RONALD McCLURE V. FRANK AUGUSTUS, SHERIFF OF McCRACKEN COUNTY, KENTUCKY ; MERIT BOARD ; DONNIE ROBERTS, CHAIRMAN ; GERALD STEWART, MEMBER ; RONALD ALSTON, MEMBER ; AND CHRISTOPHER SHEA NICKELL, MEMBER
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RENDERED : SEPTEMBER 26, 2002
MODIFIED : OCTOBER 8, 2002
TO BE PUBLISHED
,*uvreme C~uurt of TWenturkU
2001-SC-0028-DG
IDATE10-0
RONALD McCLURE
V.
APPELLAN
ON REVIEW FROM COURT OF APPEALS
1999-CA-2643-MR
McCRACKEN CIRCUIT COURT NO. 1999-CI-0018
FRANK AUGUSTUS, SHERIFF OF
McCRACKEN COUNTY, KENTUCKY ;
MERIT BOARD ; DONNIE ROBERTS,
CHAIRMAN ; GERALD STEWART, MEMBER ;
RONALD ALSTON, MEMBER ; AND
CHRISTOPHER SHEA NICKELL, MEMBER
APPELLEES
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING AND REMANDING
In this case we address the issue of whether the scheme for terminating the
employment of deputy sheriffs established in the Deputy-Sheriff Merit Board statutes .
KRS 70 .260 et sea . , is an unconstitutional violation of the separation of powers
doctrine . We conclude that it is not and, therefore, reverse the Court of Appeals .
I.
Facts and Procedural History
On July 21, 1998, Sheriff Frank Augustus terminated Ronald McClure's
employment as a McCracken County deputy sheriff. McClure subsequently requested
a hearing before the McCracken County Deputy Sheriff Merit Board (Merit Board) to
review Sheriff Augustus's decision . The Merit Board was established pursuant to KRS
70.260(1), which gives permissive authority to the "primary legislative body of each
county" to "enact an ordinance creating a deputy sheriff merit board, which shall be
charged with the duty of holding hearings, public and executive, in disciplinary matters
concerning deputy sheriffs ." Before the Merit Board could hold a hearing on the matter,
Sheriff Augustus filed an action for injunctive relief and declaration of rights in the
McCracken Circuit Court .
The circuit court concluded that the Deputy-Sheriff Merit Board statutes were
unconstitutional and granted injunctive relief. McClure appealed to the Court of
Appeals, which affirmed on grounds that KRS 70 .260 et seg . violated the separation of
powers doctrine . It reasoned that "the dismissing of deputies is the exercise of an
executive power by an independently elected officer [that] the legislative branch may
not usurp . . . without offending Sections 27 and 28 of our constitution ." McClure v.
Augustus , Ky. App., 1999-CA-002643-MR at 10 (December 15, 2000) . We disagree
and, therefore, reverse .
II.
Discussion
Section 99 of the Kentucky Constitution creates the office of county sheriff but is
silent as to the power of that office to employ or to remove deputies . Thus, a sheriff
has no constitutional right of either appointment or removal . Rather, a sheriff has a
statutory right to appoint deputies, KRS 70 .030, and an implied, common-law authority
to appoint deputies, Prater v . Strother , 11 Ky. L. Rptr. 831, 13 S.W. 252, 253 (1890),
which includes the authority to remove deputies at will . Hodges v . Daviess County, 285
Ky. 508, 699, 148 S .W .2d 697 (1941) . The Court of Appeals' holding that a sheriff's
common-law authority to remove deputies necessarily supersedes the legislative
reassignment of that power contained in the Deputy-Sheriff Merit Board statutes is
contrary to well-established law.
In Johnson v. Commonwealth ex rel . Meredith , we addressed the
constitutionality of a legislative act that allowed administrative departments and
agencies to employ their own legal counsel . 291 Ky. 829, 165 S.W.2d 820, 823 (1942) .
The then-sitting Attorney General sued to have the act declared unconstitutional
because it took duties and functions away from his office and reassigned them
elsewhere. Id. The Attorney General argued inter alia that the power to represent the
Commonwealth as sovereign in all operations and forums was an inherent power of the
office of attorney general that could not be delegated to anyone else . Id . at 826. In
rejecting this argument, we stated, "[W]hile the Attorney General possesses all the
power and authority appertaining to the office under common law and naturally and
traditionally belonging to it, nevertheless the General Assembly may withdraw those
powers and assign them to others or may authorize the employment of other counsel
for the departments and officers of the state to perform them ." Id. at 829 (emphasis
added) .
In Brown v. Barkley , we held that the Governor could not transfer legislativelycreated functions from one executive agency to another executive agency without
legislative authority to do so . Ky., 628 S.W.2d 616, 623 (1982). In so holding, we
stated that, if the Governor had the inherent executive power to make the transfers in
question, then that inherent power was subordinate to the will of the General Assembly.
Id . Other cases make clear that the executive power of removal is likewise subordinate
to will of the General Assembly. See , e .g_, McChesney v. Sampson , 232 Ky. 395, 23
S.W.2d 584, 586 (1930) (Governor could not remove his own appointee without
statutory authority) .
Johnson and Brown stand for the proposition that the General Assembly may
take common-law powers away from executive constitutional officers and assign them
to different executive officers or agencies without violating the constitution, which is all
that occurred in this case
In enacting the Deputy-Sheriff Merit Board statutes, the General Assembly
permitted McCracken County to elect to transfer the executive power of removal from
one executive, the sheriff, to another, the Merit Board, which is an administrative
agency that acts in an executive capacity when it makes personnel decisions . See
Meyers v . Chapman Printing Co. , Ky., 840 S .W.2d 814, 820 (1992) (decision-making
performed by an administrative agency is an executive function) ; Gamm v. City of
Covington, 236 Ky. 711, 33 S.W .2d 697, 698 (1930) (board of commissioners acts in
an executive capacity when making appointments pursuant to statutory authority).
Thus, while Sheriff Augustus had the common-law authority to remove McClure at will,
that authority "must yield to the superior policy of legislative enactment . . . ." Com . ex
rel . Cowan v. Wilkinson , Ky., 828 S .W .2d 610, 614 (1992) .
For the reasons set forth above, the decision of the Court of Appeals is hereby
reversed and this case is remanded to the McCracken Circuit Court with instructions to
dissolve its injunction and to vacate its order declaring that the Deputy-Sheriff Merit
Board statutes are unconstitutional .
Cooper, Keller, Stumbo, and Wintersheimer, JJ ., concur. Graves, J ., dissents by
separate opinion, with Lambert, CJ, joining that dissent .
COUNSEL FOR APPELLANT :
Tod D . Megibow
Megibow & Edwards, PSC
P . O . Box 1676
Paducah, KY 42002-1676
COUNSEL FOR APPELLEES :
Mark D. Pierce
535 Broadway
P. O . Box 472
Paducah, KY 42002-0472
COUNSEL FOR AMICI
CURIAE, KENTUCKY STATE
LODGE FRATERNAL ORDER OF
POLICE, INC . ; DEPUTY SHERIFFS'
FOP LODGE NO . 25, INC. ; AND
SHERIFF JOHN E . AUBREY :
Mark L. Miller
Mary Witt Sharp
Priddy, Isenberg, Miller & Meade PLLC
800 Republic Building
429 W . Muhammad Ali Blvd.
Louisville, KY 40202
COUNSEL FOR AMICI CURIAE,
BOONE COUNTY FISCAL COURT
AND SHERIFF MICHAEL HELMIG:
Jeffrey C . Mando
Jennifer L. Langen
Adams, Stepner, Woltermann & Dusing PLLC
40 West Pike Street
P . O . Box 861
Covington, KY 41012-0861
RENDERED : SEPTEMBER 26, 2002
TO BE PUBLISHED
#uVreme Tourt of +`
.entuckLi
2001-SC-0028-DG
RONALD McCLURE
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1999-CA-2643-MR
McCRACKEN CIRCUIT COURT NO. 1999-CI-0018
FRANK AUGUSTUS, SHERIFF OF
McCRACKEN COUNTY, KENTUCKY;
MERIT BOARD ; DONNIE ROBERTS,
CHAIRMAN ; GERALD STEWART, MEMBER ;
RONALD ALSTON, MEMBER ; AND
CHRISTOPHER SHEA NICKELL, MEMBER
APPELLEES
DISSENTING OPINION BY JUSTICE GRAVES
Respectfully, I dissent. The Deputy Sheriff Merit Board statutes encourage the
exercise of arbitrary power in violation of the Kentucky Constitution. These statutes are
so vague and ambiguous that they invite arbitrary enforcement. Their illegitimacy was
so self-evident that the Attorney General, after receiving legally prescribed notice,
chose not to defend their constitutionality .
Section 2 of the Kentucky Constitution provides in unmistakable terms that
"absolute and arbitrary power . . . exists nowhere in a republic . . . . .. Section 2 protects
against vague and conflicting legislation . When the Deputy Sheriff Merit Board statutes
are examined using the criteria of ยง2 of the Kentucky Constitution, they fall far short of
being constitutional . A statute is impermissibly vague if it is written in a manner that
encourages arbitrary and discriminatory enforcement. Walker v . Kentucky Dept Of
Education , Ky.App ., 981 S .W.2d 128 (1998) .
Indeed, even clear and unambiguous
statutes are unconstitutional if they may be enforced in an arbitrary manner.
Commonwealth v. Foley, Ky ., 798 S.W.2d 947 (1990) . The subject statutes miss the
mark when tested by these constitutional standards .
The only clear purpose for the merit board presented by KRS 70 .260 et seq . is
that of holding hearings in disciplinary matters concerning deputy sheriffs . However,
the rest of the statutes lack the detailed instructions and guidelines which must
accompany a delegation power. Several indispensable requirements are lacking . First,
although KRS 70 .270(2) grants power to the merit board to review every action in the
nature of a dismissal, suspension, or reduction made by the sheriff, no standard of
review is mentioned . Second, the statutes do not set forth any procedures for the
board to use concerning its decisions, failing even to specify which party has the burden
of proof at a merit board hearing . Third, while KRS 70.260(3) specifies the number and
selection process for persons to sit on the merit board, there is no requirement that the
persons selected have any legal training or adjudicative experience . Fourth, KRS
70 .273(5) mandates that deputy sheriffs "in a policy-making or confidential position" be
excluded from the merit board system . There is no further guidance on defining "policymaking or confidential" positions, and since all deputies arguably occupy confidential
positions, a patent ambiguity exists . Although the statutes have other deficiencies,
these examples point out the constitutional infirmities. Since the merit board requires
no credentials, has no standard of review to apply, and no guidance concerning the
burden of proof, it is apparent that the indefiniteness of the merit board statute invites
arbitrary decision making .
A "review" of a deputy sheriff's discharge by the merit board appears appealing .
However, as this Court recognized in Puckett v . Miller , Ky ., 821 S .W.2d 791(1992), the
absence of evidence and decision-making standards renders the right of review illusory .
With nothing to guide them, personal opinions will carry the day for the politicallyappointed merit board members, and inconsistent, capricious decisions will likely result .
Further, discharged deputy sheriffs have an adequate remedy at law for any improper
firing . They may bring suit in circuit court if they have been discriminated against or
otherwise unlawfully discharged . Consequently, the court system provides the only
legitimate review available for a discharged deputy sheriff .
This Court is obligated to construe statutes in a constitutional light whenever
possible . However, we must deal with the statutes as written . Although it is
conceivably possible to rewrite the statutes so that they satisfy the confines of the
constitution, this Court lacks authority to add the words which would cure the statute's
defects . Diemer v. Commonwealth Transportation Cabinet , Ky., 786 S.W.2d 861
(1990) ; Musselman v. Commonwealth , Ky., 705 S.W.2d 476 (1986) . While we may
construe an ambiguous statute to have a constitutional meaning, we cannot cure these
unconstitutionally vague statutes by fleshing out the necessary guidelines and
standards which were omitted by the legislature . It is not for this Court to speculate as
to what guidelines the legislature would lay down for the merit board . That is within the
exclusive dominion of the legislature .
The Deputy Sheriff Merit Board, as authorized by KRS 70 .260-273, violates
Sections 27 and 28 of the Kentucky Constitution because it allows an unelected group
of political appointees to infringe upon the constitutionally-elected sheriff's power to
discharge his deputies . This is inconsistent with the Kentucky Constitution .
Sections 27 and 28 of the Kentucky Constitution address the separation of
powers .' Section 27 establishes that the powers of each branch of government will be
distinct and separate, while Section 28 requires each branch of government to refrain
from exercising any power that has been granted to a different branch . A sheriff is an
elected executive officer, and allowing the legislature to usurp his power to discharge
his deputies is an affront to the Kentucky Constitution .
It has long been recognized that the sheriff is not an officer of the state. Shipp v .
Bradley , 210 Ky . 51, 275 S .W. 1 (1925) . The sheriff is, instead, the chief law
enforcement officer of the county, under the executive branch of the county
government . The sheriff's duties require him to perform a wide variety of tasks and, as
such, it is necessary for the sheriff to appoint deputies to act as his agents. Deputies
have historically been employed at the sheriff's will . Hodges v. Daviess County , 285
Ky . 508, 148 S .W.2d 697 (1941) ;
Day v. The Justices of the Fleming County Court , 42
Ky. 198, 3 B. Mon . 198 (1842) . The nature of the office makes it indispensable that the
sheriff have this power because a deputy acts with the full authority of the sheriff, as
evidenced by the fact that the deputy must take the same oath as the sheriff.
Consequently, a sheriff is liable for the acts of his deputies when acting in their official
capacity . This principle is well-settled in our law. West v. Nantz' Administrator , 267 Ky.
'Section 27 . Powers of government divided among legislative, executive and
judicial departments . - The powers of the government of the Commonwealth of
Kentucky shall be divided into three distinct departments, and each of them be confined
to a separate body of magistracy, to wit: Those which are legislative, to one; those
which are executive, to another; and those which are judicial, to another.
Section 28 . One department not to exercise power belonging to another . - No
person or collection of persons, being of one of those departments, shall exercise any
power properly belonging to either of the others, except in the instances hereinafter
expressly directed or permitted .
113, 101 S.W.2d 673 (1937) ; Stephens v . Wilson, 115 Ky. 27,72 S .W. 336 (1903) .
The sheriff is a constitutionally-elected officer who may be removed from office if he
fails to perform his duties . Since the sheriff is responsible as principal for the actions of
his deputies, it follows that the delinquency of his deputies has the potential of leading
directly to the sheriff's removal from office . Consequently, good government requires
that the sheriff retain control over the selection and behavior of his deputies .
The sheriff is an executive official, elected by the citizens of his county. The
legislature, in enacting the subject statutes, has stripped the sheriff of the power to
discharge his deputies and transferred that power to an unelected group of political
appointees . Section 28 of our constitution is clear in its requirement that each branch
of government refrain from exercising power belonging to another branch . The
argument that the language of Section 28 allows the legislature to retain all residual
powers not expressly reserved for another branch fails .
In Sibert v Garrett, 197 Ky. 17,
246 S .W. 455, 457 (1922), this Court clarified the meaning of Section 28 :
In other words, the Legislature may perform all legislative acts not
expressly or by necessary implication withheld from it, but it may not
perform or undertake to perform executive or judicial acts . . . . To adopt the
latitudinous construction that the Legislature may do anything not
expressly or impliedly prohibited by the Constitution would, to our minds,
at once destroy the separation of the powers of government into the three
great departments .
It is clear that discharging a deputy sheriff is an executive act, and the power to
discharge is reserved for the sheriff alone . The legislature lacks legislative authority to
give the power of removal to a Deputy Sheriff Merit Board . Yet the subject statutes
seek to do just that. KRS 70 .260 et seq . i s in violation of Sections 27 and 28 of our
Constitution and should be stricken down as unconstitutional .
For the foregoing reasons, I would affirm the decision of the Court of Appeals .
Lambert, C .J ., joins this dissenting opinion .
#upreme Tourt of i-KenturkV
2001-SC-0028-DG
RONALD McCLURE
V
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1999-CA-2643-MR
McCRACKEN CIRCUIT COURT NO . 1999-CI-0018
FRANK AUGUSTUS, SHERIFF OF
McCRACKEN COUNTY, KENTUCKY;
MERIT BOARD ; DONNIE ROBERTS,
CHAIRMAN ; GERALD STEWART, MEMBER ;
RONALD ALSTON, MEMBER ; AND
CHRISTOPHER SHEA NICKELL, MEMBER
APPELLEES
ORDER MODIFYING OPINION ON THE COURT'S OWN MOTION
On the Court's own motion, the Opinion of the. Court rendered herein on
September 26, 2002, is modified by substitution of new pages one and two, hereto
attached, in lieu of pages one and two of the Opinion as originally rendered . Said
modification does not affect the holding of the Opinion or the dissent, and is made to
correct a typographical error.
Entered : October 8, 2002 .
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