ROBERT A . JONES ; CYNTHIA D WHITE, LARRY WHITE, AND REGINALD P . YOUNGBLOOD V FRANKLIN CIRCUIT COURT NOS . HON . ROGER L . CRITTENDEN, JUDGE, FRANKLIN CIRCUIT COURT ; KENTUCKY DEPARTMENT OF MILITARY AFFAIRS ; AND KENTUCKY NATIONAL GUARD
Annotate this Case
Download PDF
AMENDED : MARCH 5, 2003
RENDERED: NOVEMBER 21, 2002
TO BE PUBLISHED
Suprmir 6T urf v f ~R
2001-SC-0761-MR
ROBERT A . JONES; CYNTHIA
D
WHITE, LARRY WHITE, AND
REGINALD P. YOUNGBLOOD (REAL PARTIES IN INTEREST)
V
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
2001-CA-0889-OA
FRANKLIN CIRCUIT COURT NOS .
99-CI-00311 . 99-CI-00954, 99-CI-00956, AND 99-CI-01093
HON . ROGER L. CRITTENDEN, JUDGE,
FRANKLIN CIRCUIT COURT;
KENTUCKY DEPARTMENT OF
MILITARY AFFAIRS ; AND
KENTUCKY NATIONAL GUARD
APPELLEES
OPINION OF THE COURT BY JUSTICE GRAVES
AFFIRMING
. FACTS
Appellants/Real Parties in Interest, Robert A . Jones, Cynthia White, Larry White,
and Reginald Youngblood, are current or former members of the Kentucky National
Guard, who have brought claims for discrimination and retaliation pursuant to the
Kentucky Civil Rights Act, Ky . Rev . Stat . (KRS) 344 .010, et se g . The Kentucky National
Guard and Kentucky Department of Military Affairs moved the Franklin Circuit Court for
summary judgment, arguing that the actions raise a federal constitutional question
which is preempted from state regulation and is not justiciable or reviewable in a civilian
court by virtue of the Supremacy Clause and the Militia Clause of the United States
Constitution . The circuit court denied the motion.
The Kentucky Department of Military Affairs and Kentucky National Guard filed a
petition for writ of prohibition or mandamus pursuant to CR 76 .36 requesting that the
Court of Appeals direct the trial judge, Honorable Roger L. Crittenden, "to refrain from
compelling petitioners to stand trial" and to direct him to dismiss the claims . The Court
of Appeals granted the writ. We affirm the decision of the Court of Appeals .
ll . THE NATIONAL GUARD IS AN INTEGRAL PART OF THE FEDERAL SYSTEM
The National Guard has a unique status in our federal system and a vital role in
our national defense . The militia, which is the military forebear of the National Guard, is
expressly provided for in the Constitution : "A well regulated Militia . . . [is] necessary to
the security of a free State . . . . "' Each state is thus empowered to maintain a militia
and each state in fact maintains a militia, the modern equivalent of which is the National
Guard .' Control of the Guard is reserved to the states, except when the Guard is called
into federal service, at which time the Guard becomes subject to exclusive federal
contro1 . 3
Congress first provided for the integration of militia and federal military forces in
the National Defense Act of 1916, which made the National Guard part of the Regular
1 U.S . Const . amend . II . The second amendment provides in full : "A well
regulated Militia, being necessary to the security of a free State, the right of the people
to keep and bear Arms, shall not be infringed ."
2 Maryland v. United States , 381 U .S . 41, 46-47, 85 S.Ct. 1293, 1297, 14
L.Ed .2d 205 (1965), vacated on other pro
ands, 382 U .S . 159 (1965) .
3 "The President shall be Commander in Chief of the. . . Militia of the several
States when called into actual Service of the United States . . . . " U .S . Const., art. II,
§ 2 . Congress is tasked with "governing such Part of [[the militia] as may be employed
in the Service of the United States ." Id ., art . I, § 8, cl . 16. Congress is authorized to
"provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions ." Id., art. I, § 8, cl. 15 .
Army.'
Under the 1916 Act, all members of the National Guard were required to take
oaths to obey both the President and the governors of their states . 5
In 1933, Congress made the National Guard a permanent part of the federal
military by creating a "dual-enlistment" system :
It did this by conferring a new status on the Guard, by constituting it a
reserve component of the Army, to be known as the National Guard of the
United States . In its militia capacity, the National Guard was organized
and administered under the militia clause of the Constitution, and
available only for limited duties. . . . [I]n its capacity as a reserve
component of the Army, [the National Guard] was organized and was to
be administered under the army clause .
As a result of having constitutional moorings in both the Militia Clause and the
Armies Clause, the Guard's role in our federal system is uniquely dualistic :
This role does not fit neatly within the scope of either state or national
concerns; historically the Guard has been, and today remains, something
of a hybrid. Within each state the National Guard is a state agency, under
state authority and control . At the same time, the activity, makeup, and
function of the Guard is provided for, to a large extent, by federal law.'
Accordingly, the National Guard has today a dual status, and every Guardsman is a
reservist in the United States Uniformed Services as well as a militiaman ."
In 1970, the National Guard was incorporated into the Total Forces Concept,
which determines the total number of military personnel needed for our national
U.S . Const., art . I, § 8, cl. 15 ; see also Johnson v. Powell , 414 F.2d 1060, 1063
(5th Cir. 1969) .
Dukakis v. Department of Defense , 686 F. Supp. 30, 34 (D . Mass . 1988), aff'd ,
859 F .2d 1066 (1st Cir. 1988), cert. denied , 490 U.S . 1020 (1989) .
J
' Weiner, "The Militia Clause of the Constitution," 54 Harv. L. Rev. 181, 208
(1940) .
' Johnson v. Orr, 780 F .2d 386, 388 (3d Cir. 1986) (quoting New Jersey Air
National Guard v. Fed . Labor Rel. Auth . , 677 F .2d 276, 278-79 (3d Cir. 1982)) .
Dukakis , supra .
-3
defense and military commitments .' Thus, the Guard plays a vital role in the nation's
military readiness program.
Due to the Guard's vital role in the Total Forces Concept, the Federal
Government must ensure the Guard maintains a constant state of military readiness . To
this end, the Constitution empowers Congress to provide for organizing, arming, and
disciplining the Militia, and for governing such part of them as may be employed in the
service of the United States, reserving to the states respectively, the appointment of the
officers, and the authority of training the militia according to the discipline prescribed by
Congress.'° Pursuant to this authority, Congress has enacted legislation for equipping,
training, and disciplining state Guard units so that Guardsmen are "an integral part of
the first line defenses of the United States ."" Congress also has created the National
Guard Bureau, an adjunct of the Departments of the Army and the Air Force, to oversee
state Guard units and to ensure compliance with federal statutory and regulatory
requirements regarding military training, discipline, and readiness . '2 State Guard units
that fail to comply are subject to forfeitures of federal funds and benefits ." Thus, the
9
See Bruton v. Schnipke , 370 F . Supp. 1157, 1163 (E.D . Mich. 1974) .
"U .S . Const ., art. I, 8, cl. 16.
',- 32 U .S .C . 102 (1982) . Congress has provided that Guardsmen's training and
discipline must conform to that of their federal counterparts, see 32 U.S.C. § 501
(1982), and that Guardsmen are subject to the Uniform Code of Military Justice . See id .
§§ 326-333 . Additionally, Congress has authorized the President to issue regulations
and orders necessary to organize, discipline, and govern the National Guard. See id . §
110. See also 10 § U .S .C. 105 (1982) (authorizing inspections of National Guards by
Secretary of the Army and Secretary of the Air Force to ensure Guard units are properly
organized, uniformed, armed, equipped, trained, and instructed) .
,2
10 U .S.C . § 3040 (1982) .
11 Section 108 of Title 32 provides : If, within a time to be fixed by the President,
a state does not comply with or enforce a requirement of, or regulation prescribed
National Guard stands ready to provide "trained units and qualified persons . . . for
active duty in the armed forces, in the time of war or national emergency and at such
other times as the national security requires .""
III . NONJUSTICIABILITY
As early as 1953, the Supreme Court determined that "[t]he military constitutes a
specialized community governed by a separate discipline from that of the civilian ."'5
Since that time, in reviewing issues which deal with the armed forces, the Supreme
Court has regularly referred to the military as a "separate community" and reviewed
claims against the military differently from claims against any other governmental
agency . Restrictions on constitutional rights which might have no rational basis in
civilian society will survive in the military context because the unique war-making
purpose of the armed forces makes such restrictions compelling ." This attitude
regarding constitutional rights is based upon the need to maintain an effectively
operational fighting force ." The distinct purpose of the armed forces is to protect the
under, this Title its National Guard is barred, wholly or partly as the President may
prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.
32 U .S .C. 108 (1982) .
14
15
10 U.S.C. § 262 (1982) .
Orloff v. Willouahby, 345 U .S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed 842 (1953) .
See Chappell v . Wallace, 462 U .S. 296, 300, 103 S.Ct. 2362, 2365-66, 76
L .Ed.2d 586 (1983) ("[N]o military organization can function without strict discipline and
regulation that would be unacceptable in a civilian setting . . . . [C]enturies of experience
have developed a hierarchical structure of discipline and obedience to command,
unique in its application to the military establishment and wholly different from civilian
patterns ." Id .) .
16
Parker v. Levy , 417 U .S . 733, 94 S .Ct. 2547, 41 L .Ed .2d 439 (1974) (the
military effectively prohibited a member from criticizing the American role in the Vietnam
War).
17
United States, and its interests, against the actions of foreign nation- states, through the
use of force ." It is because of this unique purpose that the military demands a respect
for duty and a commitment to discipline that is without counterpart in civilian society ."
Military effectiveness in wartime, however, requires peacetime preparation . In order for
soldiers, airmen and seamen to utilize those qualities necessary for success on the
battlefield, with all its stress and anxiety, those qualities must be instinctive . Success in
war is therefore contingent upon the development of those qualities in peacetime. The
Supreme Court has stated that, "to accomplish its mission the military must foster
instinctive obedience, unity, commitment and esprit de corps."°
This creates a "necessity," which the Supreme Court has recognized, for training
and organizational latitude when dealing with military personnel and the military
infrastructure . "The inescapable demands of military discipline and obedience to orders
cannot be taught on battlefields ; the habit of immediate compliance with military
procedures and orders must be virtually reflex with no time for debate or reflection . . . .
(C)onduct in combat inevitably reflects the training that precedes combat.""
The Supreme Court has long recognized that:
" In United States ex rel. Toth v Quarles , the Supreme Court said that the
primary business of the military is "to fight or be ready to fight wars should the occasion
arise." 350 U .S. 11, 17, 76 S .Ct. 1, 5, 100 L.Ed . 8 (1955) .
" Schlesinger v . Councilman , 420 U
.S . 738,757, 95 S.Ct. 1300, 1313, 43
L . Ed .2d 591 (1975) .
''Goldman v. Weinberger , 475 U .S . 503, 507, 106 S .Ct. 1310, 1313, 89 L.Ed .2d
478 (1986) ; see also Chappell , supra ; Greer v. Spock , 424 U .S . 828, 843-44, 96 S .Ct.
1211, 1220, 47 L.Ed .2d 505 (1976) (Powell, J ., concurring) .
' 1 Chappell , supra , 462 U .S . at 300, 103 S .Ct. at 2366 (citations omitted); see
also Goldman , 475 U .S . at 508, 106 S .Ct . at 1313 ("the necessary habits of discipline
and unity must be developed in advance of trouble .") .
[T]he military is, by necessity, a specialized society separate from civilian
society . We have also recognized that the military has, again by
necessity, developed laws and traditions of its own during its long history .
The differences between the military and civilian communities result from
the fact that 'it is the primary business of the armies and navies to fight or
be ready to fight wars should the occasion arise ."'
A soldier in the Army is not free to quit his job, cannot be fired, and is subject to military
discipline and military law.
The climate of "discipline and unquestioned obedience" necessary to sustain an
effective fighting force is determined primarily by the professional judgments and
experience of people familiar with military needs, and the Court has determined itself
incapable of mastering the complexities which are considered when balancing
constitutional rights against military functional necessity ." In Chappell , the United
States Supreme Court stated that "the special relationships that define military life have
'supported the military establishment's broad power to deal with its own personnel . The
most obvious reason is that courts are ill- equipped to determine the impact upon
discipline that any particular intrusion upon military authority might have .""'
It would be imprudent to allow soldiers to sue superior officers because discipline
and effectiveness would be seriously damaged . Permitting judicial intervention into
such clearly administrative and personnel decisions would destroy the legitimacy and
2= Parker, supra , 417 U.S. at 743, 94 S .Ct. at 2555-56 (quoting Quarles , supra ,
350 U .S. at 17; 76 S.Ct. at 5).
James M. Hirschorn, The Separate Community : Military Uniqueness and
Servicemen's Constitutional Rights, 62 N .C .L. Rev. 177, note 4, at 203 (1984) .
23
-°- 462 U .S . 305, 103 S .Ct . at 2368 (quoting Warren, The Bill of Rights and the
Military, 37 N .Y. U . L. Rev . 181, 187 (1962) .
authority of command ."
Power to regulate the militia was conferred by the Constitution, not on the courts,
but upon Congress and the President . Judges are not given the task of running the
Army. The responsibility for creating channels through which such grievances can be
considered and fairly resolved rests upon the Congress and upon the President of the
United States and his subordinates . "Orderly government requires that the judiciary be
as scrupulous not to interfere with legitimate Army matters as the Army must be
scrupulous not to intervene in judicial matters . , 26
As stated in Parker v. Levy , supra :
The armed forces depend upon a command structure that at times must
commit men to combat, not only hazarding their lives but ultimately
involving the security of the Nation itself. Speech that is protected in the
civil population may nonetheless undermine the effectiveness of response
to command. If it does, it is constitutionally unprotected .
IV. CONSTITUTIONAL LIMITATION
The Constitution of the United States, Article VI, provides in pertinent part : "This
Constitution, and the Laws of the United States which shall be made in Pursuance
thereof[,) . . . shall be the supreme Law of the Land ; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding ."
'' Problems or complaints which arise under such circumstances have been
provided for by Congress in 10 U.S .C. §938, Art. 138 of U.C .M .J .
"' Orloff , supra, 345 U .S. at 94, 73 S .Ct . at 540 .
"417 U .S. at 759, 94 S .Ct . at 2563 (citations omitted .) .
-8-
The Constitution of the United States, Article I, Section 8, clause 16, gives
Congress the power:
To provide for organizing, arming, and disciplining, the Militia, and for
governing such Part of them as may be employed in the Service of the
United States, reserving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the discipline
prescribed by Congress[.]
The Constitution of Kentucky, Section 220, gives to the Kentucky Legislature the
power to maintain and regulate the "Militia ." However, Section 221 includes the
following directions : "The organization, equipment and discipline of the militia shall
conform as nearly as practicable to the regulations for the government of the armies of
the United States ."
In Perpich v. Dep't of Defense28, the United States Supreme Court defined the
status of a state National Guard :
Since 1933, all persons who have enlisted in a State National
Guard unit have simultaneously enlisted in the National Guard of the
United States .
In a sense all of them now must keep three hats in their closets -- a
civilian hat, a state militia hat, and an army hat - only one of which is worn
at any particular time . When the state militia hat is being worn, 'drilling
and other exercises' . . . are performed pursuant to 'the Authority of training
the Militia according to the discipline prescribed by Congress .'
[The Militia Clause] merely recognizes the supremacy of federal power in
the area of military affairs .
[T]he constitutional allocation of powers in this realm [gives] rise to a
2
'
496 U .S . 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990) .
-9-
presumption that federal control over the Armed Forces [is] exclusive ."
In Feres v. United States ," service members sustained injuries in the course of
military service due to the negligence of other service members. The United States
Supreme Court held that the government is not liable for injuries to servicemen where
the injuries "arise out of or are in the course of activity incident to service ." Citing to
United States v. Standard Oil Co.,` the Feres Court stated:
To whatever extent state law may apply to govern the relations between
soldiers or others in the armed forces and persons outside them or
nonfederal governmental agencies, the scope, nature, legal incidents and
consequence of the relation between persons in service and the
Government are fundamentally derived from federal sources and
governed by federal authority . 13
The Feres Court pointed out that no American law had ever permitted a soldier
to recover for negligence either against his superior officers or the Government he was
serving, and declined to impute to Congress such a radical departure from established
law in the absence of express Congressional mandates .34 Feres not only bars intra
military damage actions but also protects the integrity of the command relationship by
avoiding judicial intrusion into the military structure absent an explicit congressional
mandate.
In addressing this same issue, the Sixth Circuit Court of Appeals stated :
29
Id. at 345-353, 110 S.Ct. at 2425-2429 .
30
340 U .S . 135, 71 S.Ct. 153, 95 L .Ed . 152 (1950) .
31
Id . at 146, 71 S .Ct. at 159 .
32
332 U.S. 301, 305-306, 67 S .Ct. 1604, 1607, 91 L.Ed . 2067 (1947) .
33
Feres , su ra, 340 U .S. at 143-144, 71 S .Ct. at 159.
34
Id. at 141-142, 71 S .Ct. at 157 .
-lo-
Consistent with the reasoning in Chappell , courts of appeals have
consistently refused to extend statutory remedies available to civilians to
uniformed members of the armed forces absent a clear direction from
Congress to do so . Thus, uniformed members of the armed forces have
no remedy under Title VII of the Civil Rights Act of 1964 . 35
Although Congress has not enacted statutes expressly preempting state
regulation of discrimination suits against military authorities, the federal scheme
described above strongly suggests that the field has been impliedly preempted by
federal law. Additional support for this conclusion is found in the long line of United
States Supreme Court cases beginning with Feres and continuing with its progeny on a
consistent pattern of expansion of the Feres doctrine . Language authored by the Sixth
Circuit emphasizes this point :
Review of these Supreme Court precedents makes it clear that in recent
years the Court has embarked on a course dedicated to broadening the
Feres doctrine to encompass, at a minimum, all injuries suffered by
military personnel that are even remotely related to the individual's status
as a member of the military, without regard to the location of the event,
the status (military or civilian) of the tortfeasor, or any nexus between the
injury-producing event and the essential defense/combat purpose of the
military activity from which it arose."
The unique and delicate relationship between uniformed personnel and their
superiors would be negatively affected if civilian courts, federal or state, were
empowered with the jurisdiction to adjudicate discrimination claims brought by
servicemen, which would necessarily involve testimony by the officers accused of
misconduct and would require the court to analyze military decisions taken with regard
to the controversy . As decided in Chappell , supra , civilian courts are "ill-equipped" to
evaluate the impact of such actions nonmilitary discipline and "must, at the very least,
" Coffman v. State of Michigan , 120 F .3d 57, 59 (6th Cir. 1997) .
6
Major v. United States , 835 F.2d 641, 644 (6th Cir. 1987) .
-11-
hesitate long before entertaining a suit which asks the court to tamper with the
established relationship between enlisted military personnel and their superior officers ;
that relationship is at the heart of the necessary unique structure of the military
establishment ." a'
We doubt that Congress wanted such a scenario . Moreover, the
real parties in interest do have a remedy by availing themselves of the provisions of the
National Guard Military Discrimination Complaint System.
The Supreme Court's rationale in Feres , supra , and its progeny proscribe suits
based on civil rights statutes . The Feres doctrine generally bars soldiers' suits for
service-related injuries absent an express congressional command to the contrary.
The Feres doctrine stems not only from practical considerations regarding the
deleterious impact of judicial interference on the command relationship . The doctrine
stems as well from consideration of constitutional significance because the Constitution
vests Congress and the President, not the judiciary, with plenary Constitutional
authority over the military. The Kentucky National Guard is an integral component of
the United States Uniform Services . Consequently, we hold that claims brought by
Kentucky National Guardsmen pursuant to KRS Chapter 344 for injuries while in
military service are not justiciable because Congress has not expressly permitted such
suits .
We affirm the decision of the Court of Appeals .
Lambert, C .J ., Cooper, Graves, and Wintersheimer, J .J . concur.
Johnstone, J ., dissents in a separate opinion in which Stumbo, J ., joins .
Keller, J ., dissents in a separate opinion .
Chappell , 462 U .S. at 300, 103 S .Ct . at 2366.
-12-
ATTORNEYS FOR APPELLANTS
Barbara D. Bonar
118 West Fifth St.
Covington, KY 41011
Squire N . Williams, Jr.
Stoll, Keenon & Park
326 West Main Street
Frankfort, KY 40601
ATTORNEYS FOR APPELANTS
William B . Pettus
Assistant Attorney General
Civil and Environmental Law
700 Capitol Ave .
Capitol Building, Suite 18
Frankfort, KY 40601
RENDERED: NOVEMBER 21, 2002
TO BE PUBLISHED
,Sit~rrrmr (~oix~ of `~QZtfixr.r
2001-SC-0761-MR
ROBERT A . JONES; CYNTHIA A.
WHITE ; LARRY WHITE ; AND
REGINALD P. YOUNGBLOOD (REAL PARTIES IN INTEREST)
V.
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
2001-CA-0889-OA
FRANKLIN CIRCUIT COURT NOS .
99-CI-00311, 99-CI-00954, 99-CI-00956 AND 99-CI-01093
HON . ROGER L. CRITTENDEN, JUDGE,
FRANKLIN CIRCUIT COURT;
KENTUCKY DEPARTMENT OF
MILITARY AFFAIRS ; AND
KENTUCKY NATIONAL GUARD
APPELLEES
DISSENTING OPINION BY JUSTICE JOHNSTONE
I respectfully dissent . While the majority fashions an eloquent argument in
support of its position, that argument merely attempts to evade the democratic and
unambiguous purpose of the Kentucky Civil Rights Act, which is "[t)o safeguard all
individuals within the state from discrimination ." KRS 344.020 (emphasis added) . The
majority's judicial machinations aside, there is no exception to the Civil Rights Act for
the Kentucky National Guard or the Kentucky Department of Military Affairs .
The Appellants in this case were undeniably serving the Commonwealth at the
time of the alleged events. As the majority correctly notes, "[t]he Constitution of
Kentucky, Section 220, gives to the Kentucky Legislature the power to maintain and
regulate the 'Militia ."' Slip op. at 9. Moreover, the Governor is the Commander-InChief of the militia, except when it is called into the service of the United States . Ky.
Constitution § 75 . And significantly, Kentucky Guardsmen are in the service of the
Commonwealth "unless and until ordered to active duty ." Perpich v. Dept. of Defense ,
496 U .S . 334, 345 ; 110 S. Ct. 2418, 2425; 110 L. Ed. 2d 312, 325 (1990) . Only when
"that triggering event occurs does a Guardsman become a part of the Army and lose
his status as a state serviceman ." Gilbert v. United States , 165 F.3d 470, 473 (6th Cir.
1999) (quoting United States v. Hutchings , 127 F.3d 1255, 1258 (10th Cir. 1997) . The
fact that the Kentucky National Guard receives federal funds does not alter the status
of the Guardsmen : "the issue of status depends on command and control and not on
whether . . . state or federal funds are being used. . . ." Gilbert at 473. In this case,
none of the plaintiffs had been called to active duty, so they were still under the state's
control .
The Kentucky Civil Rights Act provides that any person who has been injured
under the Act "shall have a civil cause of action in Circuit Court." KRS 344 .450. And
the state is not above suit for violation of the Act. In Dept . of Corrections v . Furr, Ky.,
23 S .W.3d 615, 617 (2000), this Court held that the state has waived sovereign
immunity for claims under KRS 344 :
What hollow words indeed if the safeguard against
discrimination does not include the right to be free from acts
of discrimination committed by the Commonwealth
itself, or in its name .
To immunize the Commonwealth from the application of the
Kentucky Civil Rights Act frustrates the act's purpose and
intent, deprives many of its citizens of its protection, and
renders meaningless its pledge to safeguard all individuals
from discrimination .
(Emphasis in original) . These facts led the Franklin Circuit Court in this case to
properly conclude : "[W]hile the Plaintiffs were under the exclusive command of the
Kentucky National Guard, the laws of the Commonwealth of Kentucky applied . . . .
[And] the Kentucky National Guard, while under state control, must abide by the
provisions set forth in KRS 344."
The majority claims that Appellants' suits against the Kentucky National Guard
and the Kentucky Department of Military Affairs are nonjusticiable because "[t]he
military constitutes a specialized community governed by a separate discipline from
that of the civilian ." Slip op. at 5 (quoting Orloff v. Willoughby, 345 U.S . 83, 94, 73 S .
Ct. 534, 540, 97 L. Ed. 842, 849 (1953)) . In fact, "discipline" is a motif running
throughout the majority opinion : some form of the word is used no less than nineteen
(19) times. With such heavy reliance on the term, it makes sense to have a clear
understanding of its meaning . The majority seems to ascribe at least three (3) different
meanings to "discipline ." In the quote above, from Orloff , "discipline" refers to a formal
grievance procedure or judicial protocol . Examples of discipline in this sense include
the Uniform Code of Military Justice (see Chappell v. Wallace , 462 U .S . 296, 302, 103
S . Ct. 2362, 76 L. Ed. 2d 586, 592 (1983)), the Board for Correction of Naval Records
(see id .), and the National Guard Military Complaint System ( see slip op . at 12). The
word "discipline" also denotes a state of preparation or fitness . E.q ., "It is because of
-3-
this unique purpose that the military demands a respect for duty and a commitment to
discipline that is without counterpart in civilian society ." See slip op. at 6 . The third
use of the word "discipline" is in the context of punishment. E "A soldier in the Army
.,
.g
is not free to quit his job, cannot be fired, and is subject to military discipline and
military law." See slip op . a t 7.
But all of this discussion about discipline just diverts attention from the facts of
the present case . The complainants in this case did not file suit based on a disciplinary
matter, they claimed they were discriminated against . Failing to promote a Guardsman
because of race, transferring a Guardsman because of race, or calling a Guardsman
"nigger" or "black bitch," if true, is not "discipline" of the type the majority claims is
"prescribed by Congress." Nor is it any other form of "discipline" that could be properly
sanctioned, either by the military or any other institution . And it certainly is not the type
of protected military action that is, according to the majority, designed to "foster
instinctive obedience, unity, commitment and esprit de corps ." Slip op . at 6 (quoting
Goldman v . Weinberger , 475 U .S . 503, 507, 106 S . Ct. 1310, 1313, 89 L. Ed . 2d 478,
484 (1986)) . Such treatment demonstrates unabashed racial bigotry .
But if there is a military or nondiscriminatory reason to support the treatment
these Guardsmen received, I do not believe it is beyond the comprehension of a
civilian to grasp . As Justice Oliver Wendell Holmes famously observed in a slightly
different context but with equal effect here : "Even a dog knows the difference between
being kicked and being tripped over." And to address the majority's fears of a complete
breakdown of military "discipline" if civil rights suits against the Guard are brought in
civilian court, l offer Justice Scalia's dissenting remarks in United States v . Johnson : "I
do not think the [adverse] effect upon military discipline is so certain, or so certainly
substantial, that we are justified in holding . . . that [the Legislature] did not mean what
it plainly said in the statute before us." Johnson , 481 U .S . 681, 699, 107 S . Ct 2063,
2073, 95 L. Ed. 2d 648, 664, (1987) (Federal Tort Claims Act case involving a
serviceman negligently killed while on duty. Three Justices joined Justice Scalia's
dissenting opinion, which eviscerated Feres v. United States , 340 U .S . 135, 71 S . Ct.
153, 95 L. Ed. 152 (1950)) . Racial discrimination is a vile vestige from a bygone era in
the history of our nation and our state . Permitting the Kentucky National Guard to
continue to evade responsibility for its discriminatory acts - if it committed those acts simply because it is a military body, will only make this Court an accomplice in
entrenching that institution on the wrong side of history. And all individuals in our
Commonwealth will be worse off for it.
The majority also claims that the Supremacy Clause bars Appellants' claims :
"Although Congress has not enacted statutes expressly preempting state regulation of
discrimination suits against military authorities, the federal scheme described above
strongly suggests that the field has been impliedly preempted by federal law." Slip op.
at 11 . Not only does the majority's argument rely heavily on Feres , supra, an opinion
whose inherent shortcomings were pointed out in Johnson , supra , but the argument
also misapprehends federal constitutional law. The majority is correct that the Militia
Clause clearly gives Congress power over military affairs and specifically power over
disciplining the militia . But these premises ignore the facts established above ; namely,
that Appellants do not complain about matters of "discipline" - they decry alleged acts
of blatant discrimination - and when the Kentucky National Guard has not been called
into active service, it remains under the regulation of the Kentucky Legislature .
Preemption can occur in three ways : (1) Congress expressly intends to preempt
a state law; (2) Congress "occupies the field" of regulation ; or (3) compliance with both
federal and state regulations is a physical impossibility . Gustafson v. City of Lake
Angelus, 76 F.3d 778, 782-83 (6th Cir. 1996) . Congressional intent is the focus of a
preemption inquiry . Id. at 783 . The majority concedes that nothing in the Militia
Clause, or any subsequent federal regulation, expressly prevents state legislatures
from extending civil rights coverage to state Guards . And though courts may hold that
Congress exempted the federal military from Title VII civil rights claims, that limitation is
a far cry from implied preemption preventing states from extending those rights to state
Guards . In the absence of a conflict, States are permitted to extend their citizens
protections greater than federal law provides . The Kentucky Legislature has done just
that with KRS 344, a fact we recognized in Meyers v. Chapman Printing, Ky., 840
S .W .2d 814, 817 (1992) :
One important purpose of the Kentucky Civil Rights
Act was to incorporate the anti-discrimination "policies
embodied" in the Federal Civil Rights Acts of 1964 (P.L. 88
352, Title VII--Equal Employment Opportunity) as
amended . . . . But there are further purposes expressed in
the Kentucky statute not specified in the Federal , including
11 protectong] . . . personal dignity and freedom from
humiliation ." Whereas the policies embodied in the
Kentucky Act are the same as the federal counterpart, the
statutory remedy provided through the court system differs
markedly because of these further policy statements and
because of the difference in remedy provided in KRS
344 .450 as contrasted with those provided in the Federal
Act . . . .
(Internal citations omitted, emphasis added) . KRS 344 was modeled after Title VII,
both statutes are designed to protect civil rights, and they do so in the same manner.
There simply is no conflict between the state and the federal laws, and the fact that
KRS 344 extends greater protections than Title VII does not create such a conflict.
KRS 344 plainly says that any individual who has been harmed under the Act may
bring suit in Circuit Court. There is no exemption for the Kentucky National Guard.
The limitations that apply in federal settings do not likewise apply to state matters .
Even the Supreme Court in Chappell , supra , conceded that some civil rights violations
in the military might properly be brought in civilian courts : "This Court has never held,
nor do we now hold, that military personnel are barred from all redress in civilian courts
for constitutional wrongs suffered in the course of military service ." Chappell , 462 U.S .
at 304, 103 S . Ct. at 2368, 76 L. Ed. 2d at 594 (1983) .
Despite the majority's attempt to cloak the Kentucky Department of Military
Affairs and Kentucky National Guard in the armor of federal protection, that
organization remains subject to the provisions of KRS 344 and is not entitled to
summary judgment in this case . As a circuit judge, I presided over a factually similar
case in Moore v. Kentucky Department of Military Affairs and Army National Guard, 92CI-06861 (unpublished) . In denying the defendant's motion to dismiss in Moore , I
reached the same result then as I do today:
KRS 344.040 makes it unlawful for an employer to
discriminate against an individual on the basis of race or
sex, as well as other classes . KRS 344 .030 defines
"employer" as "a person who has eight (8) or more
employees within the state in each of twenty (20) or more
calendar weeks in the current or preceding calendar year
. . . . 11 And KRS 344.010(1) defines "person" to include "the
state, any of its political or civil subdivisions or agencies ."
The Department of Military Affairs, Army National
Guard is attached to the office of the governor . KRS
36 .010(5) . As such, it falls within the definitions and
provisions of KRS Chapter 344, and specifically KRS
344.010(1) . Consequently, the Guard is subject to suit
under KRS Chapter 344, and this Court does have subject
matter jurisdiction . . . .
Moore , Order Denying Motion to Dismiss at 3-4 (January 12, 1993) . Though a decade
has passed since Moore, I steadfastly believe that this disposition alone faithfully
complies with both the letter and spirit of the law.
Stumbo, J., joins this dissenting opinion .
RENDERED: NOVEMBER 21, 2002
TO BE PUBLISHED
,$ixPrmue C~Vurf of ~ftrufurhv
2001-SC-0761-MR
ROBERT A. JONES ; CYNTHIA
WHITE; LARRY WHITE ; AND
REGINALD P . YOUNGBLOOD (REAL PARTIES IN INTEREST)
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
2001-CA-0889-OA
FRANKLIN CIRCUIT COURT NOS.
99-CI-00311, 99-CI-00954, 99-CI-00956 AND 99-CI-01093
V.
HON. ROGER L. CRITTENDEN, JUDGE,
FRANKLIN CIRCUIT COURT ;
KENTUCKY DEPARTMENT OF
MILITARY AFFAIRS ; AND
KENTUCKY NATIONAL GUARD
APPELANTS
DISSENTING OPINION BY JUSTICE KELLER
I respectfully dissent. When this Court decided Department of Corrections v.
Furr ("Fury"),' I joined Justice Cooper's dissenting opinion2 because I believed then -and I believe now -- that agencies of the Commonwealth cannot be sued for money
damages in Circuit Court under the Kentucky Civil Rights Act because the General
Assembly has not "specifically and expressly" waived their immunity . I recognize,
however, that a majority of this Court concluded otherwise and held that "KRS 344.450
provides a cause of action against the Commonwealth for violations of the Kentucky
'Ky., 23 S .W.3d 615 (2000) .
2
Id. at 618-619 (Cooper, J ., dissenting) .
Civil Rights Act. "3 Accordingly, although I would vote to overrule Furr if three other
members of this Court would join me, I recognize that the lawsuit that is the subject of
this appeal sprung forth from Furr, and thus, in order to resolve the issues presented
here, I must temporarily set aside my views and apply the Court's precedent . After
doing so, I believe the Court of Appeals erred when it granted the extraordinary relief
requested by the Appellees . In fact, I do not believe it is necessary to reach the merits
of this action because the Appellees' failure to demonstrate the inadequacy of post-trial
appellate review is, standing alone, fatal to their CR 76.36 request for a writ of
prohibition or mandamus .'
However, because both the majority opinion and Justice
Johnstone's separate dissenting opinion reach this case's merits, I state my agreement
-- subject to the caveat above -- with the Furr author's (Justice Johnstone's) dissenting
opinion. Accordingly, I would reverse and remand for the Court of Appeals to enter an
order denying relief.
3Id . at 618 .
See Kentucky Labor Cabinet v. Graham , Ky., 43 S.W.3d 247, 251 (2001) .
4
,Suyrrmr (~ourf of ~irufurhV
2001-SC-0761-MR
ROBERT A . JONES ; CYNTHIA
WHITE ; LARRY WHITE ; AND
REGINALD P. YOUNGBLOOD (REAL PARTIES IN INTEREST)
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
2001-CA-0889-OA
FRANKLIN CIRCUIT COURT NOS .
99-C1-00311, 99-CI-00954, 99-CI-00956, AND 99-CI-01093
V.
HON . ROGER L. CRITTENDEN, JUDGE,
FRANKLIN CIRCUIT COURT;
KENTUCKY DEPARTMENT OF
MILITARY AFFAIRS; AND
KENTUCKY NATIONAL GUARD
APPELAEES
ORDER CORRECTING OPINION
On the Court's own motion the opinion rendered November 21, 2002, in
the above styled case is hereby amended with the substitution of a new page 1
attached hereto .
The correction of this page does not change the holding of this
opinion .
ENTERED: March
.J
1
2003.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.