VIRGINIA L. WOODWARD V. DANA SEUM STEPHENSON, ET AL
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RENDERED : DECEMBER 22, 2005
AS MODIFIED : JANUARY 19, 2006
TO BE PUBLISHED
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2005-SC-0603-TG
DANA SEUM STEPHENSON
V.
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ON TRANSFER FROM COURT OF APPEALS
2005-CA-1601-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
VIRGINIA L. WOODWARD AND DAVID L .
WILLIAMS, IN HIS CAPACITIES AS PRESIDENT
OF THE KENTUCKY STATE SENATE AND
OFFICIAL REPRESENTATIVE OF ALL
MEMBERS OF THE KENTUCKY STATE
SENATE
APPELLEES
AND
2005-SC-0604-TG
DAVID L . WILLIAMS, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
SENATE OF THE COMMONWEALTH OF
KENTUCKY
V.
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1602-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
VIRGINIA L . WOODWARD AND DANA
SEUM STEPHENSON
AND
APPELLANT
APPELLEES
C,pc:
2005-SC-0645-TG
VIRGINIA L. WOODWARD
V
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1643-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
DANA SEUM STEPHENSON AND DAVID L .
WILLIAMS, IN HIS CAPACITIES AS PRESIDENT
OF THE KENTUCKY STATE SENATE AND
OFFICIAL REPRESENTATIVE OF ALL
MEMBERS OF THE KENTUCKY STATE
SENATE
APPELLEES
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING IN PART:_REVERSING IN PART
Appellants, Dana Seum Stephenson and David L. Williams, in his official
capacity as President of the Kentucky State Senate, appeal from a judgment of the
Franklin Circuit Court granting summary judgment in favor of Appellee, Virginia L.
Woodward, determining that Stephenson is not qualified to hold the office of State
Senator for the 37th District. Woodward cross appeals that portion of the Franklin
Circuit Court judgment denying her request to issue an injunction requiring the Senate
to seat her as State Senator for the 37th District . For the reasons set forth herein, we
affirm in part and reverse in part.
Though agreed upon by the parties, the nature of this matter and its import to the
public require a detailed recitation of the facts and procedural history. Virginia L.
Woodward (Woodward) and Dana Seum Stephenson (Stephenson) were candidates
for the office of State Senator from the 37th District, located in Jefferson County. The
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general election was scheduled for November 2, 2004. The day before the election,
Woodward filed a motion in the Jefferson Circuit Court to disqualify Stephenson as a
candidate . The motion, filed pursuant to KRS 118.176, alleged that Stephenson failed
to meet the residency requirement set forth in Section 32 of the Kentucky Constitution .
It was filed at four o'clock on the afternoon of November 1, 2004 .' A hearing on the
motion was scheduled for November 3, 2004.
The general election was held on November 2, 2004, and the names of both
Woodward and Stephenson appeared on the ballot . There were 22,772 votes cast for
Stephenson ; 21,750 votes were cast for Woodward .
The Jefferson Circuit Court held an evidentiary hearing the next day. Senator
David Williams appeared by counsel at the hearing, intervening in his capacity as
President of the Kentucky State Senate, to argue that the court lacked jurisdiction . The
court disagreed, interpreting KRS 118.176 as authorizing the judiciary to decide preelection challenges to candidates' qualifications . The court further issued a temporary
injunction preventing the Jefferson County Board of Elections from certifying the results
of the disputed election pending a final ruling on Woodward's motion.
On November 22, 2004, after considering evidence submitted at the hearing as
well as additional briefing by the parties, the Jefferson Circuit Court granted
Woodward's motion . Concluding that Stephenson had failed to meet the six-year
residency requirement found in Section 32 of the Kentucky Constitution, the court ruled
that she was not a bona fide candidate . Accordingly, the court dissolved the temporary
It must be noted that the record is devoid of any evidence indicating that Ms.
Woodward purposefully withheld her motion or otherwise effectuated a "calculated late
filing" as stated by Justice Scott in his dissenting opinion . Such a conclusion is nothing
more than a bare inference from the circumstances of the case ; a "calculated late filing"
was neither admitted by Ms . Woodward nor proven by her adversaries.
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injunction previously issued, and ordered the Jefferson County Board of Elections not to
count votes cast for Stephenson . Neither Stephenson nor Senator Williams appealed
this order.
Rather, on December 7, 2004, Stephenson filed an election contest in the
Kentucky State Senate pursuant to KRS Chapter 120 . Stephenson asserted that the
Jefferson Circuit Court lacked jurisdiction to determine her qualifications for office, and
requested the State Senate to seat her. In response to the election contest, Woodward
filed an action in the Franklin Circuit Court on December 15, 2004 . She sought
declaratory and injunctive relief against Stephenson, Senator Williams, and the State
Board of Elections . On December 21, 2004, Woodward further requested that
Stephenson be prohibited from pursuing the election contest in the Senate. A Franklin
Circuit Court Special Judge considered both motions, and on December 21 ordered the
State Board of Elections to certify the votes for Woodward and to issue an election
certificate despite the ongoing dispute. The court also denied Woodward's request to
enjoin Stephenson from proceeding with the election contest in the Senate . On
December 28, the State Board of Elections complied with this order by unanimously
certifying Woodward as the winner for the 37th District State Senate seat.
On December 30, 2004, Woodward brought another motion in the Franklin
Circuit Court for a temporary injunction against Stephenson . She also sought an
injunction against Senator Williams that would require him to seat her as an active State
Senator and to reject Stephenson's election contest. The court declined to issue either
injunction due to pending motions to dismiss for lack of jurisdiction .
Meanwhile, on January 1, 2005, Jefferson Circuit Court Judge Stephen Ryan
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administered the oath of office for State Senator to Woodward . On January 4, 2005,
Woodward again recited the oath of office for State Senate in the Kentucky State
Senate chambers with other newly elected Senators. Immediately thereafter, however,
Senator Dan Kelly moved to refuse recognition of the certificate of election by the State
Board of Elections on the basis that Woodward had not received the most raw votes.
The motion passed by voice vote . The same day, the Senate randomly selected an
Election Contest Board of nine members to consider Stephenson's still-pending election
contest.
Following two days of deliberations, the Senate's Election Contest Board issued
reports to the full Senate . The majority report, signed by five of the nine members of the
committee, determined that Stephenson's election contest was without merit because
she failed to meet the six-year residency requirement of the Kentucky Constitution . The
majority report further found Woodward to be the duly certified and elected winner in the
37th District . Nevertheless, on January 7, 2005, the Senate voted to reject the majority
report of its Election Contest Board -and instead accepted a minority report filed by three
members of the Board. This minority report found that Stephenson was legally
qualified to be seated as a member of the Senate. Shortly thereafter, the Senate
seated Stephenson as the State Senator from the 37th District and the Clerk of the
Senate administered the oath of office to her.
The following week, on January 14, 2005, the Franklin Circuit Court issued a
temporary injunction prohibiting Stephenson from exercising the duties of the Senate
office and denying Stephenson's motion to dismiss for want of jurisdiction . On January
2 The remaining member of the Board also filed a report finding Stephenson to be
unqualified. However, this member believed a special election should be held to fill the
vacancy .
28, 2005, the court also denied Woodward's motion for injunctive relief against Senator
Williams . Subsequently, Stephenson and Senator Williams, in his official capacity as
President of the Senate, filed motions for interlocutory relief with the Court of Appeals.
This Court accepted transfer of the motions and issued an opinion on March 17, 2005,
upholding the temporary injunction and declining to address the merits of the dispute.
Both parties then filed motions for summary judgment in the Franklin Circuit
Court . The court issued its opinion on June 1, 2005. Though concluding that the
Jefferson Circuit Court's judgment was not binding on the Senate, the Franklin Circuit
Court found that the Senate's action in seating Stephenson as a Senator was arbitrary
under Section 2 of the Kentucky Constitution . Accordingly, the court partially granted
Woodward's motion for summary judgment by declaring Stephenson a constitutionally
unqualified candidate and therefore ineligible to be seated as a Senator. However, the
court declined Woodward's request to require that Senator Williams seat Woodward as
Senator, concluding that the court lacked authority for such action .
Stephenson and Senator Williams appealed the judgment of the Franklin Circuit
Court to the Court of Appeals. This Court accepted transfer of the case on August 31,
2005, and heard oral arguments by the parties on November 16, 2005. On appeal, the
gravamen of Stephenson's and Senator Williams' arguments is that this Court lacks
jurisdiction to hear this action . Both Appellants argue that Section 38 of the Kentucky
Constitution grants the General Assembly exclusive and ultimate power to judge the
qualifications of its members. They maintain that Section 2 of the Kentucky Constitution
does not permit the judiciary to review the General Assembly's exercise of power
pursuant to Section 38 and, therefore, the Franklin Circuit Court erred in holding that the
Senate acted arbitrarily in seating Stephenson as State Senator. Woodward responds
with two central arguments. First, Woodward maintains that Section 2 of the Kentucky
Constitution authorizes this Court to review the Senate's exercise of power for
arbitrariness . For this reason, according to Woodward, the judgment of the Franklin
Circuit Court was correct. Furthermore, Woodward posits that the judgment of the
Jefferson Circuit Court, finding Stephenson to be an unqualified candidate for State
Senator, is binding on all parties and serves to prevent Stephenson from being seated
as a State Senator.
Because we conclude that it is determinative of the matter, we first address the
action of the Jefferson Circuit Court. The Jefferson Circuit Court predicated its
jurisdiction to hear Woodward's motion on KRS 118.176. On appeal, the parties dispute
the extent of jurisdiction authorized by the statute, which provides a procedure and
remedy for pre-election challenges to the qualifications of a candidate. "The courts of
this Commonwealth have long recognized that the judicial branch has no inherent
power to pass on the validity of elections or the eligibility of candidates, but only has
such power as given by the General Assembly or possessed at common law through a
quo warranto proceeding ." Noble v. Meagher, 686 S.W.2d 458, 460 (Ky. 1985)
(construing prior version of KRS 118.176) . But, the General Assembly has, in fact,
done precisely what it is authorized to do by enacting KRS 118 .176 - it has delegated to
the courts the sole authority to judge the qualifications of candidates if a challenge is
filed prior to an election . It is important to note that no party to this action has
challenged the constitutionality or validity of this statute.
Nonetheless, Senator Williams and Stephenson invoke the authority of the
General Assembly to judge the qualifications of its members pursuant to Section 38 of
the Kentucky Constitution, which states that "[e]ach house of the General Assembly
shall judge of the qualifications, elections and returns of its members, but a contested
election shall be determined in such manner as shall be directed by law." KRS 120.195
and KRS 120 .215 carry out the command of Section 38, and direct the procedures for
contesting an election for a position in the General Assembly ; the statutes do not
include the judiciary in this process. Yet, again, neither this Court nor the courts below
predicate our jurisdiction to hear this matter on KRS Chapter 120 or Section 38 of the
Constitution . Rather, the General Assembly has specifically conferred jurisdiction upon
the courts to adjudicate challenges questioning the qualifications of candidates through
KRS 118 .176 .
Furthermore, contrary to that espoused in the dissenting opinions, the delegation
of authority in KRS 118 .176 in no way infringes upon the constitutional authority of the
General Assembly to judge the qualifications of its members pursuant to Section 38.
Stephenson's and Williams' arguments are predicated upon the fundamentally flawed
belief that Stephenson was actually a member of the Senate. In a normal election that
proceeds without dispute or controversy, candidates are no longer candidates after the
election has occurred, as the voters have designated a winner who then becomes a
Senator-elect . However, the mere happening of the election does not instantly
transform this Senator-elect into a sitting member of the Senate . Rather, a Senatorelect only becomes a member of the Senate when his or her term commences "upon
the first day of January of the year succeeding [the] election ." Ky . Const. Sec. 30. This
proscription exists for an obvious reason: so that the terms of the departing Senator
and the Senator-elect do not overlap.
Here, though, when the Jefferson Circuit Court rendered its order finding that
Stephenson was not a bona fide candidate and therefore ineligible to appear on the
ballot, she lost all rights to that office . This determination was made on November 22,
2004 - before Stephenson had taken the oath of office, before she had been sworn in
as a State Senator, and before the term of office which she sought commenced on
January 1, 2005 . There is simply no legal or logical authority for the proposition that
Stephenson was a member of the Senate when the Jefferson Circuit Court rendered its
decision, a point conceded by all parties . Because she was not a member, the
Jefferson Circuit Court's order in no manner violated Section 38 of the Kentucky
Constitution . It is also for this reason that Appellants', as well as the dissenting
opinions', reliance on cases dealing with this Court's refusal to interfere with the General
Assembly's exclusive authority to pass on the qualifications of its members is clearly
misplaced. See e .g. Ranelr v. Stovall, 361 S .W.2d 518 (Ky. 1962) (dealing with the
qualifications of a sitting member of the Senate who was appointed as a deputy sheriff
halfway through his term).
We also reiterate the long-observed principle that constitutional adjudication
should be avoided unless it is strictly necessary for a decision in the case . In Sector
Motor Service v. McLaughlin , the Supreme Court of the United States stated, "if there is
one doctrine more deeply rooted than any other in the process of constitutional
adjudication, it is that we ought not to pass on questions of constitutionality . . . unless
such adjudication is unavoidable." 323 U.S . 101, 105, 65 S. Ct. 152, 154, 89 L. Ed. 101
(1944) . More recently, in Gomez v. U.S . , the Court stated, "it is our settled policy to
avoid an interpretation of a federal statute that engenders constitutional issues if a
reasonable alternative interpretation poses no constitutional question ." 490 U .S. 858,
864, 109 S. Ct . 2237, 2241, 104 L. Ed . 2d 923 (1989) . One articulation of the rule
directly applicable here was first stated by Justice Brandeis : "Thus, if a case can be
decided on either of two grounds, one involving a constitutional question, the other a
question of statutory construction or general law, the Court will decide only the latter."
Ashwander v. TVA , 297 U .S. 288, 347, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis,
J ., concurring) . As the General Assembly adopted KRS 118.176 and it applies to this
case, we will confine our analysis to the statute.
Necessary to this determination is our conclusion that this matter does not
involve an election contest. "An election contest obviously is a post-election procedure,
involving an election that has been held, as distinguished from a pre-election suit to
determine whether a person may be voted on as a candidate ." Fletcher v. Wilson, 495
S.W.2d 787, 791 (Ky . 1973). Furthermore, this Court has specifically determined that
pre-election challenges pursuant to KRS 118.176 are not election contests. Noble v.
Meagher, 686 S.W.2d 458, 461 (Ky. 1985) . Cases dealing with election contests - that
is, disputes involving not the qualifications of a candidate but the validity of the election
itself - are inapplicable to this matter . See e .g. Taylor v. Beckham, 108 Ky. 278, 56
S.W. 177 (1900) (in which the Court refused to interfere with the General Assembly's
constitutional authority to settle a contested election, wherein fraud and corrupt
practices were alleged) . Thus, the Jefferson Circuit Court had jurisdiction, expressly
granted by the General Assembly pursuant to KRS 118.176, to accept Woodward's
motion as such action was not an election contest, but rather a challenge to a
candidate's qualifications to appear on the ballot .
We next address two subordinate issues : whether KRS 118.176 authorized the
Jefferson Circuit Court to hear arguments on Woodward's motion the day after the
general election, and whether it had jurisdiction to grant relief to Woodward in the form
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of an injunction . At the outset, we reiterate that statutes governing election procedures
must be strictly complied with because "compliance with certain statutory steps are
jurisdictional requirements ." Noble at 460 . See also Ritchie v. Mann , 500 S.W.2d 62
(Ky. 1973). Subsection 2 of KRS 118.176 sets forth certain time limitations for filing a
motion to challenge a candidate's qualifications, and reads in pertinent part:
The bona fides of any candidate seeking nomination or election in a
primary or general election may be questioned by any qualified voter
entitled to vote for such candidate or by an opposing candidate by
summary proceedings consisting of a motion before the Circuit Court of
the judicial circuit in which the candidate whose bona fides is questioned
resides . An action regarding the bona fides of a candidate seeking
nomination or election in a primary or general election may be
commenced at any time prior to the general election . The motion shall be
tried summarily and without delay .
Stephenson argues that the Jefferson Circuit Court lacked jurisdiction to hear
Woodward's motion to disqualify her and, consequently, lacked jurisdiction to enjoin the
Jefferson County Board of Elections from counting votes cast for her. According to
Stephenson, KRS 118.176 grants authority to a circuit court to consider pre-election
challenges only up until the time of the election, but that its jurisdiction evaporates once
the polls have opened. At that time, jurisdiction then shifts to the General Assembly by
virtue of Section 38 of the Kentucky Constitution . Furthermore, because the polls had
closed and all votes had been cast prior to the time of the Jefferson Circuit Court order,
Stephenson posits that the action was moot. Stephenson therefore concludes that the
judgment of the Jefferson Circuit Court is void.
Woodward relies primarily on the plain language of the statute, which does not
explicitly state that a challenge to the bona fides of a candidate must be commenced
and adjudicated prior to the election . Furthermore, Woodward directs our attention to
KRS 118 .176(4), which sets forth an expedited appeal process for motions brought
under the statute: "[t]he motion shall be heard by the Court of Appeals . . . except that
the motion must be made before the court or judge within five (5) days after the entry of
the order in the Circuit Court." Woodward argues that this language clearly
contemplates an appeal process that may extend beyond the election . Thus,
Woodward argues that the Jefferson Circuit Court properly exercised its jurisdiction and
its order is valid and becomes binding in the absence of an appeal therefrom.
We turn to the proper interpretation of KRS 118.176. "It was long ago settled
that the interpretation of statutes is a proper judicial function ." Masonic Widows and
Orphans Home and Infirmary v. City of Louisville , 309 Ky. 532, 217 S.W.2d 815, 822
(1948) . When construing duly enacted statutes, it is "the seminal duty of a court . . . to
effectuate the intent of the legislature." Commonwealth v Plowman , 86 S.W.3d 47, 49
(Ky. 2002) . See also Wesley v. Bd. of Educ. of Nicholas County, 403 S .W.2d 28, 29
(Ky. 1966) (the "fundamental touchstone" of statutory construction is "the will or intent of
the legislature") . The most logical and effective manner by which to determine the
intent of the legislature is simply to analyze the plain meaning of the statutory language :
"[r]esort must be had first to the words, which are decisive if they are clear." Gateway
Constr. Co. v . Wallbaum , 356 S .W.2d 247, 249 (Ky. 1962) . "[S]tatutes must be given
their literal interpretation unless they are ambiguous and if the words are not
ambiguous, no statutory construction is required ." Plowman at 49. We lend words of a
statute their normal, ordinary, everyday meaning . Id .
KRS 118 .176 provides that an action challenging the bona fides of a candidate in
a general election "may be commenced at any time prior to the general election ." This
language is clear and free of any ambiguity or uncertainty. The terminology used in the
statute is of common parlance . The statute employs the very broad and expansive
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language that the action may be commenced at any time prior to the general election .
Contrary to Justice Scott's definition, it places no restrictions as to exactly how far in
advance of the general election the motion may be filed, nor does it identify a deadline
other than "the general election ." We need not resort to speculation or conjecture to
discern the legislative intent of this portion of KRS 118.176 : the only logical
interpretation is that it authorizes challenges up to the time that the general election
commences . "A civil action is commenced by the filing of a complaint with the court and
the issuance of a summons or warning order thereon in good faith ." CR 3.01 . It is
uncontested that Woodward commenced her action in the Jefferson Circuit Court as
defined by CR 3.01, and fulfilled the time requirement of KRS 118.176, as she filed her
motion before the election commenced the following day .
Stephenson directs our attention to the fact that the Jefferson Circuit Court did
not hold a hearing on the motion or render its decision until after the November 2
general election . She urges that the jurisdiction of the circuit courts to consider KRS
118 .176 motions extinguishes, or evaporates, when the polls open and the election has
commenced . Implicit in this argument is the concession that the Jefferson Circuit Court
did have jurisdiction when Woodward's motion was filed . Jurisdiction turns on the facts
existing at the time the action was commenced . Louisville, N.A . & C. Rv . Co. v.
Louisville Trust Co. , 174 U.S. 552, 556, 19 S. Ct. 817, 818, 43 L. Ed. 1081 (1899) . "As
a general rule, jurisdiction once acquired is not defeated by subsequent events, even
though they are of such character as would have prevented jurisdiction from attaching in
the first instance ." 21 C .J .S . Courts § 72 (2005) . See also Big Sandy Realty Co. v.
Stansifer, 253 S.W.2d 601, 604 (Ky. 1952) (same, quoting a prior version of 21 C.J.S .
Courts, supra) . Therefore, the Jefferson Circuit Court, having acquired jurisdiction by
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the timely filing of Woodward's motion pursuant to KRS 118.176, retained that
jurisdiction to finally adjudicate the action despite the subsequent general election, even
though it would not have acquired jurisdiction had Woodward filed her motion after the
commencement of the election .
Furthermore, Stephenson's position is at variance with the language of the
statute. Under Stephenson's interpretation, simply filing an action prior to the election is
insufficient because the issue becomes moot and nonjusticiable once the election has
been held . In other words, Stephenson argues that KRS 118.176 requires that the
action be commenced and adjudicated prior to the election . This interpretation,
however, is in direct contravention of the plain language of the statute, which states only
that the action must be commenced prior to the election . It does not require that the
action must be commenced and adjudicated prior to the election . We decline the
invitation to attach additional words or meaning to an otherwise clear and unambiguous
statute . "We are not at liberty to add or subtract from the legislative enactment or
discover meaning not reasonably ascertainable from the language used ." Harrelson v.
Commonwealth , 14 S.W.3d 541, 546 (Ky. 2000).
Nor may we interpret a statute at variance with its stated language . There is no
language in KRS 118.176 from which to deduce that the General Assembly intended
these actions be adjudicated prior to the opening of the polls. In fact, the sole reference
to the circuit court's time limitations is the requirement that the motion be "tried
summarily and without delay." Reading this provision in concert with the expedited
appeal process set forth in subsection 4 of the statute makes it clear that the legislature
considered the exigency of KRS 118.176 motions . The public's interest in the
expeditious resolution of election challenges is axiomatic. However, the legislature
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specifically provided that the motion be considered without delay; it did not state that the
motion must be adjudicated prior to the election . Principles of statutory interpretation
lead to a single conclusion : if the legislature had intended that actions pursuant to KRS
118.176 be both commenced and adjudicated prior to the general election, it would
have so stated in definitive terms.
Additionally, Stephenson argues that, because the statute does not provide for a
remedy post-election, the legislature did not intend for the courts to further consider
such actions after the election had been held, even if they had been commenced prior
to the election . Again, this assertion ignores the clear and unambiguous language of
the statute. When a circuit court has determined that a candidate is not a bona fide
candidate, KRS 118 .176(4) mandates that the court must "certify the fact to the board of
elections, and the candidate's name shall be stricken from the written designation of
election officers filed with the board of elections or the court may refuse recognition or
relief in a mandatory or injunctive way." (Emphasis added). We agree with
Stephenson's common sense conclusion that striking a candidate's name from the
ballot is a pre-election remedy. However, we cannot conclude that this language
precludes any post-election remedy. To the contrary, by employing the phrase "or the
court may refuse recognition or relief in a mandatory or injunctive way," the legislature
explicitly authorizes additional forms of relief. To adopt Stephenson's reasoning would
render the last portion of the sentence utterly meaningless . The plain and unambiguous
language of the statute permits a circuit court to do precisely what the Jefferson Circuit
Court did, in fact, do. By enjoining the Jefferson County Board of Elections from
counting votes cast for Stephenson, the court refused recognition of Stephenson as a
candidate by means of an injunction, which is expressly authorized by the statute .
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Finally, we note that Stephenson's theory of "evaporating jurisdiction" would lead
to curious results, surely not intended by the General Assembly . Both Stephenson and
Williams concede that KRS 118 .176 actions may be brought any time prior to the
election ; this is unequivocally stated in the statute. However, if a court may accept
these actions any time prior to the election, but loses jurisdiction once the polls open,
there is nothing to prevent a recalcitrant judge from simply refusing to adjudicate a KRS
118 .176 motion . The court might simply let the motion sit until after election day, at
which point jurisdiction would evaporate. We are confident that the General Assembly
did not intend such a result, but instead intended the judiciary to adjudicate the
qualifications of candidates - even if, in rare circumstances, such adjudication actually
occurs several days after the election has occurred . Furthermore, this interpretation in
no way encourages the "calculated late filings" feared by Justice Scott. If jurisdiction to
adjudicate the matter does, in fact, continue beyond the election, then candidates have
no incentive to file their actions later rather than sooner. Rather, it inures to their benefit
to disqualify an adversary as early as possible, saving the time, effort and expense of
additional campaigning against an unqualified candidate who could never lawfully take
office .
Because the language of the statute is abundantly clear, we need not resort to
extrinsic aids to its interpretation . Nonetheless, the legislative history is enlightening
and serves only to strengthen our foregoing conclusion, and for this reason we
reference it.4 KRS 118 .176 has existed in several forms since 1974, but was amended
a
This is not the situation that occurred in the Jefferson Circuit Court. While the court
did postpone the hearing on Woodward's motion, a delay of less than 48 hours can
hardly be considered a "worst case scenario," as characterized by Justice Roach.
4 "In the interpretation of statutes, the function of this or any court is to construe the
language so as to give effect to the intent of the legislature . There is no invariable rule
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most recently in 2001 . Prior to the 2001 version, KRS 118.176 allowed challenges to
the bona fides of a candidate only up until the time of the primary election . See Noble v.
Meagher, 686 S .W.2d 458 (Ky. 1985) (holding, in part, that the post-1984 version of
KRS 118.176 requires that challenges to the qualifications of a candidate must be made
before the primary election in strict compliance with the wording of the statute) .
The General Assembly again considered the statute in 2001 in response to the case of
Leqate v. Stone.5
There, Legate and Stone were candidates for councilperson in Madisonville,
Kentucky . Though running in the primary election as a Democrat candidate, it was
discovered on the day of the primary election that Legate was, in fact, a registered
Republican. Legate received the most raw votes in the election . After the primary
election, Stone filed a challenge pursuant to KRS 118.176 to disqualify Legate, and the
circuit court ruled in his favor. The Court of Appeals, however, reversed with directions
to dismiss the action, concluding that KRS 118.176 motions filed after the primary
election are untimely. This Court denied discretionary review .
At the next legislative session in 2001, the General Assembly amended the
statute to allow challenges to a candidate's qualifications up until the general election .
The stated purpose of the proposed amendment was to allow challenges up until the
time of the general election, specifically to prevent the situation that ultimately occurred
for the discovery of that intention . The actual words used are important but often
insufficient . The report of the legislative committees may give some clue . Prior drafts of
the statute may show where meaning was intentionally changed . Bills presented but
not passed may have some bearing. Words spoken in debate may be looked at to
determine the intent of the legislature." Fiscal Court of Jefferson County v. Cit roof
Louisville , 559 S .W.2d 478, 480 (Ky. 1977) .
5 The opinion of the Court of Appeals in this matter was not designated for publication .
It may be referenced by its case number, 2000-CA-01724-I. We note also that this case
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in Legate v. Stone . The Journal of the House of Representatives indicates that an
initial version of the amendment proposed that an "action regarding the bona fides of
any candidate seeking nomination or election in a primary or general election may be
commenced either before or after the primary or general election ." 7 The version
ultimately enacted, of course, allows KRS 118.176 actions simply "any time prior to the
general election," effectively prohibiting motions subsequent to the general election .
Comments made by Representatives during a session of the House Committee on
Elections, Constitutional Amendments and Intergovernmental Affairs indicate that this
alteration was made because, after an election, "candidates" are no longer "candidates"
and therefore are not the subject of KRS 118.176 actions . From this history, we believe
that it is unquestionable that the General Assembly amended KRS 118 .176 in 2001 to
effectuate a singular goal : to allow challenges to a candidate's qualifications after the
primary election and any time prior to the general election .
Finding no ambiguity in the plain language of the statute, it is our holding that
KRS 118 .176 permits a circuit court to consider and adjudicate challenges to a
candidate's bona fides that are commenced prior to the general election . There are no
limitations placed on the movant as to how far in advance of the election the action may
be commenced, nor are there limitations placed on the circuit court concerning time
limitations for adjudication . Here, Woodward commenced her action prior to the general
election . That she filed the motion to disqualify Stephenson hours before the polls
opened is of absolutely no consequence; her action was commenced prior to the
is not cited as authority, as prohibited by CR 76.28(4)(c), but rather simply to
acknowledge the impetus for the 2001 legislative revision to KRS 118 .176 .
6 Hearing on HB 85 Before the Sen . State and Local Gov't Comm., 2001 Reg . Sess .
~Ky . 2001) .
Ky. H.J . Reg . Sess . (2001) .
election and satisfies this simple requirement of the statute . Furthermore, because
Woodward's motion complied with the filing requirements of the statute, the Jefferson
Circuit Court had jurisdiction to adjudicate the matter and grant relief in the form of an
injunction, and that jurisdiction continued to exist even after the election had occurred .
Because no party to this action chose to appeal the order of the Jefferson Circuit Court,
it is valid and binding on the parties. Though for substantively different reasons, we
affirm that portion of the Franklin Circuit Court judgment declaring that Stephenson is
not constitutionally qualified for the office of State Senator and may not be seated .
We must also consider Woodward's cross-appeal in which she argues that the
Franklin Circuit Court erred in declining to compel Senator INilliams to seat her as the
Senator for the 37th District. Kentucky courts have long recognized the principle that
votes cast for an unqualified candidate are not in and of themselves void . Stephenson
did, in fact, receive the most votes in this election . However, the fact that she has been
disqualified does not render Woodward the winner nor grant her a right to the office .
Rather, the effect of the disqualification of a candidate subsequent to the election is that
no election has occurred and the true and legitimate will of the people has not yet been
expressed . See Woods v. Mills, 503 S .W.2d 706 (Ky. 1974) (declining to declare the
appellant the winner in an election in which the appellee, who won the most votes, was
later disqualified) . See also Bogie v. Hill, 286 Ky . 732, 151 S .W.2d 765 (1941) ;
McKinney v. Barker , 180 Ky. 526, 203 S .W. 303 (1918) . We therefore affirm that
portion of the Franklin Circuit Court judgment denying Woodward's request to compel
the Senate to seat her.
This Court is deeply respectful of the electoral process and its very fundamental
role in the functioning of a true democracy . We are equally sympathetic to those
- 1 9-
citizens who voted in the election herein disputed . However, we cannot ignore that an
election may only be considered legitimate when the statutory procedures governing the
process are followed and constitutional mandates are respected. When a candidate
who is constitutionally unqualified to take office nonetheless presents him or herself as
a qualified candidate eligible for election and office, that candidate has not only misled
the electorate but also engaged it in a futile endeavor . Votes cast for the unqualified
candidate lack the import of those cast for a qualified candidate, as each vote could
under no circumstances result in the placement of the candidate in the desired office .
As stated above, though the voters of the 37th District participated in the
election process on November 2, 2004, they were essentially prevented from making a
choice and the end result is that no valid election has actually occurred .
Unfortunately, the 37th District has been unrepresented for nearly an entire year
during the pendency of this action . Sadly, the delay was avoidable. Had the Appellants
sought relief from the Jefferson Circuit Court order through the appellate process, rather
than abandoning judicial remedy and instead seeking a more favorable outcome in an
alternate forum, this matter could have been expeditiously resolved and the 37th District
would have had the representation to which it is entitled . Instead, the protracted nature
of this widely publicized litigation provided fertile ground for tensions to rise and
arguments to become more heated between the parties . The result is that a single
challenge to the qualifications of a candidate has mushroomed into a perceived clash of
a constitutional magnitude between the legislature and the judiciary. The constitutional
confrontation between separate branches of Kentucky's government which was
predicted by some has not arisen .
While Justice Roach might find it "mind-boggling" and "outrageous" that we have
decided the issues herein presented, it would be even more outrageous for this Court to
abandon its Constitutional duty to "say what the law is." Marbury v. Madison , 5 U .S . (1
Cranch) 137, 2 L. Ed . 60 (1803) . This Court and its predecessors have recognized on
countless occasions the autonomy of our sister branches of government, our inability to
pass on the wisdom of legislative or gubernatorial action, and our profound respect for
the doctrine of separation of powers . But, just as this Court will not infringe upon the
independence of the legislature, we will not cast a blind eye to our own duty to interpret
the Constitution and declare the law. It is the primary and fundamental responsibility of
this Court to ensure that the Constitution of this Commonwealth is respected . As we
have set forth at length in this opinion, the legislature has delegated authority to the
judiciary to determine the qualifications of a candidate for public office ; that alone is the
issue to which we have confined our decision . By exercising only that jurisdiction that
has been specifically conferred upon the judiciary by the legislature, this Court has
neither infringed on the autonomy of the General Assembly nor violated the doctrine of
separation of powers.
For the foregoing reasons, the judgment of the Franklin Circuit Court is affirmed
in part and reversed in part.
Lambert, C .J. ; Graves and Wintersheimer, JJ ., concur. Lambert, C .J., files a
separate concurring opinion, which Graves, J ., joins. Cooper, J ., concurs in part and
dissents in part, by separate opinion . Roach, J., dissents by separate opinion, with
Scott, J ., joining . Scott, J ., dissents by separate opinion.
-21 -
COUNSEL FOR DANA SEUM STEPHENSON :
James E. Milliman
Donald H. Vish
Rebecca Grady Jennings
Middleton & Reutlinger
2500 Brown & Williamson Tower
401 South Fourth Avenue
Louisville, KY 40202-3410
COUNSEL FOR VIRGINIA L . WOODWARD :
Jennifer Ann Moore
H . Philip Grossman
Fernandez, Friedman, Grossman & Kohn
2400 National City Tower
101 South Fifth Street
Louisville, KY 40202
COUNSEL FOR DAVID L . WILLIAMS :
Harland C . Hatter
203 Capitol Annex
Frankfort, KY 40601
Paul Emmanuel Salamanca
279 Cassidy Avenue
Lexington, KY 40502
COUNSEL FOR AMICUS CURIAE,
NATIONAL CONFERENCE OF STATE
LEGISLATURES :
Douglas L. McSwain
Sturgill, Turner, Barker & Moloney, PLLC
155 East Main Street, Suite 400
Lexington, KY 40507
Peter S. Wattson
17 State Capitol
St. Paul, MN 55155
COUNSEL FOR AMICUS CURIAE,
AMERICAN LEGISLATIVE EXCHANGE
COUNCIL :
David T. Royse
Stoll, Keenon & Park, LLP
300 West Vine Street, Suite 2100
Lexington, KY 40507
Steven F. Huefner
c/o Osu-Moritz College of Law
55 West 12th Avenue
Columbus, OH 43210
RENDERED : DECEMBER 22, 2005
TO BE PUBLISHED
,*uyrtmp (gaurf of "rufurhV
I~R
2005-SC-000603-TG
DANA SEUM STEPHENSON
V.
APPELLANT
ON TRANSFER FROM THE COURT OF APPEALS
2005-CA-1601-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-01676
VIRGINIA L. WOODWARD AND DAVID L.
WILLIAMS, IN HIS CAPACITY AS
PRESIDENT OF THE KENTUCKY STATE
SENATE AND OFFICIAL
REPRESENTATIVE OF ALL MEMBERS
OF THE KENTUCKY STATE SENATE
AND
2005-SC-000604-TG
DAVID L. WILLIAMS, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
SENATE OF THE COMMONWEALTH OF
KENTUCKY
V
APPELLANT
ON TRANSFER FROM THE COURT OF APPEALS
2005-CA-1602-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-01676
VIRGINIA L . WOODWARD AND DANA
SEUM STEPHENSON
AND
APPELLEES
APPELLEES
2005-SC-000645-TG
VIRGINIA L. WOODWARD
V
APPELLANT
ON TRANSFER FROM THE COURT OF APPEALS
2005-CA-1643-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-01676
DANA SEUM STEPHENSON; AND
DAVID L. WILLIAMS, IN HIS CAPACITIES
AS PRESIDENT OF THE KENTUCKY
STATE SENATE AND OFFICIAL
REPRESENTATIVE OF ALL MEMBERS
OF THE KENTUCKY STATE SENATE
APPELLEES
CONCURRING OPINION BY CHIEF JUSTICE LAMBERT
My colleagues, Justice Johnstone, Justice Cooper, Justice Scott, and
Justice Roach, have each written an opinion in this case . Without any doubt, all of their
opinions are the product of superb scholarship, deep respect for constitutional
principles, and personal integrity in the decision-making process . In the end, by a vote
of 5-2, this Court has determined that the decision of the Franklin Circuit Court denying
Dana Seum Stephenson a seat in the Kentucky Senate should be affirmed . While
some will disagree with the outcome, there should be no doubt that every relevant
argument has been honestly considered by the seven fallible human beings who sit on
the Supreme Court of Kentucky
A guiding principle of American law was given to us by "the great Chief
Justice"' John Marshall in Marbury v. Madison. During the infancy of this nation, Chief
Justice Marshall set us on a course from which no political body or institution has
seriously deviated for more than two hundred years . Only the words of Chief Justice
Marshall are adequate as an exposition of this organic principle:
It is emphatically the province and duty of the judicial
department to say what the law is . Those who apply the rule
to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts must
decide on the operation of each. . . . This is of the very
essence of judicial duty. 3
The Supreme Court of Kentucky is the final arbiter of Kentucky constitutional law. 4
We have now done our "judicial duty" and the duty to go forward with the
process of government is upon others . Responsible officials will reject any notion of
defiance or retaliation against the judiciary, for such action would be an attack upon the
Constitution itself . Judges, legislators, and governors come and go, but the Constitution
remains . Public officials must honor conclusive constitutional interpretation regardless
of the depth of their disagreement with a particular decision, for anything else would
fundamentally alter the constitutional allocation of governmental responsibility .
Most Kentuckians will not understand the esoteric concepts herein
debated in this Court's opinions . Justiciability, textual commitment, stare decisis, and
other legal terms of art will not be generally understood, but persons with even a casual
interest in public affairs will understand that the rule of law must be observed . Our
' Heart of Atlanta Motel. Inc. v. U.S . , 379 U .S . 241, 254, 85 S .Ct. 348, 13 L.Ed .2d 258
1964) .
5 U .S. (1 Cranch) 137, 2 L.Ed . 60 (1803) .
3 _Id . at 177.
4 See Ky. Const. §109.
national tradition compels such observance even in the most divisive of legal
controversies . Illustrative of this, the President of the United States yielded upon a
determination by the Supreme Court that the Oval Office tape recordings of presidential
conversations had to be surrendered to the special prosecutor. With full knowledge
that such tape recordings would likely lead to his impeachment, President Nixon
surrendered the tapes. More recently, despite a widely held view that the Supreme
Court of the United States had exceeded its jurisdiction in halting the recounting of
votes in Florida, thus assuring the election of President Bush, 6 Vice President Gore, out
of respect for the Court's 5-4 opinion, conceded the election .
As divisive as this controversy has been, the legal and constitutional
process has been honored.
Graves, J., joins this concurring opinion .
5 U .S. v. Nixon , 418 U .S . 603, 94 S .Ct. 3090, 41 L.Ed .2d 1039 (1974) .
6 Bush v. Gore, 531 U .S . 98, 121 S .Ct. 525, 148 L .Ed.2d 388 (2000) .
RENDERED : DECEMBER 22, 2005
TO BE PUBLISHED
Q
,;vuyrPZrcP Caurf of ~rufurhV
2005-SC-0603-TG
DANA SEUM STEPHENSON
V.
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1601-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
VIRGINIA L. WOODWARD; AND
DAVID L . WILLIAMS, IN HIS CAPACITIES
AS PRESIDENT OF THE KENTUCKY
STATE SENATE AND OFFICIAL
REPRESENTATIVE OF ALL MEMBERS
OF THE KENTUCKY STATE SENATE
AND
2005-SC-0604-TG
DAVID L. WILLIAMS, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
SENATE OF THE COMMONWEALTH
OF KENTUCKY
V.
APPELLEES
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1602-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
VIRGINIA L. WOODWARD ; AND
DANA SEUM STEPHENSON
APPELLEES
AND
2005-SC-0645-TG
VIRGINIA L . WOODWARD
V.
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1643-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
DANA SEUM STEPHENSON ; AND
DAVID L. WILLIAMS, IN HIS CAPACITIES AS
PRESIDENT OF THE KENTUCKY STATE
SENATE AND OFFICIAL REPRESENTATIVE
OF ALL MEMBERS OF THE KENTUCKY
STATE SENATE
APPELLEES
OPINION BY JUSTICE COOPER
CONCURRING IN PART AND DISSENTING IN PART
I concur in the majority opinion insofar as it holds that the unappealed final
judgment of the Jefferson Circuit Court declaring Stephenson constitutionally
unqualified to hold the office of State Senator for the 37th District is conclusive of the
issue . However, for that same reason, I conclude that the Franklin Circuit Court erred in
not declaring Woodward the winner of the election and ordering (if necessary) that she
be seated as the State Senator for the 37th District. Therefore, I respectfully dissent
from the majority opinion insofar as it affirms the Franklin Circuit Court's refusal to grant
Woodward the full relief to which she is entitled .
The Jefferson Circuit Court acquired jurisdiction to determine Stephenson's bona
fides as a candidate for the State Senate when Woodward commenced her action "prior
to the general election" as authorized by KRS 118.176(2). As noted in the majority
opinion, the intervention of the election before judgment did not divest the Jefferson
Circuit Court of that jurisdiction even though that court could not have acquired
jurisdiction had the action been commenced after the election . That court's order of
November 22, 2004, not only declared Stephenson constitutionally unqualified for the
office of State Senator, it also ordered the Board of Elections not to count any votes
cast for Stephenson . Both aspects of the order became final and binding on the parties
upon the expiration of the time for appeal .
The initial tally published by the State Board of Elections (and accurately
described by the Board as "unofficial") reported that Stephenson received 22,772 votes
and Woodward 21,750. However, the "Official Count and Record of Election Totals"
subsequently certified to the Secretary of State by the Jefferson County Board of
Elections reported 21,750 votes for Woodward and did not report any votes for
Stephenson - instead accurately reporting that votes cast for her were "suppressed by
Court Order." Thus, when the State Board of Elections conducted its official count
pursuant to KRS 118.425(4), it had before it all of the votes from the 37th District that
were cast for a bona fide candidate, i .e. , the votes cast for Woodward . Ipso facto,
Woodward won the election by a vote of 21,750 - 0. The State Board of Elections has
certified that Woodward "received the highest number of votes given for that office, as
certified to the Secretary of State, and is, therefore, duly and regularly elected for the
term prescribed by the Constitution ." Upon the expiration of the previous term of office
and upon taking the oath of office, Woodward became the State Senator for the 37th
District. The Senate, however, by voice vote, purported to refuse to seat her as a
member of that body .
No one claims that Woodward does not possess the constitutional qualifications
to hold the office of State Senator. Nothing in the Constitution gives the State Senate
the power to exclude a member who has been properly certified as duly elected
(election contests are outside the purview of Section 38), who has taken the oath of
office, and who possesses the constitutional qualifications for the office . See Powell v.
McCormack, 395 U.S . 486, 550, 89 S.Ct. 1944, 1979, 23 L. Ed .2d 491 (1969) ("[S]ince
Adam Clayton Powell, Jr ., was duly elected by the voters . . . and was not ineligible to
serve under any provision of the Constitution, the House was without power to exclude
him from its membership ."); Mundo-Rios v. Vizcarrondo-Irizarry , 228 F.Supp.2d 18, 30
(D. P.R. 2002) ("The Legislature cannot refuse to seat an elected member, who has
been provided an electoral certification of election, even if there are irregularities alleged
in the election . . . . ..) .
Although Section 39 of the Kentucky Constitution permits a House of the General
Assembly to expel a member by a concurrence of two-thirds of its membership, that did
not occur here, as there was no vote count on the motion to exclude (expel?)
Woodward . (Nor would it seem that Section 2 of our Constitution would allow even twothirds of the members of a House to expel a duly elected and qualified member without
cause, e.g_, for purely partisan reasons.)
The three cases cited by the majority opinion for the proposition that
disqualification of the candidate who received the most votes does not result in victory
for the defeated candidate are not on point. In each of those cases, the disqualified
candidate's votes were counted and he was certified as the winner of the election . The
disqualification occurred as a result of an election contest filed after the election .
Woods v. Mills , 503 S .W.2d 706, 706 (Ky . 1974); Bogie v. Hill , 286 Ky. 732, 151 S.W.2d
765, 766 (1941) ; McKinney v. Barker , 180 Ky. 526, 203 S.W. 303, 303 (1918) . Here,
Woodward did not file an election contest after the election ; she filed a challenge to
Stephenson's bona fides before the election, and the "unofficial" votes for Stephenson
were never officially reported or counted . Thus, the result is the same as if Woodward
ran unopposed . The case of Fletcher v. Wilson , 495 S .W.2d 787 (Ky . 1973), cited by
Stephenson in her brief, cites cases in dictum that hold that a defeated primary
candidate cannot challenge the winner's qualifications for office . Id . at 792. "These
cases established the policy that questions of the kind stated above must be raised
before the primary." Id . Of course, those cases have no application here because
Woodward filed her action challenging Stephenson's bona fides before the election .
The U .S. Supreme Court was not required in Powell to determine whether the
inherent judicial power of mandamus would be appropriate to force legislative
compliance with court orders, because the only relief sought by Powell was a
declaration of rights . 395 U .S. at 517, 89 S.Ct. at 1962 . However, in Noble v. Union
River Logging Railroad Co. , 147 U.S . 165, 13 S.Ct. 271, 37 L.Ed. 123 (1893), the U.S .
Supreme Court distinguished between enjoining discretionary and ministerial
governmental duties .
If he has no power at all to do the act complained of, he is as much
subject to an injunction as he would be to a mandamus if he refused to do
an act which the law plainly required him to do. . . . [W]hen a plain, official
duty, requiring no exercise of discretion, is to be performed, and
performance is refused, any person who will sustain personal injury by
such refusal may have a mandamus to compel its performance ; and when
such duty is threatened to be violated by some positive official act, any
person who will sustain personal injury thereby, for which adequate
compensation cannot be had at law, may have an injunction to prevent it.
Id . at-172, 13 S.Ct. at 273 (citation and quotation omitted) .
Since the State Senate has no constitutional authority to exclude from its
membership a person who has been certified as duly elected to membership and who
possesses the constitutional qualifications for office, an injunction could issue to prevent
that person's exclusion from membership without violating the doctrine of separation of
powers. Cf. Akers v. Floyd County Fiscal Ct. , 556 S.W.2d 146, 149 (Ky. 1977)
("Injunctive processes of law are available to be invoked in an action challenging the
constitutionality of a legislative act and of the carrying out or enforcement of its
provisions .") ; compare Geveden v. Commonwealth , 142 S.W.3d 170, 172 (Ky. App .
2004) (doctrine of separation of powers precluded issuance of injunction to require
Governor to perform purely discretionary act) . I am confident, however, that the State
Senate would not refuse to follow a final decision of this Court on an issue that the
General Assembly specifically delegated to the judiciary by enacting KRS 118.176(2).
Accordingly, I dissent from the majority opinion insofar as it denies Woodward
the full relief to which she is entitled, i .e . , to be declared the duly elected and qualified
State Senator for the 37th District.
RENDERED : DECEMBER 22, 2005
TO BE PUBLISHED
~ixil"mt (911arf of
rttfixAv
2005-SC-0603-TG
DANA SEUM STEPHENSON
V.
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1601-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-01676
VIRGINIA L. WOODWARD AND DAVID L.
WILLIAMS, IN HIS CAPACITIES AS
PRESIDENT OF THE KENTUCKY STATE
SENATE AND OFFICIAL
REPRESENTATIVE OF ALL MEMBERS
OF THE KENTUCKY STATE SENATE
AND
2005-SC-0604-TG
DAVID L. WILLIAMS, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
SENATE OF THE COMMONWEALTH OF
KENTUCKY
V.
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1602-MR
FRANKLIN CIRCUIT COURT NO . 2004-CI-01676
VIRGINIA L. WOODWARD AND DANA
SEUM STEPHENSON
AND
APPELLEES
2005-SC-0645-TG
VIRGINIA L. WOODWARD
V.
APPELLEES
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1643-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-01676
DANA SEUM STEPHENSON ; AND
DAVID L. WILLIAMS, IN HIS CAPACITIES
AS PRESIDENT OF THE KENTUCKY
STATE SENATE AND OFFICIAL
REPRESENTATIVE OF ALL MEMBERS
OF THE KENTUCKY STATE SENATE
APPELLEES
DISSENTING OPINION BY JUSTICE ROACH
Were the power of judging joined with the legislative, the life and liberty of
the subject would be exposed to arbitrary control for the judge would then
be the legislator.
The Federalist No. 47, at 376 (J. Madison) (J. Hamilton ed. 1869) (quoting Montesquieu) .
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.
Kentucky Constitution § 28 .
Each House of the General Assembly shall judge of the qualifications,
elections and returns of its members, but a contested election shall be
determined in such manner as shall be directed by law.
Kentucky Constitution §38.
This case does not concern whether Dana Seum Stephenson is a resident of
Kentucky or who should serve as the Senator from the 37th District . Instead, it presents
only the issue of whether the courts may interfere with the General Assembly's power to
decide the elections, returns, and qualifications of its members under Section 38 of the
Kentucky Constitution . The plain words and historical meaning of Section 38 are clear :
The courts of this Commonwealth have no right to interfere with a decision of a house of
the General Assembly concerning the qualifications, elections, and returns of its
members. Since the majority opinion ignores this precept, thereby violating the
Kentucky Constitution and years of this Court's precedent, I respectfully dissent.
Our predecessor court was faced with a similar question in Taylor v. Beckham ,
108 Ky. 278, 56 S .W. 177 (1900), over the seating of the governor and the lieutenant
governor following the election of 1899. The Court courageously refused to override the
constitutionally mandated requirement of separation of powers, Ky. Const. §§ 27, 28,
and thereby allowed the General Assembly to exercise the powers expressly delegated
to it. What is particularly noteworthy is that the Court chose to defer to the General
Assembly's decision even though the underlying facts giving rise to the controversy
were simply outrageous. A brief understanding of those facts is important to truly
understand the significance of Taylor v. Beckham.
The 1899 election for governor pitted the Republican Attorney General, William
S. Taylor, against Democrat State Senator, William Goebel. Dr. Clark described the
ferment that began as the Election Day ended :
When the ballots were cast, the people waited calmly
for the announcement of the results. First unofficial returns
indicated that Goebel and Taylor were in a neck-and-neck
race for the election . The final official count gave Taylor a
majority, and this was the signal for the Democrats to start
challenging votes. It was claimed that Governor Bradley's
troops had prevented an honest election in Louisville . Most
outrageous of all, however, was the fact that by political
chicanery or "oversight," votes of many eastern Republican
counties were registered upon "tissue paper" ballots, which,
it was claimed, were not printed on legal weight paper . This
charge, a fine piece of Kentucky political chicanery, was
trumped up to throw out the election .
Thomas D. Clark, A History of Kentucky 439 (1988) .
At that point the matter was turned over to the state election board, over which
Goebel was supposed to have absolute control. Id . at 440.
r
One week before
inauguration day, the board declared by a 2-1 vote that Taylor had defeated Goebel by
This election board had been created in 1898 as a part of the Goebel Election
Law. Thomas D. Clark, A History of Kentucky 436 (1988) . "Senator Goebel virtually had
the Kentucky electorate in his power, since he was entrusted, as a reward for his
activities, with the selection of the first state board of election ." _Id. One Democratic
paper denounced the legislation as a "piece of Goebel machination." Id.
over 2,000 votes . Id. The election of 1899 seemed to be over, and Taylor was
inaugurated. However, a Goebel Democrat filed a protest with the General Assembly,
alleging that Taylor had benefited from the "corrupt use of funds ." Id . The General
Assembly selected a joint committee, dominated by Democrats, to address the claims .
On January 30, 1900, while the committee was still deliberating, Goebel was shot as he
was approaching the Capitol building .
Governor Taylor declared the Commonwealth in a state of insurrection and
ordered the General Assembly to meet in London . The state militia refused to allow the
General Assembly members into the Capitol building. Id . at 441 . The "Democratic
legislators refused to recognize the legality of [Taylor's] actions . . . ... Lowell H. Harrison
and James C. Klotter, A New History of Kentucky 272 (1997) [hereinafter Harrison and
Klotter, A New History . They subsequently met in secret at a hotel in Frankfort, where,
without a Republican legislator present, "they accepted the contest committee's report
regarding the disputed election, threw out enough votes to reverse the results, and on
January 31, 1900, declared Goebel governor." Id . Historian James Klotter has
described the meeting in even more sinister language :
Determined Democrats denied that any state of
insurrection existed. The only danger came from
Republicans, they insisted . To adopt the committee report
required a joint session, yet no public building large enough
could be obtained because of the soldiers . But Goebel must
be declared governor and Taylor must be ousted .
Later in the afternoon word came privately to each
Democratic member to meet in the Capitol Hotel that
evening. The instructions asked them to assemble
separately, not in groups, and then to come one by one to a
second floor room. A legislator present at the time recalled
how "the lights at the meeting were dimmed and the
proceedings carried in a low tone of voice." A quorum of
nineteen senate Democrats and fifty-three from the house
was announced as present, though those attending were not
certain of the numbers. The group then heard the joint
committee report, adopted it unanimously, and declared
William Goebel the rightful governor. It had been less than
thirty-six hours since he was shot.
James C. Klotter, William Goebel : The Politics of Wrath 104 (1977) .
Goebel was sworn in as governor and died a few days later. His lieutenant
governor, J .C .W. Beckham, then took the reins. Harrison and Klotter, A New History
273. Kentucky then appeared to have two competing governments, and the matter
went to the courts . Though the resulting case, Taylor v. Beckham , 108 Ky. 278, 56
S.W. 177 (1900), will be discussed at length below, I note that our predecessor court
faithfully followed the Constitution of Kentucky and allowed the General Assembly's
decision to stand, even though it had been made in secret and without the benefit of the
attendance of any member from the minority party, and was, by all accounts, in
complete defiance of the facts. Ultimately, the Court's refusal to intervene allowed the
candidate who lost the election by over 2,000 votes to be seated as the governor. In
allowing this seemingly perverse result, the Court explained:
We have no more right to supervise the decision of the
General Assembly in determiningthe result of this election
than we have to supervise the action of the Governor in
calling a special session of the legislature, or in pardoning a
criminal, or the action of the legislature in contracting debts,
or determining upon the election of its members, or doing
any other act authorized by the Constitution.
Id . at 297, 56 S .W. at 181 (emphasis added) .
The decision in Taylor v. Beckham has stood for over 100 years. Yet, today,
without citation or discussion, it has been buried along with Sections 28, 38, and 43 of
the Constitution of Kentucky . Because I believe that Taylor v. Beckham and our
Constitution deserve a decent funeral, I offer this eulogy.
-5-
t . Jurisdiction--First Principles
To begin with, I do not believe this case should even be before the Court. In
January 2005, the Franklin Circuit Court issued a temporary injunction against
Stephenson . A motion for interlocutory relief was promptly filed with the Court of
Appeals, and we transferred the motion to our own docket . In March 2005, rather than
reaching the merits of the controversy, the Court issued a short Opinion and Order,
upholding the temporary injunction on grounds that the trial court had not abused its
discretion . Justice Keller, joined by Justice Scott, filed a vigorous dissent in which he
argued that the majority failed to answer the more fundamental question of whether the
circuit court, indeed gny Kentucky court, had jurisdiction to pass on the issues raised by
the litigants . Justice Keller reasoned, I think persuasively so, that because Section 38
of the Kentucky Constitution grants to the Senate the exclusive power to judge the
elections, returns, and qualifications of its own members, the courts have no power, and
thus no jurisdiction, to decide such issues . Justice Keller also concluded that the
jurisdiction to decide the bona fides of a candidate, as allowed by KRS 118 .176, ceases
to exist once the election begins .
Unfortunately, the Court chose not to publish its Opinion and Order, thus Justice
Keller's dissent remained unpublished. But I happen to agree with Justice Keller's
reasoning, both as to Section 38 and KRS 118.176, and think that the Court should
have disposed of this case when it first had the chance in March 2005 . I also agree that
the question of jurisdiction is fundamental in this case . While the case's procedural
posture has shifted extensively since Justice Keller wrote his dissent, it would be an
exercise in repetition for me to attempt to recreate the substance of Justice Keller's
extensive critique and in futility for me to try to surpass the quality of the opinion on
those issues . I also think that Justice Keller's dissent should have been published
initially. Therefore, I have decided to adopt and incorporate it into my own opinion as a
statement of the fundamental principles underlying my own dissent. The following
lengthy passage, demarcated by two sets of five asterisks, is the complete text of
Justice Keller's dissent.t
DISSENTING OPINION BY JUSTICE KELLER
I . INTRODUCTION
The majority has declined to address the merits of the case, choosing instead to
limit its review to whether the Franklin Circuit Court abused its discretion in granting the
temporary injunction . While I agree that it is not necessary to address the merits, I
disagree with the artificial limitation on our review that the majority has chosen to
impose. This is because the real issue-and one which must first be resolved before
t I have made a few changes to the text of Justice Keller's opinion, but these are
limited to (1) converting his footnote designations from numbers to lower-case letters in
order to differentiate his footnotes from my own, which are denoted by symbols before
the quoted dissent and numbers afterward ; (2) correcting typographical errors that
slipped through what was no doubt an expedited writing and editing process in March
2005 ; and (3) correcting the paragraph structure of the quotation associated with
footnote h, the citation in footnote o, and the omission of two words from the text of the
quotation associated with footnote u.
ever reaching any other issue, including the one purportedly addressed in the majority
opinion--is whether the circuit courts ever had jurisdiction to consider this case.
Because the Kentucky Constitution contains an express separation of powers among
the three branches and provides that the Senate itself shall be the sole judge of the
qualifications and elections of its members, the Court of Justice, as a whole, lacks
jurisdiction in this case . But by ignoring these foundational aspects of our Constitution,
indeed, by failing even to ask the question of whether the circuit court had jurisdiction ,
the majority opinion, in allowing the temporary injunction to stand, permits the circuit
court to continue to consider a matter that is expressly reserved to another branch of
our government. The question of jurisdiction, however, is paramount and must be
addressed . For this reason, I respectfully dissent.
Movant, Dana Seum Stephenson, seeks relief from a temporary injunction
granted by the Franklin Circuit Court. The substantial probability of success at trial by
the moving party, which was Respondent, Virginia L. Woodward, in the circuit court, is a
controlling issue in determining whether to issue a temporary injunction . a If the circuit
court lacks jurisdiction, then, obviously, there is no possibility of success at trial and a
temporary injunction may not issue . But more importantly, consideration of that
question would require submitting to the trap that the majority has fallen into because if
jurisdiction does not exist, the question of the appropriateness of a temporary injunction
is entirely premature. Thus, I focus my analysis on the preliminary question of
a
Maupin v. Stansbuly, 575 S.W.2d 695 (Ky. App . 1978); 7 KURT A. PHILIPPS, JR .,
KENTUCKY PRACTICE, RULES OF CIVIL PROCEDURE ANNOTATED, Rule 65 .04, cmt. 2 (5th ed .
West Group 1995).
jurisdiction, i .e., the fundamental condition precedent for the exercise of power by a
court.
11. THE GENERAL ASSEMBLY HAS EXCLUSIVE JURSIDICTION TO DETERMINE
THE ELECTIONS AND QUALIFICATION OF ITS MEMBERS
In granting the temporary injunction in this case, the Franklin Circuit Court,
relying in part on Rose v. Council for Better Education b stated that "[t]he Judicial
Branch clearly has jurisdiction to consider and review whether actions of the Legislative
Branch violate the Kentucky Constitution ." While this is generally correct, if the
Constitution expressly removes a given question from the purview of the Court of
Justice, then none of the Commonwealth's courts may address the question . Section
38 of the Kentucky Constitution appears to have done exactly that : "Each house of the
General Assembly shall judge of the qualifications, elections and returns of its
members, but a contested election shall be determined in such manner as shall be
directed by law."
The question of whether the Kentucky Constitution grants the courts jurisdiction
to decide election matters after an election has been held is well-settled law. As Judge
McCrary noted more than one hundred years ago: "The courts will not undertake to
decide upon the right of a party to hold a seat in the Legislature, where by the
constitution each house is made the judge of the election and qualifications of its own
members . . . ." d More importantly, our own precedent firmly holds that jurisdiction to
decide such election questions lies exclusively in the hands of the General Assembly .
b
790 S.W.2d 186 (Ky. 1989).
c KY . CONST. § 38 .
237
d GEORGE W. MCCRARY, A TREATISE ON THE AMERICAN LAW OF ELECTIONS § 317, at
(4th ed. 1897) [hereinafter MCCRARY, AMERICAN LAW OF ELECTIONS] ; see also id. §
In Taylor v. Beckham,' our predecessor court was faced with the interpretation of
Section 90 of the Kentucky Constitution, which provides, in language strikingly similar to
that contained in Section 38, that "[c]ontested elections for Governor and Lieutenant
Governor shall be determined by both Houses of the General Assembly, according to
such regulations as may be established by law." W.S. Taylor and VVilliam Goebel were
candidates for Governor in the 1899 election . John Marshall and J .C .W. Beckham were
candidates for Lieutenant Governor. Taylor and Marshall received the majority of votes
in their respective races. After the election, their opponents initiated an election contest
by giving notice to the General Assembly. When the General Assembly convened in
January 1900, it initiated an election contest inquiry as prescribed in the statutes passed
pursuant to Section 90. On February 2, 1900, the General Assembly declared Goebel
and Beckham to have been elected governor and lieutenant governor in the November
1899 election . Taylor and Marshall sought remedy from the courts .
The Court of Appeals ultimately declined to decide the case, holding that the
Constitution gave the Legislature exclusive jurisdiction over the matter and that "the
courts are without jurisdiction to go behind the record made by the legislature under the
constitution ."f In reaching this decision, the Court noted that Section 27 of the
377, at 285 ("Nor will mandamus be available for one claiming a seat in a State
Legislature where the Legislature is empowered to judge the election of its members .").
e 108 Ky . 278, 56 S .W. 177 (1900) .
f Id. at 182. It should also be noted that after losing their case before our
predecessor court, Taylor and Marshall sought review by the United States Supreme
Court on the grounds that their Fourteenth Amendment property rights and the
constitutional guarantee of a republican form of government had been denied . Taylor v.
Beckham , 178 U.S. 548, 20 S .Ct. 890 (1900) . The Supreme Court noted that "public
offices are mere agencies or trusts, and not property as such," _id. at 577 (emphasis
added), and that enforcement of the republican form of government "guaranty belonged
-1 0-
Constitution provides strict separation of the legislative, executive, and judicial powers,
and that "the state constitution was intended to maintain the absolute independence of
the legislative branch of the government . . . ."9 The Court also noted:
[T]he judiciary have no power to sit in judgment upon the
motives of an independent branch of government, or to deny
legal effect to the record of its actions solemnly made by it
pursuant to the constitution . If this were allowed, it would
soon follow that the independence of the legislature would
be destroyed altogether . . . .
The constitution of this state creates the offices of
governor and lieutenant governor . It provides how they shall
be filled by election . It also provides how the result of that
election shall be determined . In each of the four constitutions
of this state the general assembly has been made the
exclusive tribunal for determining this matter . This shows a
clear and settled purpose to keep this political question out
of the courts . We have no more right to supervise the
decision of the general assembly in determining the result of
this election than we have to supervise the action of the
governor in calling a special session of the legislature, or in
pardoning a criminal, or the action of the legislature in
contracting debts, or determining upon the election of its
members, or doing any other act authorized by the
constitution . h
Siding with Taylor and Marshall would have required that the Court "usurp[] the
power vested in the general assembly by the constitution, for by its express terms only
the general assembly can determine a contested election for governor and lieutenant
to the political department." id . at 578 . As such, the Court ruled that the case fell
outside its jurisdiction and dismissed the case . Id. at 581-81 .
9 Beckham, 56 S.W. at 179 (emphasis added).
h Id . at 181 (emphasis added).
governor."' And consequently, the Court held that "It1he courts have no right to
adjudicate upon these Questi ons, or to decide such contests."''
Though the Beckham Court was faced with interpreting Section 90, due to the
similarity between the two sections, it also addressed Section 38. And though the
applicability of the analysis above to Section 38 is obvious, given that Section 38 grants
to the General Assembly the power to determine the elections and qualifications of its
own members, some of this discussion is included to show that the question of the
courts' jurisdiction, or more appropriately the lack thereof, has already been considered
and addressed by our courts . First of all, the Court noted : "It will be observed that the
.,,k
.
phraseology [of section 38] is substantially the same as section 90
The Court
then posed the following hypothetical situation:
Suppose these suits had been brought by two members of
the general assembly, alleging, in effect, the same facts as
are alleged in this case, would anybody suppose that the
judiciary of the state would have the power to go behind the
legislative journals, or to supervise the propriety of the
legislative action, in determining the election of its members?
Could a member of the general assembly, who had received
a certificate from the canvassing board, and been afterwards
ousted from the house to which he belonged on a contest,
allege and show that the house had acted arbitrarily,
depriving him of a pre-existing right, and denying to him the
emoluments of the office for the term? Could it be
maintained that such action by either house of the general
assembly violated any protection afforded him by the
constitution of the United States, or that for this cause the
action of the state authorities under the state constitution, by
' Id. at 182.
' Id. at 183 (quoting Batman v. Megowan, 1 Met. 533, 58 Ky. 533 (Ky. 1859))
(emphasis added) ; see also MCCRARY, AMERICAN LAW of ELECTIONS § 386, at 291 ("The
doctrine announced is that courts of equity have no inherent power to try contested
elections, and can only exercise such power where it has been conferred by express
enactment, or necessary implication therefrom.").
k Beckham, 56 S .W. at 184.
-1 2-
virtue of which he claimed to have been elected, might be
overruled?'
The Court's use of the hypothetical as evidence of why Section 90 prohibited the courts
from interfering with the General Assembly's decision under that section assumed that it
was inconceivable that the courts would interfere with a decision of the General
Assembly made under the similar lanouaae of Section 38. The Court also stated that
the United States Supreme Court had answered these questions posed by its
hypothetical in Wilson v . North Carolina ."' In Wilson, a state officer, who had been
arbitrarily removed from office, applied to the Supreme Court for redress, but his case
was dismissed_for want of jurisdiction . The Beckham Court then noted:
If the state may arbitrarily remove an officer once appointed,
we see no reason why it may not provide such means a[s] it
sees proper for the determination of its own elections. If it
has not such power, then its sovereignty as a state exists
only in name . The congress of the United States has, by the
constitution, the power to judge of the qualifications,
elections, and returns of its members . In not a few cases it
has been supposed to have acted arbitrarily in such matters,
but it was never maintained that one who was ousted of his
seat in congress on a contest could take the matter into the
courts to supervise the action of congress on such grounds
as are alleged in this case . Yet the power of congress, under
the constitution, in determining which of two claimants was in
fact elected to a seat in that body, both being admittedly
qualified, is, under the constitution, just the same as the
power of our general assembly in determining a contested
election for governor and lieutenant governor. n
Our predecessor court addressed Section 38 specifically, and more recently, in
Raney v. Stovall , ° where Raney, a state senator, was appointed as a deputy sheriff
Id .
"' 169 U .S . 586, 18 S.Ct. 435 (1898) .
" Beckham , 56 S .W. at 184 (emphasis added) .
° 361 S .W.2d 518 (Ky. 1962).
-1 3-
halfway through his term as senator. The Senate passed a resolution stating that
Raney was "a duly qualified senator"P even though, as the Court noted, it was quite
possible that "the office of senator and deputy sheriff are incompatible and the
acceptance of the second office vacates the first.
,q
Rather than declaring Raney
unqualified and removing him from office, the Court stated that "authoritative
adjudications are to the effect that the right of a legislative body to judge the
qualifications of its members includes the right to decide finally whether or not one of
them has become disqualified during his term of office, and this decision is not subject
to court review.,, r This is because "the vesting of certain powers in a legislative body
may constitute exclusive power to pass upon the qualifications of its members, thereby
depriving the court of authority to adjudicate on that subject."'
Section 38 is just such a vesting of power in the legislature . Thus, as in Raney,
Appell[ant] suggests the action of the Senate with
respect to [Stephenson] constituted such a clear violation of
the Constitution that the courts should rectify the error.
However, the fact that the legislature may make a wrong
decision is no reason why the judiciary should invade what
has been designated as the exclusive domain of another
department of government. See Taylor v. Beckham , 108 Ky.
278, 56 S .W. 177, 49 L.R .A. 258. We must assume the
Senate in good faith will not knowingly permit violations of
other constitutional provisions. With respect to this subject
matter, the people have reposed that responsibility in the
legislature. The courts are without jurisdiction to review its
solemn determination . t
Id. at 519 .
Id.
Id. at 521-22 .
S
_Id. at 523 .
t
Id . at 523-24.
P
4
-1 4-
Though the facts in this case differ from Beckham, insofar as the issue involved
an election contest over executive offices, and from Raney , insofar as the senator in
question had already been deemed qualified, the principles involved are identical . The
Kentucky Constitution says what it means and means what it says: The houses of the
General Assembly shall judge of the qualifications, elections, and returns of their
members. "The doctrine of separation of governmental powers runs like a golden
thread throughout the fabric of our government."' Kentucky is one of the few states to
incorporate the notion of separation of powers so explicitly in our Constitution . As such,
"'[e]ach to it own' is the law of the Constitution which . . . the Judiciary . . . must obey.""
That the power to determine the elections and qualifications of its own members is
granted exclusively to the General Assembly, not to the Courts, is beyond question .
In this case, the Senate exercised that power by finding that Stephenson was
qualified to serve as a senator. And though the General Assembly might, by some
objective measure, have been wrong, "[w]hether the assembly was right or not in its
decision, it is not our province to determine."'
But a much more important question is involved in the case,
which is the integrity of our form of government as founded
by our forefathers. If the action of the legislature may be
disregarded by the courts, then it is no longer an equal and
independent branch of the government within its
constitutional jurisdiction, but the courts become the final
depository of the supreme power of the state. Judicial
tyranny_ is no less tyranny because couched in the forms of
law. There was great wisdom in dividing the powers of a
republic between three equal and independent sets of
officers .One operates as a check upon the other, and no
" In re Appointment of Clerk of Court of Appeals, 297 S .W.2d 764, 767 (Ky. 1957)
(citation omitted) .
v Id .
'"
Beckham , 56 S.W. at 184.
-1 5-
greater blow to the perpetuity of our institutions could be
given than to destroy this check . "
As such, the only reasonable conclusion is that the power to decide elections of
members of the General Assembly is vested solely in the General Assembly itself, and
that the courts lack any power even to entertain the questions presented.
111. KRS 120 .195 AND KRS 118.176
The Franklin Circuit Court held that the General Assembly conferred jurisdiction
on the courts by promulgating a statutory scheme for the settling of election contests
pursuant to the mandate of the last half of Section 38. This holding is clearly in error.
KRS 120.195 provides the statutory framework for contesting an election for a position
in the General Assembly . The statute prescribes when and how an election contest is
to be initiated and how proof is to be taken . Nowhere does the statute declare that the
courts may participate in this decision-making process . In fact, the statute does not
even say that the General Assembly is to decide the question . This is because Section
38, which takes precedence over any statute, already declares that "[e]ach house of the
General Assembly shall judge of the . . . elections and returns of its members. . . ."
Section 38's final independent clause only requires that this determination proceed
according to law. And as such, the statutory mechanism that has been enacted to carry
out the command of this final independent clause sets out the procedure to be followed
by a house of the General Assembly, not a court, in making the ultimate decision . This
is likely why the circuit courts did not rely on this statute in claiming jurisdiction .
" Id.
-1 6-
Instead, the Franklin Circuit Court relied heavily on KRS 118.176, which provides
the means for challenging the "good faith" or "bona fides of [a] candidate," and on the
fact that the Jefferson Circuit Court had, ostensibly, issued a ruling pursuant to this
statute. The Franklin Circuit Court maintained that an action under KRS 118 .176 was
an election contest as contemplated by Section 38 of the Constitution, and that, as
such, it had jurisdiction to hear the case . But "[i]t is important to distinguish between an
election contest and a pre-election lawsuit." Z "An election contest obviously is a postelection procedure, involving an election that has been held, as distinguished from a
pre-election suit to determine whether a person may be voted on as a candidate . i,aa As
we have noted before, the pre-election challenge as to the "qualifications" of a
,bb
candidate allowed in KRS 118 .176 "is technically not an election contest.
Thus, it is
clear that this statute does not provide the means for pursuing an election contest, and
that it is not a means of maintaining the courts' jurisdiction after the election .
This makes sense because the statute, by its own terms, allows only a means to
challenge the "bona fides" of a candidate:
The bona fides of any candidate seeking nomination
or election in a primary or general election may be
questioned by any qualified voter entitled to vote for such
candidate or by an opposing candidate by summary
proceedings consisting of a motion before the Circuit Court
of the judicial circuit in which the candidate whose bona fides
is questioned resides. cc
y KRS 118.176 (emphasis added) .
Z Noble v. Meaggher, 686 S.W.2d 458, 460 (Ky. 1985).
as
Fletcher v. Wilson, 495 S.W.2d 787, 791 (Ky. 1973); accord KRS Chapter 120.
bb
Noble , 686 S.W.2d at 461 .
KRS 118.176(2) .
-1 7-
A "bona fide" candidate, however, is merely "one who is seeking nomination in a
primary or election in a general election according to law. ,dd Once the election is held,
the person is no longer seeking nomination or election-that question has been decided
by the voters . Indeed, once the election is held, the persons are no longer even
"candidates." Rather, their race has been run and the winner has been decided by the
voters . All that remains is to review the returns to ascertain the identity of the winner.
The process of voting has transformed the candidates so that, in the case of a senate
race, all that remains is a senator elect, who has a prima facie claim to the office, and
the loser(s), who has no claim to the office .
Some might argue that this is a matter of mere semantic quibbling, but such a
reading is supported by the distinction in Noble and Fletcher between pre-election
challenges to who may be voted on as a candidate and a post-election "contest" to
determine who is the lawful winner of the election . This reading is also necessary for
the statute to pass constitutional muster, at least as applied to elections to the General
Assembly . The circuit courts in this case have assumed that the portion of the statute
that allows an action under KRS 118.176 to "be commenced at any time prior to the
general election ,,ee means that as long as an action challenging the bona fides of a
candidate is filed before the election begins, the bona fides, and thus the qualifications,
of a candidate can then be determined, even if the determination does not occur until
after the election . This reading is simply incorrect. For the courts to retain jurisdiction
over such a case involving an election to the General Assembly after the election simply
because the action was begun before the election would allow the courts to
dd
KRS 118 .176(1) (emphasis added).
-18-
unconstitutionally invade that which is the exclusive province of the General Assembly .
As discussed above, Section 38 vests in the General Assembly sole jurisdiction to
determine the elections and qualifications of its own members. This couldn't be any
clearer, especially when viewed in light of the pre- versus post-election division
contemplated by Noble and Fletcher.
This also makes sense from a policy perspective. The voters need to know for
whom they will have the opportunity to vote when they go to the polls ; thus the ballot
needs to be finalized before the election . This is why the statute allows the use of oral
proof, requires that the action "be tried summarily and without delay,"ff and provides for
an accelerated review by the Court of Appeals . 99 A speedy determination of the slate of
candidates is all the more important in light of the dual function of voting : "[I]t must be
remembered that those constituting the majority or plurality not only vote for the
candidate or measure of their choice, but they also vote against the other candidate or
candidates, and against the opposing side of the submitted measure.',hh Allowing the
circuit court to decide after the election that a candidate is not bona fide does a
disservice to the candidates and to the voters, who are, in effect, disenfranchised
because their votes, which they had thought were validly cast, are directed not to be
counted. Nowhere is this more true than in those races where there are more than two
candidates ; those voters whose candidate of choice is later disqualified are deprived not
only of voting for their first choice, but also their second choice . Thus, it is clear that the
ee
KRS 118 .176(2) .
KRS 118 .176(4) .
ge _Id .
hh
McKinney v. Barber , 180 Ky . 526, 203 S .W. 303, 306 (1918) .
_ 1 9_
Legislature intended the statute to provide a fast and efficient means of challenging the
"bona fides" of a candidate before the election ."
Obviously, the action allowed in KRS 118.176 is, at most, complementary to the
process envisioned by Section 38 of the Kentucky Constitution . In elections to the
General Assembly, KRS 118.176 is applicable before the election takes place. After the
election, any pending KRS 118.176 action is moot and the question of the bona fides of
a "candidate" is irrelevant because Section 38 of the Constitution comes into play . In
fact, the court's jurisdiction after the election is limited only to ordering the election
officers to execute their duties, i.e ., to certify the results shown on the returns .b KRS
118.176 and Section 38 (and KRS 120.195) govern two distinct spheres-the preelection period and the post-election period . The distinction between the two is more
than just good policy or compliance with arbitrary rules ; rather, the distinction is
constitutionally mandated and is an integral part of Kentucky's separation of powers
doctrine . Thus, it is clear that KRS 118.176 is not the means for pursuing an election
contest; it does not provide a means of challenging anything after the election is over.
" See also Noble v. Meagher, 686 S .W.2d 458, 461 (Ky. 1985) ; Fletcher v.
Wilson, 495 S .W.2d 787, 791 (Ky. 1973).
MCCRARY, AMERICAN LAW OF ELECTIONS § 317, at 237 ("The courts will not
undertake to decide upon the right of a party to hold a seat in the legislature, where by
the constitution each house is made the judge of the election and qualifications of its
own members; but a court may by mandamus, compel the proper certifying officers to
discharge their duties and arm the parties elected with credentials necessary to enable
them to assert their rights before the proper tribunal . And, inasmuch as canvassing and
returning officers act ministerially and have no power to go behind the returns, or inquire
into the legality of votes cast and returned, a court will by mandamus compel them to
declare and certify the result as shown by the returns , because that is their plain duty;
but the award of a certificate of election under such mandate, will not conclude the
legislative body in determining the election ." (footnotes omitted)).
D
-20-
Consequently, it is incumbent on the challenger who wishes to proceed under
KRS 118 .176 to file such an action sufficiently in advance to allow the circuit court to
determine the candidate's bona fides before the election . But Woodward did not file her
challenge in time, and KRS 118.176 cannot be used now to invoke the jurisdiction of the
courts . The courts' jurisdiction under KRS 118 .176 evaporated when the polls opened
on November 2, 2003. The responsibility, indeed, the power, to make the decision then
fell solely to the Senate under § 38 of the Constitution . Thus, because Stephenson's
bona fides were not found lacking before the election, Woodward's claim in that regard
was rendered moot once the election began, and the decision of the Jefferson Circuit
Court ordering the Jefferson County Board of Elections not to count Stephenson's votes
is void .
IV . CONCLUSION
We should admit that this is a pure political question, and that, as such, we
cannot answer it. That task is left to the Legislature itself. And if the people, from whom
all the power of this Commonwealth derives, kk do not like the Legislature's answer, they
may act to correct it through the political process, for they are the ultimate check on
abuse by the government. Thus, the power to resolve this wholly political issue
ultimately lies in the body politic. The majority opinion, however, under the guise of
maintaining the status quo, ignores these democratic principles by allowing the circuit
court to continue to interfere where it is only the Legislature's, and thus the people's,
kk
KY . CONST. § 4 ("All power is inherent in the people, and all free governments
are founded on their authority and instituted for their peace, safety, happiness, and the
protection of property . For the advancement of these ends, they have at all times an
inalienable and indefeasible right to alter, reform or abolish their government in such a
manner as they may deem proper .").
-2 1-
prerogative to tread . And in doing so, the majority adds insult to injury because the
concurrence of the Senate's refusal to seat Woodward, when it has found that
Stephenson was properly qualified and elected, with the circuit court's refusal to allow
Stephenson to be seated has served to deprive the 37th Senatorial District of
representation in the Senate .
Where the remedy lies exclusively in the hands of another branch of government,
as is the case here, the circuit court may not even address the issue . In such a case,
the Court of Justice as a whole has "no iurisdiction to act at all ." mm Thus, the circuit
court lacked the power even to consider Woodward's case, much less to grant the
temporary injunction, and any order issued in the case, other than one to dismiss for
lack of jurisdiction, is void . Because the majority disregards this longstanding rule by
allowing the Franklin Circuit Court's temporary injunction to remain in place, thus
11 See MCCRARY, AMERICAN LAW OF ELECTIONS § 203, at 227-28 ("If the office were
to remain vacant pending the contest it might frequently happen that the greater part of
the term would expire before it could be filled ; and thus the interests of the people might
suffer for the want of the services of a public officer. Besides, if the mere institution of a
contest was to be deemed sufficient to prevent the swearing in of the person holding the
usual credentials, it is easy to see that very great and serious injustice might be done . If
this were the rule, it would only be necessary for an evil disposed person, to contest the
right of his successful rival, and to protract the contest as long as possible, in order to
deprive the latter of his office for at least a part of the term. And this might be done, by a
contest having little or no merit on his side, for it would be impossible to discover, in
advance of an investigation, the absence of merit. And again, if the party holding the
ordinary credentials to an office, could be kept out of the office by the mere institution of
a contest, the organization of a legislative body, such for example as the House of
Representatives of the United States, might be altogether prevented, by instituting
contests against a majority of the members, or what is more to be apprehended, the
relative strength of political parties in such a body might be changed, by instituting
contests against members of one or the other of such parties. These considerations
have made it necessary to adopt, and to adhere to, the rule, that the person holding the
ordinary credentials shall be qualified, and allowed to act pending a contest and until a
decision can be had on the merits .").
-2 2-
preserving a status quo that the circuit court had no legitimate power to bring about in
the first place, I respectfully dissent.
Scott, J., joins this dissenting opinion.
fl. Jurisdiction-Further Thoughts
The majority has sidestepped the jurisdictional hurdle and reached the merits of
the controversy by holding that the courts in Kentucky have jurisdiction to determine the
qualifications of a candidate under KRS 118.176, even if that determination occurs after
an election is held, so long as the challenge to the candidate's qualifications was filed
prior to the election . In essence, the majority argues that because the statute contains
only the requirement that the challenge be initiated before the election--and does not
contain any additional requirement that the challenge be decided before the electionthe Jefferson Circuit Court's jurisdiction necessarily continued after the election was
held . The majority claims that this resolves the controversy because there was no
appeal of the Jefferson Circuit Court's ruling that Stephenson was not a qualified
candidate and that the Jefferson County Board of Elections was enjoined from counting
any votes cast for her. Thus, the order is still in effect, meaning that Stephenson cannot
be seated as a Senator.
mm R .H .
Hobbs Co. v Christian, 325 S .W.2d 329, 335 (Ky . 1959) (emphasis
added) .
-23-
Like Justice Keller, I think that a court's jurisdiction to decide an action brought
under KRS 118 .176 "evaporates" once the election begins. The clear intent of the
statute is to prevent voters from casting their votes for non-bona-fide candidates, not to
nullify those votes after the fact of their casting . I continue to believe that this case can
and should be disposed of on the jurisdictional grounds elucidated by Justice Keller .'
While I have only a little to add to his analysis, the majority's reliance on KRS 118.176
as the claimed source of jurisdiction over this controversy requires some additional
response on my part.
The majority opinion goes on at great length, spending a full third of its text, in an
attempt to refute Justice Keller's contention that jurisdiction to decide a cause of action
brought under KRS 118.176 ceases after the election begins . As Woodward's brief
notes, such an approach is not completely unprecedented in our case law. Indeed,
there are a few Kentucky opinions involving challenges under the statute, or an earlier
In reaching this conclusion, I recognize that the federal courts, in approaching
the federal constitutional analog of Section 38--Article I, section 5, of the United States
Constitution-have held that while they technically have subject-matter jurisdiction over
such disputes, they present non-justiciable political questions that cannot be decided by
the judiciary . See, e .q . , Mclntyre v. Fallahay , 766 F .2d 1078 (7th Cir. 1985). This
approach makes sense given that cases that are only tangentially related to Article (,
section 5, but that are nonetheless decidable by the courts can arise. E.g., Powell v.
McCormack, 395 U .S. 486, 89 S.Ct. 1944, 23 L.Ed .2d 491 (1969) . To be fair, however,
it has been noted elsewhere that the holding in Powell was basically that "Article I,
section 5 had no application, since the House action in question did not consist of
judging `qualifications' within the meaning of the provision." Morgan v. United States ,
801 F.2d 445, 448 (D .C .Cir. 1986) . Nevertheless, I continue to employ the lack-ofjurisdiction concept because our case law, which relies in part on our strict separation of
powers provisions, has historically held that Section 38 bars jurisdiction . Even among
the federal courts, such an approach is not unheard of. See id. at 447 (holding in a case
involving Article I, section 5, that "without need to rely upon the amorphous and partly
prudential doctrine of `political questions,' we simply lack jurisdiction to proceed."
(citations omitted)) . Ultimately, however, it makes no difference which approach we
-2 4-
analogous statute, where a decision as to a candidate's bona fides was rendered after
the disputed election . See Noble v. Meagher , 686 S .W.2d 458 (Ky. 1985) (rendered in
February 1985, following the November 1984 election) ; Fletcher v. Wilson, 500 S.W.2d
601 (Ky. 1973) [hereinafter Fletcher II (rendered in October 1973, following the May
1973 primary election); Hoffman v. Waterman , 141 S.W .3d 16 (Ky.App. 2004) (the
circuit court did not rule until 46 days after the 2004 primary election). But Noble is
inapplicable because the Court failed to reach the merits of the KRS 118.176 issue.
Instead, the Court disposed of the case by vacating the order of the circuit court
because the cause had been brought in the wrong court, which therefore had no
jurisdiction . In Hoffman, the Court of Appeals declined to find that the candidate was
unqualified . Such a result is not entirely inconsistent with declining jurisdiction,
especially when one considers the court's reasoning, based on Heleringer v. Brown, 104
S .W.3d 397 (Ky. 2003), that the public policy in favor of broad voter participation
supports allowing a candidacy to continue . Moreover, the mere fact that the Court of
Appeals accepted jurisdiction in that case is not binding precedent on this Court.
Realistically, the only case that gives me pause in this regard is Fletcher II . In
that case, our predecessor court held, after the primary election had been completed,
that a candidate for the Democratic nomination for the office of local magistrate had not
properly filed his candidacy papers. Therefore, he "was not entitled to have his name
on the ballot, and, thus not being a qualified candidate, [could not] be awarded the
take because both lead to the same result, since courts simply will decline to decide
these cases no matter which rationale they choose.
2 I note in passing, however, that the majority opinion surprisingly fails to cite
these cases for the proposition that KRS 118.176 jurisdiction continues after the
election .
-25-
nomination ." Fletcher 11 , 500 S.W.2d at 607. As a result, the Court declared that there
had been no valid primary election, leaving the Democratic nomination vacant. At first
glance, this case seems like clear precedent for the majority's claim that jurisdiction to
pass on the question of the qualifications of a candidate continues after the election is
held . But when viewed in the proper context-namely, that this was the second appeal
in the matter--its apparent precedential value is diminished .
The first appeal in the matter, Fletcher v. Wilson , 495 S .W.2d 787 (Ky. 1973)
[hereinafter Fletcher I , was brought to determine if the voter plaintiffs had standing to
challenge the qualifications of a candidate. The Court held that voters indeed had the
right to bring such a challenge, and remanded the case for further proceedings. In
explaining its holding, the Fletcher I Court, as noted above in Justice Keller's dissent,
explicitly distinguished between an election contest and a suit brought to decide
whether a person was a legitimate candidate: "An election contest obviously is a postelection procedure, involving an election that has been held, as distinguished from a
pre-election suit to determine whether a person may be voted on as a candidate ." Id. a t
791 . The Court then noted that "once the primary has been held it determines who will
be the qualified candidate in the general election (subject only to a contest of the
primary) ." Id . The Court also cited voluminous case law for the proposition that
"questions . . . as to the right of a person to be placed on a ballot as a candidate . . .
should be decided before the voting takes place ." Id. at 792 (emphasis added). The
Court repeated this proposition in various forms, like some talismanic mantra, no less
than four more times throughout the remainder of the opinion. Id. at 792-93 ("[T]he real
basis of the holding in the group of cases just above cited is that the eligibility of a
candidate for nomination or elections should . . . be determined before the voting takes
-26-
place." (emphasis added)); id. at 793 ("That holding is consistent with the holding in the
cases hereinbefore discussed, that questions related to the placing of the candidate's
name on the ballot should be determined before the voting ." (emphasis added)) ; id .
(discussing further "the policy . . . that questions of the right of a candidate to be on the
ballot should be decided before the voting takes place ." (emphasis added)); id. at 794
("Thus, there are indications that the policy, that questions of the right of a candidate to
be on the ballot should be decided before the voting takes place, could be extended so
as to preclude postelection contests of general elections on such grounds ." (emphasis
added)).
In light of the strong language used in Fletcher I, it is unclear why the Court
appeared to back away from this stance in the second appeal, especially since Fletcher
I and Fletcher 11 were authored by the same person, Commissioner Cullen . Admittedly,
the Court had somewhat hedged its language in Fletcher I , noting that "questions of the
kind . . . must be raised before the primary." Fletcher I , 495 S .W.2d at 792; see also id .
at 794 (noting "the policy that questions of the right of a candidate to be on the ballot
should be raised before the voting takes place . . . . ); cf. id. at 792 (noting "the rule that
qualification to go on the ballot . . . cannot be raised after the election ."). 3 Despite these
statements, the weight of the discussion in Fletcher I appears to require that a decision
must come before the election is held .
I can only conclude that the inconsistency between the two cases is due to the
fact that, as Chief Justice Palmore noted in his majority opinion in the third appeal, "the
3 The rendition date of Fletcher I--June 1, 1973, after the primary election was
held--will no doubt lead some to claim further internal inconsistency . But, as was noted
-27-
law on this subject partakes of a labrynthian morass . . . ." Fletcher v. Teater, 503
S .W.2d 732, 734 (Ky. 1974) [hereinafter Fletcher 1111 . In that case, the Court appears to
have taken the reins more tightly, given that the Chief Justice himself wrote the opinion,
rather than delegating to a Commissioner as in the earlier cases. In doing so, the Court
ultimately sided with Fletcher I :
It may be conceded also that what was said in the first
Fletcher opinion on the subject of general elections is,
technically, dictum . But opinions are written for the purpose
of assisting lawyers and courts in the practice and
disposition of future cases. The first Fletcher opinion clearly
and unmistakably marks out the path to be followed in this
one .
Id . (emphasis added). In essence, the Court revived the analysis in Fletcher I. This, in
turn, leads me to conclude that Fletcher 11 has no precedential value.
The majority also argues the general rule that once a court acquires jurisdiction
to decide a case, subsequent events cannot defeat that jurisdiction . But, as the majority
itself notes, this is only the general rule . The absolute textual commitment in Section 38
of the power to judge the qualifications, elections, and returns of a legislative body's
members would seem, at the very least, to provide an exception to this general rule .
But even if I were to grant that this general rule, the holding in Fletcher 11 , or the lack of
limiting language in KRS 118 .176 were enough to sustain the majority's conclusion that
jurisdiction over the limited questions that can be raised under KRS 118.176 continues
after the election, I still could not join the majority for the reasons discussed below.
Finally, I must respond to the majority's policy argument that adherence to the
"evaporation" of jurisdiction approach would allow a "recalcitrant judge . . . [to] simply
in the second appeal, "the mandate of this court on [the first] appeal was issued before
-28-
refus[e] to adjudicate the KRS 118.176 motion ." Ante at - (slip op. at 16) . Were such
an unfortunate situation to arise, the aggrieved candidate could seek to compel the
judge to act by applying for one of our extraordinary writs . And though such writs are
difficult to obtain, in an election situation, where time is of the essence, it is likely that
the courts would be sympathetic. Our rules even allow a petitioner seeking such a writ
to request emergency intermediate relief, CR 76.36(4), which, given the statute's
command that "[t]he motion shall be tried summarily and without delay," KRS
118.176(2), would also likely be granted . Moreover, the majority's worst-case scenario
has already happened : The circuit judge in this case admitted at the post-election
hearings that he intentionally waited until after the election to address Woodward's KRS
118.176 petition because it could have been rendered moot had she won the election .
III. Mootness
Even if occurrence of the election does not give rise to a jurisdictional bar to a
cause brought under KRS 118.176, it does render any claim under the statute moot .
Though it was addressed in the context of his jurisdictional discussion, Justice Keller
argued that once the election was over, the winning candidate for Senator becomes a
Senator-elect and is no longer a "candidate" in the sense contemplated by KRS
118 .176 . Yet the statute only allows for a challenge to the bona fides of a "candidate ."
Justice Keller's argument is just as compelling,
if
not more so, when understood as a
claim about mootness, rather than jurisdiction . In fact, given the majority's explicit
reliance on the lack
of
language in KRS 118 .176 requiring that an action brought
thereunder be adjudicated prior to the election in question, this may be the sounder
the primary took place . . . ." Fletcher II , 500 S .W.2d at 603.
-29-
approach . Nonetheless, the effect is the samethe court's power to decide the issues
evaporates because the case no longer presents a live controversy .
Furthermore, even if one were to conclude that the matter presented a live
controversy after the election, meaning that the Jefferson Circuit Court action was not
immediately rendered moot, surely that controversy died once the Senate affirmatively
voted to seat Stephenson as a Senator. At that time, she became a member of the
Kentucky Senate, and that exercise of a constitutionally granted power ended the
controversy and decided the rights of the parties involved . This conclusion, however, is
based on what I think is yet another insurmountable obstacle-one that the majority fails
to address, much less refute-namely, and as discussed below, the inability of any
entity to bind the Senate in its exercise of its constitutionally conferred power under
Section 38.
IV . Binding the Senate
Perhaps most importantly, the majority's approach is built on the fundamentally
mistaken belief that any entity-including the circuit court, this Court, or the state board
of elections-can bind the Senate as to questions related to the qualifications, elections,
and returns of its members. Let us assume that the Jefferson Circuit Court's order
enjoining the Board of Elections from counting any votes cast for Stephenson was valid
and binding . Naturally, the effect of the order was that Stephenson was not certified as
the winner of the election . The majority treats this order, which was not appealed, as
4 This, of course, answers the majority's claim that I have construed the election
itself as having made Stephenson a Senator. To reiterate Justice Keller's point, she
was only a Senator-elect until the Senate voted to seat her as a member. But, as
discussed below, that point does not end the necessary analysis .
-30-
having res iudicata effect . Indeed, this is the only justification they provide for their
remedy.
The problem with this approach, however, is that Section 38 of the Kentucky
Constitution again comes into play, not by stripping the courts of jurisdiction to
adjudicate the question of candidate qualifications, but by placing the ultimate authority
to determine that question in the hands of the relevant legislative body, with the courts
and other entities serving only in a complementary capacity. Though there is a dearth
of case law on this particular topic in Kentucky, the language in Section 38 of the
Kentucky Constitution is all but identical to that in Article I, section 5, of the United
States Constitution . And there is ample federal case law interpreting the effect of that
provision, all of which indicates that no entity can bind a house of the legislature in
judging the elections, returns, or qualifications of its members .
Foremost among these cases is Roudebush v. Hartke , 405 U .S. 15, 92 S.Ct.
804, 31 L.Ed.2d 1 (1972), which involved a challenge by R. Vance Hartke to a state-run
recount of the votes cast in his-race for United States Senate . Hartke claimed that the
explicit constitutional delegation to the Senate of the power to decide the elections and
returns of its members was absolute and that any state-level recount was thereby
barred as a usurpation of the Senate's power. The Supreme Court ultimately declined
to block the recount, but in doing so, it noted: "Once this case is resolved and the
Senate is assured that it has received the final Indiana tally, the Senate will be free to
make an unconditional and final ludgment under Art. I, § 5 ." Id . at 19, 82 S .Ct at 808
(emphasis added) . The Court allowed the recount to proceed because
a recount can be said to `usurp' the Senate's function only if
it frustrates the Senate's ability to make an independent final
judgment . A recount does not prevent the Senate from
-31-
independently evaluating the election any more than the
initial count does . The Senate is free to accept or reject the
apparent winner in either count, and, if it chooses, to conduct
its own recount .
Id . at 26, 92 S .Ct. at 811 (footnotes omitted, emphasis added).
Even the dissent in
Roudebush agreed on the fundamental point "that in the end the Senate will be the final
judge . . . ." Id . at 32, 92 S.Ct. at 814 (Douglas, J., dissenting); see also id . at 33, 92
S.Ct. at 815 (Douglas, J. dissenting) ("What the Senate should do in the merits is not a
justiciable controversy. The role
of the
courts is to protect the Senate's exclusive
jurisdiction over the subject matter . . . ."). In essence, the Court allowed the recount to
proceed while acknowledging that it was only complementary to the Senate's plenary
power to "[j]udge
of the
Elections, Returns and Qualifications of its own Members . . . ."
U .S . Const. art. I, § 5. At most, such a complementary process may "be characterized
as ministerial, or perhaps administrative . . . . .. Roudebush, 405 U .S. at 21, 92 S.Ct. at
809.
In an earlier case, Barry v. United States ex rel . Cunningham , 279 U .S. 597,
613, 49 S.Ct. 452, 455, 73 L.Ed. 867 (1929), the Court indicated that the Senate could
not even be bound by the findings of an internal committee that it had itself created to
aid in determining questions regarding the elections, returns, and qualifications of
members. The Court noted:
Exercise of the power [under Article I, section 5,] necessarily
involves the ascertainment of facts, the attendance of
witnesses, the examination of such witnesses, with the
power to compel them to answer pertinent questions, to
determine the facts and apply the appropriate rules of law,
and, finally, to render a judgment which is beyond the
authority of any other tribunal to review. In exercising this
power, the Senate may, of course, devolve upon a
committee of its members the authority to investigate and
report ; and this is the general, if not the uniform, practice .
-32-
When evidence is taken by a committee, the pertinency of
questions propounded must be determined by reference to
the scope of the authority vested in the committee by the
Senate. But undoubtedly the Senate, if it so determine, may
in whole or in part dispense with the services of a committee
and itself take testimony, and, after conferring authority upon
its committee, the Senate, for any reason satisfactory to it
and at any stage of the proceeding, may resume charge of
the inquiry and conduct it to a conclusion, or to such extent
as it may see fit. In that event, the limitations put upon the
committee obviously do not control the Senate; but that body
may deal with the matter, without regard to these limitations,
subject only to the restraints imposed by or found in the
implications of the Constitution .
Id. at 613-14, 49 S .Ct. at 455 (emphasis added) . These cases expose the fallacy of the
majority's contention that KRS 118.176 functions as an irrevocable delegation by the
General Assembly to the courts of the power to decide the qualifications of candidates
for either house . Even if the statute operates as a delegation of power, it is, at most, a
delegation of an administrative power to the courts to collect and evaluate evidence . As
such, the decision or judgment of any court sitting in this capacity can be revisited and
entirely supplanted by the relevant legislative body. Section 28 of our own constitution,
with its express prohibition on the "exercise [by one branch of government of] any power
properly belonging to either of the others," further supports this contention . The power
to determine the elections, returns, and qualifications of the members of a legislative
house is expressly placed in the house itself by Section 38. It is difficult to imagine a
clearer example of a textual commitment of a power to a specific branch of government .
As such, that power, properly belonging only to the legislative branch, cannot be
exercised by either of the other branches without breaching Section 28's guarantee of
separation of powers.
-3 3-
This bedrock principle has been followed consistently . As Judge Easterbrook
noted in a case involving a dispute over an Indiana race for United States
Representative that was ultimately decided by the slim margin of only four votes: "The
House is not only the `Judge' but also final arbiter. Its decisions about which ballots
count, and who won, are not reviewable in any court." McIntyre v. Fallahay, 766 F.2d
1078, 1081 (7th Cir. 1985). He then went even further, noting :
Nothing we say or do, nothing the state court says or does,
could affect the outcome of this election. Because the
dispute is not justiciable, it is inappropriate for a federal court
even to intimate how Congress ought to have decided . The
doctrine of justiciability is designed to prevent meddlesome
advisory opinions fully as much as it was designed to
prevent unwarranted interference with decisions properly
made elsewhere . When a court has no right to determine
the outcome of a dispute, it also has a duty not to discuss
the merits of that dispute.
Id . (footnote and citation omitted) . At least in the federal courts, it is an unquestioned
premise, bordering on legal fact, that "a . . . court may not award relief [in such a case],"
id ., which, in turn, means that such a case "no longer presents a `case or controversy'
. . . ."Id .
These issues were raised again in Morgan v. United States , 801 F.2d 455 (D.C .
Cir. 1986), another case involving the same United States House of Representatives
election that was disputed in McIntyre . The specific fight in Mor an concerned the
substance of the procedures used by the House in deciding the election . The lower
court "dismissed the suit with prejudice as the classic political question which is
inappropriate for judicial review ." Id . at 446 (internal quotation marks omitted) . The
court of appeals, in an opinion by then Circuit Judge Scalia, noted that "[s]ummary
affirmance is appropriate where the merits of an appeal `are so clear as to justify
-34-
expedited action ."' Id. (quoting Walker v. Washington , 627 F.2d 541, 545 (D.C .Cir.
1980)) . The court then granted a summary affirmance, noting that it did so "[b]ecause
the Constitution so unambiguously proscribes judicial review of the proceedings that led
to the seating of McCloskey," id., and that "further briefing and oral argument . . . would
be pointless." Id .
In reaching its decision, the court reviewed the history of the constitutional
provision . It noted:
The history of the Elections Clause is entirely
consistent with its plain exclusion of judicial jurisdiction . In
the formative years of the American republic, it was the
uniform practice of England and America for legislatures to
be the final judges of the elections and qualifications of their
members . There was no opposition to the elections Clause
in the Federal Constitutional Convention, and the minor
opposition in the ratification debates focused upon the
clause's removal of final authority not from the courts , but
from the state legislatures, where the Articles of
Confederation had vested an analogous power. It is
noteworthy that none of the responses to the opposition
mentions the safeguard of judicial review . Such a safeguard
was evidently unthinkable, since the determination of the
legislative House was itself deemed to be a judicial one . . . .
As far as we are aware, in none of the discussions of the
clause did there appear a trace of a suggestion that it
conferred was not exclusive and final. The fragments of
recorded discussion imply that many took for granted the
legislative right of judging of the returns of their members,
and viewed it as necessarily and naturally exclusive.
In almost two centuries of numerous election contests
resolved by the House and Senate, beginning in the very
first Congress, no court, as far as we are aware, has ever
undertaken to review the legislative judgment or (until the
present litigation) ever been asked to do so .
Id . at 447-48 (citations and internal quotation marks omitted) . Not only is the rule
fundamental, it has been the rule since even before the United States existed .
-3 5-
The Kentucky Senate, like its federal counterpart, "is a legislative body,
exercising in connection with the House only the power to make laws . But it has had
conferred upon it by the Constitution certain powers, which are not legislative, but
judicial, in character. Among these is the power to judge of the elections, returns, and
qualifications of its own members." Barry v. United States ex rel. Cunningham, 279
U.S. 597, 613, 49 S .Ct. 452, 455, 73 L.Ed . 867 (1929) . Section 38 of the Kentucky
Constitution, like its federal counterpart-Article I, section 5, of the United States
Constitution-places the sole power to make these quasi-judicial determinations with
the relevant house. No doubt, some will object that the federal cases cited herein dealt
primarily with the issue of who won the elections in question, and not whether the
winner possessed the requisite constitutional qualifications to hold office . But such an
objection has no merit . Just as a legislative body has the power to judge the elections
and returns of its members, so too does it have the power to judge the qualifications of
those members . Each of those questions, which appear in the same constitutional
provision, is on equal footing, and the analysis as to each is identical .
In passing on the question of Stephenson's qualifications by adopting the
minority report finding her qualified to serve, the Kentucky Senate exercised its
constitutionally granted "judicial" power and thus, like the House of Representatives in
Fallahay , "has made its `unconditional and final judgment ."' 766 F .2d at 1081 .
The rule as to the effect of the decisions of the Jefferson and Franklin Circuit
Courts, and the Board of Election's failure to count votes cast for Stephenson, then, is
clear: Any other proceeding entertaining questions as to qualifications of a Senator is, at
best, complementary to any parallel consideration of the same questions by the
-36-
constitutionally-mandated arbiter of those questions. 5 And any such complementary
proceeding, whether by an election board or a court, regardless of its outcome, simply
cannot bind the Senate when it chooses to engage in an independent determination of
these matters . The majority claims that its decision has no binding effect on the Senate
in that the injunctions work only to bind Stephenson and to prevent her from assuming
the seat . But this claim is illusory, since the injunctions have the practical effect of
limiting the Senate's choice as to how it may proceed or who it may choose, all despite
the fact that the Senate alone is constitutionally empowered to make that choice .
The objection will also be made that the federal cases involve after-the-fact
challenges, whereas the present case involves a pre-election challenge. But if the
power to judge the elections, returns, and qualifications are exclusive to the legislative
body-and, to be clear, the cases admit no exception-then it stands to reason that no
entity has the power to bind the legislative body before the fact . Otherwise, the power
granted by Section 38 is meaningless and the provision itself nothing but a dead letter .
Again, the necessary rule is clear: Just as a legislative body's decisions about its
5 Even the Franklin Circuit Court refused to find that the Jefferson Circuit Court's
order was binding as res judicata .
6 This also serves as an answer to Justice Cooper's claim in his separate
concurring opinion, where he argues that Woodward actually became a member of the
Senate when she took the oath of office as administered by Judge Ryan, thus meaning
that the Senate only "purported to refuse to seat her as a member of that body." Ante at
- (slip op . at 3) (emphasis added). If that is the case, the Senate has no opportunity to
exercise its power under Section 38, so long as a candidate rushes to the nearest judge
and swears the constitutional oath . Despite Justice Cooper's implication to the contrary,
Section 38 does not become inapplicable simply because a candidate "has been
properly certified as duly elected . . . . . . . has taken the oath of office, and . . .
possesses the constitutional qualifications for the office ." Ante at - (slip op. at 3-4) .
Furthermore, Justice Cooper's opinion as to the effect of the certification of Woodward
as "duly elected" is, like the majority opinion, premised on the mistaken assumption that
-3 7-
membership are not reviewable after the fact, so too they cannot be bound before the
fact . In short, the legislative body is free to reject any decision on the subject by
another body, including one made by a court.
The majority opinion attempts to evade this analysis by limiting the applicability of
Section 38 to disputes arising after a person becomes a member of the Senate (or,
when applicable, the House), as was the case in Raney v. Stovall, 361 S.W.2d 518 (Ky.
1962) . But such an assertion is against the great weight of authority and reason. The
Senate's power under Section 38 is not limited to the narrow circumstances that arose
in Ranev. The vast majority of the cases discussed above contemplate that the power
conferred by Section 38, and its federal analog, is plenary and comes into play
whenever a legislator elect presents himself or herself to a legislative body for
acceptance as a member. Applicability of the Section 38 power does not require that
the dispute revolve around someone who is already a member. Rather, it is, at its most
basic, the power to close the door and deny entry to a person claiming the right of
membership in the body .' How else could a legislative body judge the elections of its
members? As Justice Story famously observed, the primary function of such a power is
the official count by the Board of Elections or the certification of the winner by the
Secretary of State can bind the Senate if it reexamines the election returns.
In making this argument, the majority also attempts to discount any citation to
Raney and similar cases on the ground that their specific facts make them inapplicable .
Though Ranev addressed the applicability of Section 38 to the power of the legislature
to determine the qualifications of its sitting members, prior even to addressing that
question, it assumed that Section 38 granted that body the power to determine
elections, qualifications, and returns of incoming members. See Ranev , 361 S .W.2d at
523 ("If the power were limited to the qualifications specified in section 32 thereof, it
would be exhausted as soon as the membership of each house was accepted at the
beginning of each term.") . As such, Ranev provides further support for the contention
that Section 38 gives legislative houses the power to determine the elections, returns,
and qualifications of their incoming members.
-38-
to allow the legislative body to determine "who were the legitimately chosen members . .
. ." Joseph Story, Commentaries on the Constutiton § 416, at 295 (Carolina Academic
Press 1987) (1833) (reprint of abridgment by the author) (emphasis added) . That same
power also applies to the determination of the qualifications of incoming members, and
just as a legislative house has the power to determine that such an incoming member is
unqualified, so too it has the power to determine that such an incoming member is
qualified .
Given the clarity with which this concept has been expressed and the
consistency with which it has been applied in the federal opinions, I find it mindboggling, even outrageous, that the majority has deigned to decide these issues . $ The
fundamental premise underlying the federal decisions--that a house of the legislature is
empowered to determine independently the elections, returns, or qualifications of its
members--is the exact opposite of the majority's underlying assumption . Moreover, the
federal courts, in interpreting the federal analog of Section 38, have never even
considered it a reasonable possibility- that a house of the legislature can be bound in its
s In its conclusion, the majority opinion responds to this specific point by
emphasizing this Court's "duty to interpret the Constitution and declare the law." Ante at
- (slip op. at 21) . Quite simply, my dissent goes to the heart of deciding what the
Constitution means in this case . To claim that my interpretation of Section 38 betrays
the principles of judicial review as articulated in Marbury v. Madison, 5 U.S . (1 Cranch)
137 (1803), because I would decline to decide the merits of the underlying controversy,
is disingenuous . My conclusion that the Constitution requires the Court to stay its hand
does not mean that I have somehow shirked my constitutional duty . That the majority
implies this while expressly declining to decide the fundamental constitutional questions
raised and addressed herein belies this criticism.
It is particularly ironic that the majority has cited to Marbu in making this claim .
In that case, the Supreme Court, while staking out the contours of judicial review,
declined to intervene on behalf of Marbury and held that it lacked jurisdiction to issue
the writ that he had requested because the statute granting it jurisdiction to do so was in
conflict with Article III, section 2, of the United States Constitution .
-39-
decision by the prior determination of another entity . Section 38 of the Kentucky
Constitution admits no different interpretation . As such, I can only conclude that the
majority's solution is mistaken . The Senate's power to judge the elections, returns, and
qualifications of its members is plenary and without exception . As a result, the wisdom
of the Senate's finding that Stephenson was qualified and its resultant decision to seat
her as a Senator are beyond our power to review.
V. The Speech and Debate Clause
Finally, I note that the majority opinion affirms an injunction against a sitting
Senator. On January 7, 2005, the Senate found that Stephenson was qualified to
serve, and she was seated as a member of the Kentucky Senate. The only injunction in
effect at that time ordered the Jefferson Board of Elections not to count any votes for
Stephenson . That order was complied with, and, as a result, no votes were reported for
Stephenson, the Board of Elections' reports stating instead that votes for her were
"suppressed by Court Order." As discussed above, however, that report was not
binding on the Senate given its power under Section 38 to independently judge the
elections, returns, and qualifications of its members. Therefore, I can only conclude that
when the Senate seated Stephenson, she became a member of that body, with all the
rights and responsibilities, and privileges and duties incumbent in that office .
Of these privileges, one of the most fundamental is legislative immunity . Section
43 of the Kentucky Constitution provides that "for any speech or debate in either House
[the members of the General Assembly] shall not be questioned in any other place."
We have read this provision to provide "[a]bsolute immunity . . . to legislators in the
performance of their legislative functions . . . ." Yanero v. Davis, 65 S.W.3d 510,
518 (Ky. 2001) . Surely the act of continuing to hold a legislative seat is the
quintessence of legislative function . Yet, the Franklin Circuit Court's order, since it was
issued on January 14, 2005, after Stephenson was seated, had the effect of removing
her from her seat in the Senate. Even in Rose v. Council for Better Education. Inc . , 790
S .W.2d 186, 203-04, 215 (Ky. 1989), the Court declined to allow coercive, i .e.,
injunctive, relief against the General Assembly. These cases make it clear that the
Franklin Circuit Court had no power to prevent Stephenson from maintaining her seat as
a member of the Senate or, more generally, from participating in the legislative process
as a member of the Kentucky Senate .
Yet, the majority opinion has ratified the use of such coercive injunctive relief
against a sitting member of the General Assembly. And with this precedent in hand, no
obstacle now exists to prevent any judge in this state from enjoining a member of the
General Assembly from voting on a particular act. This may seem an unduly harsh
claim, but the simple fact of the matter is that the Jefferson Circuit Court's order had its
full effect, and Stephenson was subsequently seated as a member of the Senate . Only
after these events did the Franklin Circuit Court enter an injunction that could be
considered applicable to Stephenson, and the majority upholds that order. In doing so,
they allow an injunction to lie against someone who had already been seated as a
member of the Senate. The existence of such injunctive relief for even a single minute
is repugnant to the Constitution .
VI . Conclusion
The majority opinion blames only the Appellants for the fact that the 37th District
has gone unrepresented over the last year, claiming that they should have appealed the
-41-
order of the Jefferson Circuit Court. But given the nature of the governmental powers
involved, once the election began, or at the very least once the Senate acted to seat
Stephenson, the onus fell on the courts to decline to decide the questions presented .
Unfortunately, the courts have consistently refused to do so over the last year.
Moreover, the fact that it has taken over a year to resolve this case is itself ample proof
why the Kentucky courts should have declined to entertain any action once the election
began in November 2004 . At the very least, it shows that the courts should have
recognized their at most complementary role in this dispute and thus declined to grant
injunctive relief against the parties . As then Judge Scalia noted:
While it is not our role to examine the wisdom of a
disposition that appears so clearly in the text and history of
the Constitution, we may observe that it makes eminent
practical sense . The pressing legislative demands of
contemporary government have if anything increased the
need for quick, decisive resolution of election controversies .
Adding a layer of judicial review, which would undoubtedly
be resorted to on a regular basis, would frustrate this end.
What is involved, it should be borne in mind, is not judicial
resolution of a narrow issue of law, but review of an election
recount, with all the fact-finding that that entails. If it be said
that the relevant House is not the appropriate body to make
the determination because of the possibility of improper
political motivation, the response is that "[a]II power may be
abused if placed in unworthy hands. But it would be difficult
. . . to point out any other hands in which this power would
be more safe, and at the same time equally effectual ." Luther
v. Borden , 48 U .S. (7 How.) 1, 44,12 L.Ed . 581 (1849) . As
Justice Story observed :
If [the power to judge elections isl lodged in
any other than the legislative body itself, its
independence, its purity, and even its
existence and action may be destroyed or put
into imminent danger. No other body but itself
can have the same motives to preserve and
perpetuate these attributes; no other body can
be so perpetually watchful to guard its own
rights and privileges from infringement, to
-42-
purify and vindicate its own character, and to
preserve the rights and sustain the free choice
of its constituents .
at
votes in the
604-05 [(5th ed . 1905)] . While the party-line
present case (not at all unusual in such disputes) suggest
that Justice Story's description of the purifying character of
election judging by the legislature may have been
exaggerated, his basic point that institutional incentives
make it safer to lodge the function there than anywhere else
still stands . The major evil of interference by other branches
of government is entirely avoided, while a substantial degree
of responsibility is still provided by regular elections, the
interim demands of public opinion, and the desire of each
House to preserve its standing in relation to the other
institutions of government .
1 J . STORY [, COMMENTARIES ON THE CONSTITUTIONS] § 833,
Morgan v. United States , 801 F.2d 445, 450 (D .C . Cir. 1986) (emphasis added) . The
policy underlying Section 38 is, no doubt, the same. The very reason that Section 38
grants the legislature the exclusive power to judge the elections, returns, and
qualifications of its own members is to avoid a prolonged fight over an inherently
political question . Alas, this is exactly what has happened here.
For these reasons, I respectfully dissent.
Scott, J ., joins this dissenting opinion .
AS MODIFIED : JANUARY 19, 2005
RENDERED : DECEMBER 22, 2005
TO BE PUBLISHED
,*ixyrrxttr ~vurf of ~rnfurhV
2005-SC-0603-TG
DANA SEUM STEPHENSON
V
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1601-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
VIRGINIA L. WOODWARD AND DAVID L.
WILLIAMS, IN HIS CAPACITIES AS PRESIDENT
OF THE KENTUCKY STATE SENATE AND
OFFICIAL REPRESENTATIVE OF ALL
MEMBERS OF THE KENTUCKY STATE
SENATE
APPELLEES
AND
2005-SC-0604-TG
DAVID L . WILLIAMS, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
SENATE OF THE COMMONWEALTH OF
KENTUCKY
V
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1602-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
VIRGINIA L . WOODWARD AND DANA
SEUM STEPHENSON
AND
2005-SC-0645-TG
APPELLEES
VIRGINIA L. WOODWARD
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1643-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
V.
DANA SEUM STEPHENSON AND DAVID L.
WILLIAMS, IN HIS CAPACITIES AS PRESIDENT
OF THE KENTUCKY STATE SENATE AND
OFFICIAL REPRESENTATIVE OF ALL
MEMBERS OF THE KENTUCKY STATE
SENATE
APPELLEES
DISSENTING OPINION BY JUSTICE SCOTT
Respectfully, I must di ssent. I still firmly believe that Justice Keller was
right in his March dissent, when he noted, "because the Kentucky Constitution
contains an express separation of powers among the three branches and
provides that the Senate itself shall be the sole judge of the qualifications and
elections of its members, the Court of Justice, as a whole, lacks jurisdiction in
this case ." I joined Justice Keller then and after all the ensuing briefs,
discussions and arguments, I remain firmly convinced of the correctness of his
position .
The campaign for the 37 th Senatorial District seat in Jefferson County
began with the filing deadline in January, 2004 and ran through the. general
election on November 2, 2004. The Appellee, Ms . Virginia L. Woodward, (who
admitted in the Jefferson Circuit Court hearing that she had been gathering
materials on the Appellant, Ms. Dana Seum Stephenson, for months), chose,
however, to wait until the last . minute of the last day to file a challenge to Ms .
Stephenson's qualifications in the Jefferson Circuit Court. With this calculated
delay, it was assured there would be no possibility for the action to be resolved
prior to the election the next morning.
In fact, the polls had closed, with Ms. Stephenson garnering 22, 772 votes
to Ms . Woodward's 21, 750 votes, when Ms. Stephenson was served with notice
of the action at 9:30 p.m ., on election night, while attending her victory
celebration . Consequently, the hearing could not be held until the day after the
election, November 3, 2004 at 3:30 p.m .
At the hearing, the court rejected Ms. Stephenson's motion to postpone
the hearing for just a short time, so she might prepare with counsel . Then, after
a hearing lasting less than one hour, the Jefferson Circuit Court enjoined the
Jefferson County Board of Elections "from certifying the results of the election . . .
." In a final decision on November 22, 2004, the court held Ms. Stephenson did
not meet the "residency" requirements set out in Ky. Const. Sec. 32 and
permanently enjoined the Jefferson County Board of Elections from counting any
votes cast for Ms. Stephenson - even though the tally had already been made.
Then, on December 7, 2004, Ms . Stephenson filed an "Election Contest"
with the Kentucky State Senate pursuant to the procedures set forth in KRS
120.195 and 120.215 . Ms . Woodward countered with this action in the Franklin
Circuit Court on December 15, 2004. Then, on January 7, 2005, after three days
of hearings by its Election Contest Committee, the Kentucky Senate received
and considered the Contest Committee's reports and recommendations and by a
majority vote of the full Senate, rejected the report that recommended seating
Ms. Woodward and adopted the report finding Ms . Stephenson did meet the
"residency" qualifications of the office and should be seated . Ms. Stephenson
was then sworn in and seated as a member of the Kentucky State Senate,
representing the 37th Senatorial District in Jefferson County. Thereafter, on
January 14, 2005, the Franklin Circuit Court, in this action, granted Ms.
Woodward's motion for a temporary injunction against Ms. Stephenson,
prohibiting her from exercising any of her duties as Senator from the 37th District.
Because this Court's majority opinion has the effect of extending KRS
118.176 "pre-election" proceedings, not only into areas protected by Section 38
of the Kentucky Constitution, but even past the general election deadline, it may
be expected that the "calculated late filing" as occurred here, will be replicated
many times over in the years to come, at a cost of increased rancor between the
political parties, and hundreds of thousands of dollars of additional expenditures
for new elections by the various candidates and taxpayers of this state. More
importantly, during these "now extended contests," their constituencies will be
without representation in the important functions of government, due to the
delays naturally inherent in litigation .
As I write today, we are in late December and during all of this time,
Jefferson County has been without the aid of one of its Senators through the
making of the budget in 2005 and will, more likely than not, be without one of its
Senators during the session in 2006. Thus, only the most partisan constituents
of the electorate could have enjoyed this battle .
Section 27 of the Kentucky Constitution provides that, "[t]he 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 . . . : Those which
are legislative, to one; those which are executive, to another; and those which
are judicial, to another."
Section 28 of the Kentucky Constitution provides, "no
person or collection of persons, being one of those departments, shall exercise
any power properly belonging to either of the others, except in the instances
hereinafter expressly directed or permitted ." (Emphasis added). Section 38 of
the Kentucky Constitution then provides, "each house of the General
Assembly shall judge of the qualifications, elections and returns of its
members, but a contested election shall be determined in such manner as
shall be directed by law."' (Emphasis added) . Thus, when dealing with the
qualifications, elections and returns of members of the General Assembly,
Section 38 authorizes only "contested elections" to be determined according to
law - it grants no ground for interference by "pre-election proceedings."
"Properly speaking, an election cannot be `contested' before it is held and
thus 'an election contest is a post-election proceeding ."' Thomas v. Lyons, 586
S .W.2d 711, 715 (Ky. 1979). Election contests are regulated by KRS Chapter
120. And as to the Governor, the Lieutenant Governor and members of the
General Assembly, such contests are specifically authorized by Ky. Const. Sec.
38 and 90. "Pre-election proceedings" are regulated by KRS Chapter 118 and
are not an approved means of determining the "qualifications, elections, and
returns" of the members of the General Assembly under Ky. Const. Sec. 38.
KRS 118.176 falls within Chapter 118, titled "Conduct of Elections,"
whereas, KRS 120 .215 falls within the Chapter appropriately titled "Election
Contests." "What we have in this case is not an election contest, but a pre
election proceeding . . . ." Thomas at 715 . Moreover, we recognized in
' There are no other relevant constitutional sections, other than Section 90,
which I will address momentarily .
Thomas, that when KRS 118 .176 "runs athwart" of constitutional sections,
KRS 118.176 must give way. Thomas at 716.
KRS 118.176, dealing with "pre-election" procedures, provides, in relevant
part:
(1) A "bona fide" candidate means one who is seeking
nomination in a primary or election in a general election
(2) The bona fides of any candidate seeking nomination
or election in a primary or general election may be
questioned by any . . . voter entitled to vote for such
candidate or by an opposing candidate by summary
proceedings consisting of a motion before the Circuit
Court . . . . An action regarding the bona fides of any
candidate seeking nomination or election . . . may be
commenced at any time prior to the general election .
The motion shall be tried summarily and without delay. .
. . (Emphasis added) .
(4) . . . The order of the Circuit Court shall be . . . subject
to a motion to set aside in the Court of Appeals. The
motion shall be heard by the Court of Appeals or a judge
thereof . . . , except that the motion must be made . . .
within five (5) days . . . , and the order of the Court of
Appeals or judge thereof shall be final. . . .
KRS Chapter 120, however, sets out the rules for "Election Contests ."
KRS 120 .155 sets the stage and provides, in relevant part:
Any candidate for election to any state, county, district or
city office (except the office of Governor, Lieutenant
Governor, member of the General Assembly, . . . ), . .
. may contest the election of the successful candidate,
by filing a petition in the Circuit Court . . . . (Emphasis
added).
KRS 120.205 points out, in relevant part:
When the election of a Governor or Lieutenant Governor
is contested, a board for determining the contest shall be
formed [from the General Assembly] . . . .
(5) . . . The decision of the board shall not be final nor
conclusive, but shall be reported to the two (2) houses of
the General Assembly, in joint session, for the further
action of the General Assembly . . . . .
KRS 120.215 then, for members of the General Assembly, provides :
When the election of a member of the General Assembly
is contested, the branch to which he belongs shall, within
three (3) days after its organization, and in the manner
provided in KRS 120.205 , select a board of not more
than nine (9) nor less than five (5) of its members to
determine the contest. Such board shall be governed by
the same rules, have the same power, and be subject to
the same penalties as a board to determine the
contested election of Governor . It shall report its decision
to the branch of the General Assembly by which it was
appointed, for its further action .
As indicated, the Kentucky Senate met on January 7, 2005 and by a
majority vote rejected the Contest Committee's majority report, which found Ms.
Stephenson had not met residency requirements, but then accepted the
Committee's minority report, which concluded Ms. Stephenson had met the
residency requirements . It is the disagreement over the constitutional meaning
of "residence" under Section 32 of the Kentucky Constitution which has fueled
this Court's invasion of the powers granted the General Assembly under Section
38. But the central point, which is more eloquently addressed in Justice Keller's
March dissent and in Justice Roach's dissenting opinion, is the fact that the
founders of our Constitution did not give us (only one of the three branches of the
government) the power to interfere with "the qualifications, elections and returns"
of our sister branch, the General Assembly.
"Although current policy may differ from that of another time, the intent of
the framers of the Constitution and of the people adopting it must be given
effect." City of Ashland v. Calvary Episcopalian Church of Ashland, 278 S.W.2d
708, 710 (Ky. 1955). Thus, the Constitution continues to mean what it meant
when it was adopted. Runyon v. Smith, 212 S.W.2d 521, 524 (Ky. 1948).
"Courts in construing constitutional provisions will look to the history of the times
and the state of existing things to ascertain the intention of the framers of the
Constitution and the people adopting it . . . ." Shamburger v. Duncan, 253 S.W .2d
388, 390, 391 (Ky. 1952) ; see also Keck v . Manning, 231 S.W.2d 604, 607 (Ky.
1950) .
A perusal of the official report of the proceedings and debates in the
Constitutional Convention, held in Frankfort in September of 1890, offers some
insight. Therein, the honorable delegate from Pendleton county, Mr. Leslie T.
Applegate, pointed out to those assembled :
Because the experience of time has shown that along in
1849 or in 1850, or even going back to 1792, [the words]
didn't mean what the men who used them thought they
meant; and while I have the profoundest respect for our
courts, yet they have turned their forces upon it, and
they have turned the light of reason upon it, and we have
found that these expressions are deficient to protect men
and their private rights, and for that reason we have
enlarged upon the expressions here . . . . If you can ever
use language so plain and specific that the courts will
not sometime or another make a change in it, then I
would like you to employ it, because this morning I sat
down in the library and took down Barbour's Digest and
found that the court has overruled itself more than a
hundred times in its history; then if they themselves
cannot say what they mean and stick to it, how in the
name of heaven can we use any language that will
always be construed as we wish it and which they will
stick to . Debates. Constitutional Convention 1890 Ky.
Vol . I, P . 590, 591 .
The honorable Delegate from Todd County, Mr. H.G . Petrie, pointed out:
[I]n thinking about it, it occurred to me that these judges
who are giving this satisfactory interpretation of that
clause of the Constitution will in a few years pass away
from the honored seats they now occupy, and those
seats will be filled by other judges . It will be, as it was
said by the Delegate from Pendleton, the same court but
different judges . Who knows how they may view that
section? They may conclude that the interpretation of the
present judges is wrong . They may be unable to concur.
They may say that the construction given that clause by
some of the other judges way back yonder was the
correct one; and then we would have the trouble again ;
so it seems to me if human language can be so
arraigned as to express really the thought intended
to be conveyed . . . , then it ought to be done. _Id . at
625. (Emphasis added) .
Looking further at the disagreement we have, within its historical context,
the seminal case, Taylor v. Beckham , 108 Ky. 278, 56 S.W. 177 (1900), decided
only nine years after the adoption of our current Constitution . Interestingly
enough, Sen . William Goebel, a sad focus of the case, was an outspoken
convention member in the 1890 convention . In fact, the episode which furnished
the basis for Taylor is often referred to as the "Goebel affair."
The `Goebel affair' was the most disturbing episode in
Kentucky's political history. It left the state's electorate
in a highly embittered frame of mind . The Republicans
said, `they stole the election,' and the Democrats
answered, `they shot our Governor [Goebel].' It matters
little to posterity who fired the shot that killed Senator
Goebel ; the important fact is that it forced Kentucky into
a long period of partisan and factional war which
prevented passage of much needed progressive
legislation. Thomas D . Clark, A History of Kentucky , p.
442 . 2
2 Caleb Powers, the then Republican Secretary of State was tried four times for
his part in Goebel's murder, along with Henry Youtesy, a clerk in his office .
Three times Powers was sentenced to life in prison, once to be hanged. Each
time his conviction was reversed by our predecessor, the old Court of Appeals .
-9-
In Taylor , the Republican gubernatorial nominee, W.S . Taylor, received a
majority of 2,383 votes over the Democrat nominee, William Goebel. The
Republican Lieutenant Governor nominee, John Marshall, had a somewhat
larger majority over the Democrat nominee, J.C. Beckham.
The final official count gave Taylor a majority, and this
was the signal for Democrats to start challenging votes .
It was claimed [Republican] Governor Bradley's troops
had prevented an honest election in Louisville . Most
outrageous of all, however, was the fact that by political
chicanery or `oversight,' votes of many eastern Kentucky
Republican counties were registered upon `tissue paper'
ballots, which, it was claimed, were not printed on legal
weight paper. This charge, a fine piece of Kentucky
political chicanery, was trumped up to throw out the
election . Thomas D. Clark, A History of Kentucky , p.
439.
Notwithstanding the political wrangling, on December 12, 1899, Taylor
was sworn in as Governor . An Election Contest was then filed by Goebel and
Marshall, placing the "election contest" in the Democrat dominated General
Assembly, pursuant to Section 90 of the Kentucky Constitution .
Section 90, similar to Section 38, provides, "contested elections for
Governor and Lieutenant Governor shall be determined by both houses of the
General Assembly, according to such regulations as may be established by law."
The law pursuant to this Section at the time was Ky. St ., Sec. 1596(a)(8), which
is a predecessor of today's KRS 120 .205 . The General Assembly then
determined that William Goebel was the winner over Taylor for Governor and that
Finally, he was pardoned by Governor Augustus E. WiIlson. Youtesy, was
pardoned by Governor A.O. Stanley. The Powers reversals make interesting
reading and may be found in Powers v. Commonwealth , 110 Ky. 386, 61 S .W.
735 (Ky. 1901) ; Powers v. Commonwealth , 114 Ky. 237, 70 S.W. 1050 (Ky.
1902) ; Powers v. Commonwealth, 114 Ky. 237, 71 S .W. 494 (Ky. 1903) and
Powers v. Commonwealth , 139 Ky . 815, 83 S .W. 146 (Ky . 1904) .
-10-
J .C . Beckham was the winner for Lieutenant Governor over Marshall. Taylor then
filed suit to set aside the actions of the General Assembly . By that time however,
Senator Goebel had been shot as he tried to enter the Capitol building . He died
from the wound on February 3, 1900 .
In Taylor , Justice Burnam set out the circumstances of the case our
predecessor, then the Kentucky Court of Appeals, was faced with :
The general demurrer . . . , admits that . . . Williams S.
Taylor and John Marshall had received the highest
number of votes given for the offices of governor and
lieutenant governor . . . ; that at the election . . . . the
entire election machinery of the state was in the hands
of the friends and partisans of contestants [Goebel and
Beckham] . . . ; that the members of the state board of
election[s] . . . were themselves fellow partisans of
contestants; that by the action of the election officers on
the day of the election contestees [Taylor and Marshall]
were illegally, . . . deprived of a large number of votes in
the various voting precincts of the state; that,
subsequent to the election, contestants had entered into
a conspiracy with diverse members of the legislature to
nullify this election of the people by the institution of a
fraudulent contest before them ; that, pursuant to this
conspiracy so entered into, the contest boards were
selected by a fraudulent device . . . that as a result of
this trick 10 out of the11 members selected for the trial of
the governor's contest were partisans of the contestant, .
. . that at least one member of the board selected to try
the contest for the office of Governor had wagered
money on the result of the election ; that the contest
boards, in the trial of the contests had acted throughout
in an illegal, tyrannical, and arbitrary manner in the
admission and rejection of testimony, and in the whole
conduct of the trial; that they did not report to the general
assembly any of the testimony which had been taken
upon the trial ; and that the general assembly, at the time
they approved the decisions of the contest boards, did
not have a particle of testimony before them, were not
familiar with the facts, refused to hear argument, held
their alleged meeting at which the contests were
determined at a secret place without the knowledge of
either contestees, or more than one-third of the entire
membership of the general assembly, who were thereby
excluded from any participation in the action . . . . Taylor
at 184, 185 (concurring opinion by Justice Burnam) .
In fact, Justice Burnam was so thoroughly disgusted with the events, that
he went on to state :
It is hard to imagine a more flagrant and partisan
disregard of the modes of procedure which should
govern a judicial tribunal in the determination of a great
and important issue than is made manifest by the facts
alleged and relied on by contestees, and admitted by
the demurrer filed in this action to be true; and I am
firmly convinced, both from these admitted facts and
from knowledge of the current history of these
transactions, that the general assembly, in the heat of
anger, engendered by the intense partisan excitement,
which was at that time prevailing, have done two faithful,
conscientious, able public servants an irreparable injury
in depriving them of the offices to which they were
elected by the people of this commonwealth ; and a still
greater wrong has been done a large majority of the
electors of this commonwealth who voted under difficult
circumstances to elect these gentlemen to act as their
servants in the discharge of the duties of these great
offices . Taylor at 185. (Concurring opinion by Burnam,
J .) . (Emphasis added) .
. Yet, the court in Taylor , just nine years after the adoption of our current
Constitution, with Justice Burnam concurring, recognized the necessary
limitations which had been placed on us by the Kentucky Constitution, to-wit :
although it sometimes has been urged at the bar that
the court ought to inquire into the motives of the
legislature where fraud and corruption were alleged, and
annul their action if the allegations were established, the
argument has in no case been acceded to by the
judiciary, and they have never allowed the inquiry to be
entered upon. The reasons are the same here as those
which preclude an inquiry into the motives of the
governor in the exercise of a discretion vested in him
exclusively. He is responsible for his acts in such a
case, not to the court, but to the people . Taylor at 180.
The powers of the three departments are not merely
equal . They are exclusive in respect to the duties
- 1 2-
assigned to each . They are absolutely independent of
each other. It is now proposed that one of the three
powers shall institute an inquiry into the conduct of
another department and form an issue to try by what
motives the legislators were governed in the enactment
of a law. If this may be done, we may also inquire by
what motives the executive is induced to approve a bill
or withhold his approval, and, in case of withholding it
corruptly, by our mandate compel its approval . To
institute the proposed inquiry would be a direct attack
upon the independence of the legislature, and a
usurpation of power subversive of the constitution . Id .
We cannot hesitate a moment on this question . We
have no such authority, and ought not to have . However
far the legislature may depart from the right line of
constitutional morality, we have no authority to supervise
and correct their act on the mere ground of fraudulent or
dishonest motives. We know of no such check upon
legislation, and would not desire to see such a one
instituted. The remedy for such an evil is in the
hands of the people alone, to be worked out by an
increased care to elect representatives that are
honest and capable. If the judiciary have such
authority, then every justice . . . is competent to sit in
judgment upon every act of legislation which disorderly
moralists or knavish or ignorant anarchists may choose
to charge as fraudulent . Nay, more, if the question may
be raised in a judicial proceeding, the judges and .
justices . . . will be bound to investigate and decide it,
and the principal judicial business then might become
that of testing, not cases by the standard of the law, but
the standard itself by the infinitely various and uncertain
judicial notions of morality . Taylor at 181 . (Emphasis
added).
Public authority and political power must, of necessity,
be confided to officers, who, being human, may violate
the trust reposed in them . This perhaps cannot be
avoided absolutely, but it applies also to all human
agencies. It is not fit that the judiciary should claim for
itself a purity beyond others ; nor has it been able at all
times with truth to say that its high places have not been
disgraced. The framers of our government have not
constituted it with faculties to supervise co-ordinate
departments, and correct or prevent abuses of their
authority. . . . That power does not belong to it. Nor can
it keep the legislative journal . . . . It is neither modest
- 1 3-
nor just for judges thus to impeach the integrity of
another department of government, and to claim the
judiciary only will be faithful to its obligation . Taylor at
182-183, citing Evans v. Browne , 30 Ind. 514, 1869 WL
3177 (Ind .), 95 Am. Dec. 710 (Ind . 1869).
The determination of .the result of an election is purely a
political question, and, if such suits as this may be
maintained, the greatest disorder will result in the public
business. It has always been the policy of our law to
provide a summary process for the settlement of such
contests, to the end that public business shall not be
interrupted; but, if such a suit as this may be maintained,
were will such a contest end? To illustrate, section 38
of the state constitution provides : `Each house of
the general assembly shall judge of the
qualifications, elections and returns of its members,
but a contested election shall be determined in such
manner as shall be directed by law.' Whatever inherit
power either house might have had to determine the
election of its members if the constitution had been
silent, its power under this section is limited to the
grant. It will be observed that the phraseology is
substantially the same as section 90, relating to
contested elections of governor and lieutenant
governor. Suppose these suits had been brought by
two members of the general assembly, alleging, in
effect, the same facts that are alleged in this case, would
anybody suppose the judiciary of the state would have
the power to go behind the legislative journals, or to
supervise the propriety of the legislative action, in
determining the election of its members? Taylor at 183184. (Emphasis added).
It is earnestly argued that the general assembly was
wrong in its decision of this case, and that it is a very
serious matter thus to overthrow the will of the people.
Whether the Assembly was right or not in its decision, it
is not our province to determine . But a much more
important question is involved in the case, which is the
integrity of our form of government as founded by our
forefathers . If the action of the legislature may be
disregarded by the courts, then it is no longer an equal
and independent branch of the government within its
constitutional jurisdiction, but the courts become the final
depository of the supreme power of the sate . Judicial
tyranny is no less tyranny because couched in the forms
of law. There was a great wisdom in dividing the powers
- 1 4-
of a republic between three equal and independent sets
of officers. One operates as a check upon the other,
and no greater blow to the perpetuity of our institutions
could be given than to destroy this check. Taylor at 184.
The strictures set out in Taylor are not archaic or ancient ; they are as valid
today as they were nine years after our Constitution was adopted . "As observed
by the legislature, state courts have consistently concluded that a constitutional
provision providing that the legislature `shall judge' the qualification, returns and
elections of its own members insulates a legislator's qualification to hold office
from judicial review. In other words, a legislative body's decision to admit or
expel a member is almost un-reviewable in the courts ." Heller v. The Legislature
of the State of Nevada , 120 Nev. 456, 93 P.3d 746, 753 (2004) .
Those of us dissenting are not alone in this view . See Foster v. Harden ,
536 So.2d 905, 906 (Miss. 1988) (refusing to consider an election contest which
questioned whether a state senator satisfied a residency requirement, because :
"Section 38 of the [Mississippil Constitution provides in unambiguous language
that each house of the legislature `shall judge of the qualifications, return and
election of its own members .' The almost universal constitutional doctrine in the
United States and the several states which have constitutions containing this or
similar provisions is that: Each legislative body is the sole judge of the elections,
returns, and qualifications of its own members, and its action in admitting or
expelling a member is not reviewable in the courts ."); State ex rel. Turner v.
Scott, 269 N .W.2d 828 (Iowa 1978) (characterizing as a non-justifiable
controversy a quo warranto action to remove a Senator who allegedly failed to
satisfy the states inhabitancy requirement); Buskey v. Amos , 294 Ala. 1, 310
So.2d 468 (1975) (holding that appellate court lost jurisdiction to consider
candidate's residency when the candidate was sworn in to the Alabama Senate) ;
- 1 5-
State v. Banks, 454 S.W.2d 498, 500-01 (Mo. 1970) (declining to consider a quo
warranto action to oust a state legislator, stating that no authority existed to
contradict the principle that a legislatures power to judge its members
qualification is exclusive); Raney v. Stovall ; 361 S .W.2d 518 (Ky. 1962) (refusing
to question the Kentucky Senate's approval of a deputy sheriff also serving as a
Senator) ; State v. Wheatley , 197 Ark. 997, 125 S .W.2d 101 (1939) (refusing to
consider whether the state legislator was disqualified from service based on his
conviction for an infamous crime) ; Lessard v. Snell , 155 Ore. 293, 63 P .2d 893
(1937) (declining to question the qualifications of a state senator who had been
commissioned as a Notary Public and employed as a County Attorney, the court
held : "we apprehend there is no case in the books - certainly none cited - where
any court has ever ousted a member of a legislature or directed such a coordinate branch of government to accept any person as one of its members.");
State v . Cuffs , 53 Mont. 300 163 P. 470 (1917) (declining to consider quo
warranto challenge to legislators right to sit in the Montana House of
Representatives) .
Even Judge Graham of the Franklin Circuit Court, whose decision this
Court is upholding (albeit for different reasons), conceded that this is an accurate
representation of the law in this regard, "we agree with Stephenson and Williams
that Section 38 does not strictly limit the rights of the Senate to pass upon the
qualifications of its members. Although Woodward vehemently disagrees with
this proposition Kentucky case law has consistently ruled to that effect."
Woodward v. Stephenson, et al . , No. 04-CI-1676, slip op . at 11 (Franklin Cir . Ct.
June 1, 2005) (order granting permanent injunction).
- 1 6-
It is obvious, that a power must be lodged somewhere to
judge of the election, returns, and qualifications of the
members . . . . The only possible question on such a
subject is, as to the body, in which such a power shall be
lodged . If lodged in any other, than the legislative body
itself, its independence, its purity . . . may be destroyed .
. . . No other body, but itself, could have the same
motives to preserve and perpetuate these attributes ; no
other body can be so perpetually watchful to guard it
own rights and privileges from infringement, to purify and
vindicate its own character, and to preserve the rights,
and sustain the free choice of it own constituents .
Accordingly, the power has always been lodged in the
legislative body by the uniform practice of England and
America . Scheibel v. Pavlak , 282 N .W.2d 843, 847 (Min.
1979) (quoting Story, Commentaries on the Constitution
§ 416 (Abr . Ed . 1833), cited in Legislation, The
Legislators Power to Judge the Qualifications of Its
Members, Vand . L. Rev. 1410, 1412 (1966)).
Although the majority can cite many cases where elected officials have
been denied office after having won the majority of the votes in an election, they
cannot cite one case where the courts have ruled against the "qualifications,
elections, and returns" of a member of a General Assembly, whose qualifications,
election and returns have been accepted by a body of the Assembly, from any
jurisdiction that has constitutional provisions comparable to Sections 27, 28 and
38 of the Kentucky Constitution .
What the majority has done, however, is to construct artful logic from
which they now announce that the General Assembly, by its 2001 Amendment to
KRS 118.176, intended to, and did authorize, the courts to intervene in
decisions dealing with the "qualifications, elections, and returns" of members of
the General Assembly . They do this under the guise of a perceived legislative
over-reaction to the August 16, 2000 Court of Appeals decision in Legate v.
Stone .
Legate was the successful candidate for the Democratic nomination for
city councilman in Madisonville, Kentucky . The problem was - he was a
registered Republican. After the primary election, Rudy Stone, the
unsuccessful candidate, filed a challenge to Legate's qualifications on this basis .
The Circuit Court then granted relief and declared the primary nomination vacant.
In reversing the trial court, and allowing Legate, the Republican, to run as the
Democrat nominee, the Court of Appeals relied on our long-standing rule in
Noble v. Meag,her, 686 S .W.2d 458 (Ky. 1985) (involving the qualifications of
judges), where we noted, in reference to KRS 118.176, "it is our further
holding that challenges to the qualifications of candidates to appear on the
ballot must be made before the primary election." (Emphasis added). Thus,
the General Assembly in 2001, amended KRS 118 .176 by adding the additional
language that "an action regarding the "bona fides" of -any candidate seeking
nomination or election in a primary or general election may be commenced at
any time prior to the general election ."
From a legislative amendment crafted to avoid the strictures of Legate
(concerning only a city councilman), the majority of this Court, now concludes,
from this history, we believe that it is unquestionable that
the General Assembly amended KRS 118.176 in 2001 to
effectuate a singular goal: to allow challenges to a
candidate's qualifications after the primary election and
at any time prior to the general election. Finding no
ambiguity in the plain language of the statute, it is our
holding that KRS 118 .176 permits a Circuit Court to
As noted in the majority opinion, this case was unreported, but may be
referenced by its case number 2000-CA-01724-1 .
- 1 83
consider and adjudicate [after election] challenges to a
candidate's bona fides that are commenced prior to the
general election . There are no limitations placed on the
movant [Ms. Woodward] as to how far in advance of the
election the action may be commenced, nor are there
limitations placed on the Circuit Court concerning time
limitations for adjudication . Here, Woodward
commenced her action prior to the general election .
That she filed the Motion to Disqualify Stephenson hours
before the polls opened is of absolutely no
consequence; her action was commenced prior to the
election and satisfies the simple requirement of the
statue .
[Slip Opinion, p. 15].
This logic ignores the fact that in Legate , the challenge was filed after the
primary, but in plenty of time to complete the "summary proceeding and appeals"
referenced in KRS 118 .176, prior to the general election . In fact, the Court of
Appeals opinion in Legate was entered on August 16, 2000 and we denied
discretionary review on August 24, 2000. Thus, all the General Assembly
intended to do with this amendment was to allow its filing after the primary and
that's the extent of their meaning by "may be commenced at any time prior to the
General Election ." In no sense, should we have ever presumed from this
change that the General Assembly meant to let us interfere in their political
realm, a realm which has not been violated since 1792 - the date of our first
Constitution .
The majority arrives at this logic, notwithstanding the comments of the
Representatives concerning this amendment during the session of the House
Committee on Elections, Constitutional Amendments and Intergovernmental
Affairs, which, in explaining the amendment, acknowledged that, after an
- 1 9-
election, candidates "are no longer candidates" and therefore cannot be the
subject of
KRS 118.176 actions .
There is no question but that the majority of this Court, by virtue of their
construction of the intention of the legislature in regards to the 2001 amendment,
can constitutionally consider and hold that the time within which "pre-election"
litigation may endure has been extended in cases such as Legate (a city
commissioner) and Meagher (a judge) by the 2001 amendment. As long as they
recognize that last minute filings on the last day, with all the consequent
disruptions and later expenses (from overturned elections), will be the rule of the
future . I could concur in a decision of such tenor. But I cannot concur with a
decision that extends KRS 118 .176 into constitutionally impermissible areas,
such as Ky. Const. Sec. 38.
Never before has this Court hesitated in finding the application of KRS
118.176 to be unconstitutional when it invades constitutionally protected areas.
"To the extent that KRS 118.176(4) provides that the action of the Court of
Appeals shall be final [, it] runs athwart Const. Sec. 110(2)(b), which
authorizes the Supreme Court to exercise appellate jurisdiction as provided
by its rules." Thomas V. Lyons, 586 S.W.2d 711, 716 (Ky. 1979). (Emphasis
added). Remember, KRS 118.176(4) expressly limits appeals from the Circuit
Court to the Court of Appeals and states their orders shall be final. In Thomas ,
we held that was unconstitutional as intruding into our constitutional powers.
Thus, this Court should respect its own precedents and protect the powers of our
sister branches of government when their constitutional powers are invaded by
- 20-
KRS 118.176, as we do our own. This is a responsibility we have neglected in
this case .
In summary, I acknowledge the validity of the majority's ruling extending
the litigation time pursuant to KRS 118.176 for all contestants, other than the
Governor, the Lieutenant Governor, and the members of the General
Assembly, who have constitutional protections, which 118 .176 cannot
penetrate . But I do not recognize that we can invade a sister branch of
government's constitutional power under any guise. Therefore, I believe the
acts of the majority of this Court, in this decision, are unconstitutional, as outside
the powers granted us . Cf. Taylor. And in doing so, they are as wrong as was
the Senate.
But I must go further. The lengthy existence of this Nation and of all its
states is great evidence that our forefathers, who constructed our constitutions,
knew how to build a great government, a structure you might say, which would
withstand the winds and storms of history. The one secret they knew, and weoverlook today, is that they built this government, or structure, on a solid
foundation - the people. They recognized the people and relied upon them, to
be the fourth player in government, to be more effective, for their own interests,
more diligent and timely, than government itself. For these reasons, each of our
three branches of government were intentionally hampered in some areas, so
that they would all remain equal; so no one branch, could ever become greater
than the others, could ever garner enough power, to overcome the greatest part
of government - the people . This government, or structure, they built, consists of
264 parts, or sections (the Constitution), and when you change one of these
- 21 -
sections, you change the whole structure. Maybe just a little today, but that
change will grow in time and then someday, you will find, to your dismay, that the
whole structure has changed .
And let's step back and compare the resolution of this issue, the way the
founders of our Constitution intended it to be resolved, with the way the court
system has resolved it to date . Had this Court followed its own precedent in
Taylor , the 37th Senatorial District of Jefferson County would have had a Senator
to participate in the budget and other decisions of 2005. It would have a Senator
to participate in the budget and legislative decisions to be made in 2006 . And in
a normal year, that great fourth part of government - the base of government the people - would have expressed their political voice and vote in November,
punishing the party they found at fault and rendering any further discussion of the
matter unnecessary.
Yet, in our actions to date, we have upheld two Circuit Court opinions
which admit they cannot grant Ms . Woodward's request to be seated as the
Senator for the 37th Judicial district; cannot grant her request to face the
President of the Senate, David Williams, or the Senate, to seat Ms. Woodward ;
and cannot make the Senate call for a special election to fill the seat . If one does
not recognize that this means we were not meant to have this power, then I can
not point it out any better .
All the Circuit Court order does, is declare Ms. Stephenson to be
unqualified and enjoin her from "sitting as the State Senator, from performing any
official duties of the office of State Senators; from receiving or accepting any pay
for the office of State Senator, and from participating in the affairs of the General
- 22-
Assembly, including, but not limited to, participation of committee meetings,
hearing, any votes, as well as, meetings, hearing, and votes of the full body
senate ." Thus, by this opinion we have already acknowledged that we have no
power to coerce the Kentucky State Senate, if it chooses to ignore this opinion.
Moreover, if the Appellant, Ms. Stephenson, disregards the injunction,
then we will again be called upon to decide whether or not the contempt powers
of the Courts to enforce an injunction would themselves, be in violation of Section
43 of the Kentucky Constitution, which states, "the members of the General
Assembly shall, in all cases except treason, felony, or breach or surety of the
peace, be privileged from arrest during their attendance of the sessions of their
respective houses, and going to and returning from the same ; and for any
speech or debate in either house they shall not be questioned in any other
place." Ky. Const., Sec. 43. "[Legislative] immunity not only applies to
.
speech and debate, but to voting, reporting, and every act and execution of
their legislative duties while in either house." Wiggans v. Stuart, 671 S.W.2d
262, 264 (Ky. App. 1984) citing Tenney v. Brandhove , 341 U .S. 367, 71 S.Ct.
783, 95 L.Ed . 1019 (1951) .
This is the question left for another day. But it still bears out one point.
The resolution of this political question would have been resolved much better at
the ballot box, rather than in the courtroom . And we are all in this situation
because the majority has chosen to condone the calculated late filing of this type
of "pre-election proceeding" in a manner that precluded any effective court
process until after the election - thus rendering it an "Election Contest" and
putting it in conflict with Ky. Const. § 38.
- 23-
Constitutional Convention delegate, Mr. Charles J. Bronston, of Fayette
County, noted on the floor at the 1890 convention, that, "we will not submit to the
fluctuations of the future . Majorities might arise that would undertake to infringe
upon these liberties which we seek to secure and therefore, we will not submit
them to the rule of the majority ." What he was alluding to was the fact that the
protections built into the Constitution are to be honored by us and our posterity,
as they were written, until we properly amend the Constitution, or call a
convention to adopt a new one . I admit that it is much easier, simpler, and
quicker to amend the Kentucky Constitution by a majority vote of this Court. But
that does not make it right. In fact, it is as wrong as what the Senate did .
When all is said and done, few will acknowledge that I stood up for
Kentucky and its Constitution, rather than for Ms. Stephenson or Ms . Woodward .
But I did.
Having said all I can say in defense of our Constitution, I close in dissent.
,,Sixyrtntr Courf of ~tnfurkV
2005-SC-0603-TG
APPELLANT
DANA SEUM STEPHENSON
V
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1601-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
VIRGINIA L. WOODWARD AND DAVID L .
WILLIAMS, IN HIS CAPACITIES AS PRESIDENT
OF THE KENTUCKY STATE SENATE AND
OFFICIAL REPRESENTATIVE OF ALL
MEMBERS OF THE KENTUCKY STATE
SENATE
APPELLEES
AND
2005-SC-0604-TG
DAVID L. WILLIAMS, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
SENATE OF THE COMMONWEALTH OF
KENTUCKY
V.
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1602-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
VIRGINIA L . WOODWARD AND DANA
SEUM STEPHENSON
APPELLEES
AND
2005-SC-0645-TG
VIRGINIA L . WOODWARD
APPELLANT
V.
ON TRANSFER FROM COURT OF APPEALS
2005-CA-1643-MR
FRANKLIN CIRCUIT COURT NO. 2004-CI-1676
DANA SEUM STEPHENSON AND DAVID L.
WILLIAMS, IN HIS CAPACITIES AS PRESIDENT
OF THE KENTUCKY STATE SENATE AND
OFFICIAL REPRESENTATIVE OF ALL
MEMBERS OF THE KENTUCKY STATE
SENATE
APPELLEES
ORDER OF CORRECTION
The Dissenting Opinion by Justice Scott entered December 22, 2005, is
hereby corrected on its face by substitution of the attached pages 1 and 15 in lieu
of the original pages 1 and 15 of the dissenting opinion and because of this
correction the original Opinion of the Court entered December 22, 2005, is
hereby corrected on its face by substitution of the attached pages 1 and 2 in lieu
of the original pages 1 and 2 of the opinion . The purpose of this Order of
Correction is to correct a typographical error and does not affect the holding of
this Dissenting Opinion or the original Opinion of the Court.
ENTERED : January
1
, 2006.
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