operation of
government and the execution of the laws of the Commonwealth by
the Executive Branch.”
The executive order purports to
authorize the Secretary of the Finance and Administration
Cabinet to issue warrants “for the payment of all claims as may
be made by the Executive Branch of government” under a so-called
2
Public Services Continuation Plan, the Governor’s outline of
Executive Branch functions during the state of emergency.
On
June 30, 2004, the Franklin Circuit Court ordered that the
Governor’s plan be implemented for the first quarter of fiscal
year 2004-2005, from July 1 through September 30.
By order entered that same day, June 30, 2004, the
circuit court permitted Common Cause’s intervention.
On August
2, 2004, Common Cause moved for an order prohibiting the State
Treasurer, Jonathan Miller, from releasing unappropriated funds
to the Executive Branch after September 30, 2004.
its motion as one “for [a] restraining order.”
It captioned
The trial
court’s August 13, 2004, order denying the motion states that
the relief sought was “a restraining order,” and applies the
standard (“immediate and irreparable injury”2) against which
restraining-order requests are judged.
It is from that order
that Common Cause has sought review.
With exceptions not pertinent here, this Court’s
authority is limited to the review of circuit court judgments
and orders that are final3 or that are otherwise made reviewable
by statute or rule.4
If the order from which review is sought is
2
CR 65.03.
3
CR 54.
4
Hook v. Hook, Ky., 563 S.W.2d 716 (1978).
3
not final or otherwise immediately reviewable, then the Court is
required, on its own motion if need be, to acknowledge its lack
of authority and to dismiss the appeal.5
Concerned that the
order from which Common Cause was seeking relief was not
reviewable under CR 65.07, this Court asked the parties to
submit a supplemental memorandum on the issue.
Having
considered the pleadings and the oral arguments of counsel, we
are convinced that Common Cause’s attempt to seek review under
CR 65.07 must be dismissed.
The civil rules provide for both restraining orders
and temporary injunctions, and both are warranted to prevent
irreparable injury during the pendency of a lawsuit.
Restraining orders are typically sought near the commencement of
proceedings and may be issued ex parte under certain
circumstances.6
A temporary injunction may be issued only after
a hearing and only upon a showing of continuing irreparable
injury or other conduct by the adverse party apt to render a
final judgment in the suit ineffectual.7
Orders granting or
denying either form of relief are interlocutory and so may not
be appealed as final.
CR 65.07, however, provides that a party
5
Hook v. Hook, supra; Francis v. Crounse Corporation, Ky. App.,
98 S.W.3d 62 (2002).
6
CR 65.03.
7
CR 65.04.
4
adversely affected by an order granting, denying, modifying, or
dissolving a temporary injunction may “move the Court of Appeals
for relief.”
The rules do not provide for appellate relief from
the grant or denial of a restraining order.
If the trial court’s order means what it says and is
the denial of a restraining order, then it is not final or
otherwise reviewable and thus is not within this Court’s
authority to review.
Common Cause contends, however, that the
relief it sought in the trial court was not a restraining order
but a temporary injunction.
It concedes that in its initial
motion it sought a restraining order, but asserts, as the record
indicates, that it later attempted to amend that motion to seek
an injunction.
Unfortunately, the motion to amend referred to
and adopted the original caption referring to a restraining
order.
The trial court heard arguments on the motion on
August 11, 2004, and the parties have represented that they
addressed the motion as one for an injunction.
Nevertheless,
the court did not hear proof, and its order does not include
findings of fact and conclusions of law, as are required in an
order granting or denying a temporary injunction.8
8
CR 65.04(5).
5
We are aware that the civil rules are intended to
facilitate, not to hinder, consideration of a case’s merits9 and
that courts may and should see through superficial form to
underlying substance.10
But it is no less true that our
substantive rights, even the most fundamental ones, require for
their protection and vindication an effective system of
procedural rules.11
We are convinced that, notwithstanding
whatever may have been the parties’ assumptions about the relief
Common Cause sought, the trial court addressed the association’s
motion as one for a restraining order.
Its denial of the
motion, in substance as well as in form, was the denial of a
restraining order, not an injunction.
If this was not a result
Common Cause expected, the burden was on it to seek
clarification from the trial court.
Because the denial of a restraining order is neither a
final order nor an order that CR 65.07 makes otherwise
reviewable, we must, and do hereby, DISMISS Common Cause’s CR
65.07 motion.
9
Ready v. Jamison, Ky., 705 S.W.2d 479 (1986).
10
Cargo Truck Leasing Company v. Piper, Ky., 394 S.W.2d 472
(1965).
11
Brown v. Commonwealth, Ky., 551 S.W.2d 557 (1977).
6
ALL CONCUR.
/s/ Wm. L. Knopf______
JUDGE, COURT OF APPEALS
ENTERED: September 17, 2004
PLEADINGS FOR MOVANTS:
PLEADINGS FOR RESPONDENTS:
Richard V. Beliles
Counsel for Common Cause of
Kentucky
Prospect, KY
Sheryl G. Snyder
Jason P. Renzelmann
Frost Brown Todd LLC
Louisville, KY
ORAL ARGUMENT FOR MOVANTS:
John C. Roach
General Counsel
Office of the Governor
Frankfort, KY
Richard V. Beliles
Prospect, KY
ORAL ARGUMENT FOR RESPONDENTS:
Sheryl G. Snyder
Louisville, KY
7
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