AND LADONNA H. THOMPSON (IN HER OFFICIAL CAPACITY AS COMMONWEALTH OF KENTUCKY, EX REL. COMMONWEALTH'S ATTORNEY EDDY F. MONTGOMERY ()
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2009-SC-000107-TG
COMMONWEALTH OF KENTUCKY, EX REL.
ATTORNEY GENERAL JACK CONWAY
V.
ON APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J . SHEPHERD, JUDGE
NO. 08-CI-01651
LADONNA H . THOMPSON (IN HER OFFICIAL
CAPACITY AS COMMISSIONER OF
KENTUCKY DEPARTMENT OF CORRECTIONS)
AND
APPELLANT
APPELLEE
2009-SC-000252-TG
LADONNA H . THOMPSON (IN HER OFFICIAL
CAPACITY AS COMMISSIONER OF
KENTUCKY DEPARTMENT OF CORRECTIONS)
APPELLANT
ON APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A . TAPP, JUDGE
NO . 08-CI-01201
HONORABLE DAVID A. TAPP
(JUDGE, PULASKI CIRCUIT COURT)
AND COMMONWEALTH OF KENTUCKY, EX REL .
COMMONWEALTH'S ATTORNEY EDDY F. MONTGOMERY
(REAL PARTY IN INTEREST)
APPELLEES
OPINION AND ORDER
BY CHIEF JUSTICE MINTON
I . INTRODUCTION .
In April 2009, the Pulaski Circuit Court granted a permanent injunction
prohibiting the Department of Corrections (DOC) from releasing any prisoner
from custody or parolee from supervision "as a result of any change caused or
occasioned by the retroactive application of House Bill [HB] 406 [the
2008-10 biennial budget]." Four months later, the Franklin Circuit Court
refused the Kentucky Attorney General's request for a temporary injunction,
which would have temporarily enjoined the DOC from implementing HB 406 in
an allegedly retroactive manner.
Because of the apparent disagreement between the two circuit courts
concerning the effect of HB 406 and because these cases present issues of
great and immediate statewide importance, this Court granted transfer from
the Court of Appeals of both the DOC's petition for a writ of prohibition against
the Pulaski Circuit Court and the Attorney General's appeal of the Franklin
Circuit Court's refusal to grant a temporary injunction . After careful
consideration, we grant the writ against the Pulaski Circuit Court and affirm
the Franklin Circuit Court's denial of a temporary injunction .
II . FACTUAL AND PROCEDURAL HISTORY.
The relevant facts of the two underlying cases are largely the same and
appear to be uncontested. In 2008, the Kentucky General Assembly enacted
HB 406, the Commonwealth's biennial budget; and Governor Beshear signed it
into law. Part I, Section I(5)(c)(4)-(5) of HB 4061 drastically altered the law
regarding whether time spent on parole would count toward a prisoner's
unexpired sentence, providing that:
2008 Ky. Acts ch. 127.
(4) Probation and Parole Credit: Notwithstanding KRS 439 .344,
the period of time spent on parole shall count as a part of the
prisoner's remaining unexpired sentence when it is used to
determine a parolee's eligibility for a final discharge from parole as
set out in subsection (5) of this section or when a parolee is
returned as a parole violator for a violation other than a new felony
conviction .
(5) Minimum Expiration of Sentence : Notwithstanding
KRS 439.354, a final discharge shall be issued when the prisoner
has been out of prison on parole a sufficient period of time to have
been eligible for discharge from prison by minimum expiration of
sentence had he not been paroled, provided before this date he had
not absconded from parole supervision or that a warrant for parole
violation had not been issued by the board .
In this manner, HB 406 gave rise to "street credit," that effectively suspended
the existing statutory law that had provided that the period of time spent on
parole would not count toward a prisoner's maximum sentence . 2 Indeed, the
then-existing version of Kentucky Revised Statutes (KRS) 439 .344 said just the
opposite: "The period of time spent on parole shall not count as a part of the
prisoner's maximum sentence except in determining [a] parolee's eligibility for a
final discharge from parole as set out in KRS 439 .354 ." 3
"Street credit," also known as "street time," is a colloquial term referring to
counting time spent on parole toward a prisoner's sentence . See 67A C.J .S.
Pardon & Parole § 90 (2009) .
As will be discussed later, the General Assembly amended KRS 439.344 in 2009 .
The current version of that statute provides that:
The period of time spent on parole shall count as a part of the prisoner's sentence,
except when a parolee is:
(1) Returned to prison as a parole violator for a new felony conviction;
(2) Classified as a violent offender pursuant to KRS 439 .3401 ; or
(3) A registered sex offender pursuant to KRS 17 .500 to 17.580 .
Believing it to be in accordance with the General Assembly's intent, the
DOC began applying HB 406 to award street credit to prisoners for time spent
on parole before HB 406's effective date. As of November 2008, approximately
1,562 prisoners had been released from prison under HB 406 ; and
approximately 2,135 parolees had been finally discharged from parole at their
minimum expiration dates.4
Dissatisfied with the DOC's application of HB 406, in August .2008, Eddy
Montgomery, the Commonwealth's Attorney for the 28th Judicial Circuit of
Kentucky, 5 filed a petition for a declaratory judgment and injunction against
LaDonna Thompson, in her official capacity as Commissioner of the Kentucky
Department of Corrections. In short, Montgomery's action sought to prevent
the DOC from retroactively applying HB 406.
At the Commonwealth's Attorney's instance, the Pulaski Circuit Court
issued a restraining order in August 2008, followed by a temporary injunction
in September 2008, each of which prevented Thompson from retroactively
applying HB 406 either to release any prisoner from custody or to grant a final
discharge to any parolee. Both the temporary injunction and the restraining
4
5
As explained by the Pulaski Circuit Court, a prisoner's maximum expiration date
"is the date at which one's sentence would expire if served in its entirety without
the benefit of any good time credit, i.e., it is the longest period one could possibly
be kept in prison pursuant to a lawful sentence . . . ." By contrast, as the Pulaski
Circuit Court explained, a prisoner's minimum expiration date is "the maximum
expiration date less any `good time credit' for which an offender is eligible. It is the
date at which an offender would be released from incarceration if he or she were in
custody serving his or her sentence and credited with `good time credit . . . . "'
The 28th Judicial Circuit of Kentucky is comprised of Lincoln, Pulaski, and
Rockcastle Counties . KRS 23A.202(28) .
order were limited to prisoners or parolees in the DOC's custody by virtue of a
judgment entered in the 28th Judicial Circuit.
Although he had notice of the Commonwealth's Attorney's pending
Pulaski Circuit Court action, the Attorney General declined to intervene in that
suit. Instead, in October 2008, the Attorney General filed a strikingly similar
action in the Franklin Circuit Court against Commissioner Thompson.6 In his
complaint, the Attorney General asked the Franklin Circuit Court "to enjoin
statewide the Department of Corrections . . . from continuing to release
prisoners pursuant to its early release program ." In December 2008, despite
the fact that the Pulaski Circuit Court had already issued a temporary
injunction based upon the same facts, the Franklin Circuit Court denied the
Attorney General's request for a temporary injunction . The Attorney General
6
The Pulaski Circuit Court denied the DOC's forum non conveniens-based motion to
dismiss or transfer the case to the Franklin Circuit Court. Because it is not
necessary in order to decide these appeals, we express no binding opinion on the
propriety of the Pulaski Circuit Court's denial of the motion to transfer .
Also, we question whether it was procedurally proper for the Attorney General to
file a second action in the Franklin Circuit Court raising the same issues against
the same governmental entities involved in the pending Pulaski Circuit Court
action . Cf. 1A C .J.S. Actions § 226 (2009) ("The rule against splitting a cause of
action is for the protection of the defendant, and serves to prevent a multiplicity of
suits and appeals with respect to a single cause of action . It is designed to
promote fairness to the parties by protecting defendants against fragmented,
harassing, vexatious, and costly litigation, and the possibility of conflicting
outcomes.") (footnotes omitted) . But we need not decide if the Attorney General's
Franklin Circuit Court complaint should have been dismissed because the DOC
has not raised that issue .
appealed that decision, asking the Court of Appeals to grant relief under
Kentucky Rules of Civil Procedure (CR) 65 .07.7
Meanwhile, the Pulaski Circuit Court case moved forward . In April 2009,
the Pulaski Circuit Court issued a declaratory judgment and permanent
injunction permanently prohibiting the DOC "from releasing from custody any
prisoner currently incarcerated within a correctional institution of this state,
and from granting a final discharge to any person now subject to parole
supervision, as a result of any change caused or occasioned by the retroactive
application of House Bill 406." 8 Unlike the temporary injunction and
restraining order that preceded it, the permanent injunction was not limited to
prisoners and parolees serving sentences imposed by the 28th Judicial Circuit
Court. Since the permanent injunction did not contain language making it a
final and appealable order, 9 Commissioner Thompson filed a petition for a writ
CR 65.07(1) provides, in relevant part, that "[w]hen a circuit court by interlocutory
order has granted, denied, modified, or dissolved a temporary injunction, a party
adversely affected may within 20 days after the entry thereof move the Court of
Appeals for relief from such order."
To some extent, the Pulaski Circuit Court's injunction came too late because
thousands of prisoners and parolees had already been given final discharges ; and
the Attorney General stated at oral argument that it was not asking this Court to
order the re-arrest of those discharged prisoners and parolees . Nevertheless, this
case is not entirely moot because other prisoners and parolees have not been, and
will not be, released or discharged if the Pulaski Circuit Court's permanent
injunction stands.
The Pulaski Circuit Court did not intend the permanent injunction to bring an end
to Montgomery's action because the permanent injunction stated, "[a]11 further
issues are reserved pending further proceedings ." Because it appears that the
main issues before that court were resolved by the declaratory judgment and
permanent injunction, it is unclear what further proceedings the Pulaski Circuit
Court contemplated . Regardless, we accept for purposes of this writ proceeding
that the case was not ripe for direct appeal.
of prohibition with the Court of Appeals, seeking to prevent the Pulaski Circuit
Court from enforcing its injunction .
We granted transfer of both the Attorney General's appeal of the Franklin
Circuit Court's denial of a temporary injunction and of the DOC's petition for a
writ of prohibition against the Pulaski Circuit Court . We have elected to
resolve both appeals in this combined opinion.
111 . ANALYSIS.
A. Standards of Review .
Since they are in different procedural postures, the standards of review
are different for the Attorney General's appeal from the Franklin Circuit Court
than for the DOC's petition for a writ of prohibition against the Pulaski Circuit
Court .
l . The Writ Standard .
We may issue a writ if:
(1) the lower court is proceeding or is about to proceed outside of
its jurisdiction and there is no remedy through an application to
an intermediate court; or (2) [] the lower court is acting or is about
to act erroneously, although within its jurisdiction, and there
exists no adequate remedy by appeal or otherwise and great
injustice and irreparable injury will result if the petition is not
granted . 10
10
Hoskins v . Maricle, 150 S .W.3d 1, 10 (Ky. 2004) .
The DOC does not contend that the Pulaski Circuit Court acted outside
its jurisdiction when it issued an injunction ." So our focus is on the second
type of writ classification .
A writ is an extraordinary remedy that should be issued only in
exceptional circumstances. 12 And we have ruled that the requirement that a
writ may issue only if a petitioner lacks an adequate remedy by appeal is
Inother words, a writ may not issue "unless the petitioner can
"absolute." 13
demonstrate that traditional post hoc appellate procedures do not provide him
or her with an adequate remedy." 14 But the irreparable injury requirement is
not as absolute. A court may grant a writ without a showing of irreparable
harm "provided a substantial miscarriage ofjustice will result if the lower court
is proceeding erroneously, and correction of the error is necessary and
appropriate in the interest of orderly judicial administration ."' 5 Issuance of a
writ in those rare situations is really a court's recognition that "if it fails to
act[,] the administration ofjustice generally will suffer the great and irreparable
injury." 16
12
13
14
15
16
As will be discussed later, the DOC does contend that the Pulaski Circuit Court
lacked jurisdiction to issue a statewide injunction . But arguing about the proper
scope of an injunction is not the same as arguing that a court lacked the inherent
jurisdiction to issue an injunction .
See, e.g., Fletcher v. Graham, 192 S .W.3d 350, 356 (Ky. 2006) .
Adventist Health Systems v. Trude , 880 S .W.2d 539, 541(Ky. 1994), overruled on
other grounds by Sisters of Charity Health Systems, Inc . v. Raikes, 984 S.W. 2d 464
(Ky. 1998) .
Flynt v. Commonwealth , 105 S.W.3d 415, 422 (Ky. 2003) .
Bender v. Eaton , 343 S .W.2d 799, 801 (Ky. 1961) .
Id.
2 . The Temporary Injunction Standard .
The proceedings in the Franklin Circuit Court are not final . So it is
important to remember that "[a] motion for a temporary injunction does not
call for, or justify, an adjudication of the ultimate rights of the parties ." 17
Rather, a temporary injunction should issue "only where it is clearly shown
that one's rights will suffer immediate and irreparable injury pending trial." 1 s
In other words, a temporary injunction is of a limited scope and duration and
is proper "only where absolutely necessary to preserve a party's rights pending
the trial of the merits ."19 A temporary injunction should not issue in "doubtful
cases . .
"20
A court faced with a request for a temporary injunction must analyze the
request on three levels.
First, the trial court should determine whether plaintiff has
complied with CR 65 .04 by showing irreparable injury. This is a
mandatory prerequisite to the issuance of any injunction .
Secondly, the trial court should weigh the various equities
involved . Although not an exclusive list, the court should consider
such things as possible detriment to the public interest, harm to
the defendant, and whether the injunction will merely preserve the
status quo . Finally, the complaint should be evaluated to see
whether a substantial question has been presented . If the party
requesting relief has shown a probability of irreparable injury,
presented a substantial question as to the merits, and the equities
are in favor of issuance, the temporary injunction should be
awarded . However, the actual overall merits of the case are not to
be addressed in CR 65.04 motions . 21
17
18
19
20
21
Oscar Ewing, Inc. v. Melton, 309 S.W.2d 760, 761 (Ky. 1958) .
Maupin v. Stansbur_y, 575 S.W.2d 695, 698 (Ky.App . 1978) .
Id.
Id.
Id. at 699.
Because the granting or denial of a temporary injunction under CR 65.04
is "addressed to the sound judicial discretion of the trial judge[,]"22 a party
seeking interlocutory relief from a trial court's decision to grant or deny a
temporary injunction bears an "enormous burden . . . ."23 And an appellate
court may not disturb a trial court's decision on a temporary injunction unless
the trial court's decision is a clear abuse of discretion .24 "The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles ." 25
B. A Writ of Prohibition Is Proper in this Case.
The first question to be asked in the writ case is whether the trial court
erred by concluding that the DOC was improperly applying HB 406 . After all,
there would be no basis to issue a writ if the trial court had jurisdiction and
came to a proper conclusion . So our primary task by application of the writ
standard is to determine whether the trial court erred when it concluded that
the DOC improperly applied HB 406 retroactively .
Before addressing the merits, we must resolve two important preliminary
questions. First, we must determine whether the Pulaski Circuit Court had
jurisdiction to issue a statewide injunction . Second, we must determine
whether the DOC is actually applying HB 406 in a retroactive manner .
22
23
24
25
Oscar Ewin , Inc . , 309 S .W .2d at 762.
Kindred Hospitals Ltd. Partnership v. Lutrell, 190 S.W.3d 916, 919 (Ky. 2006) .
Oscar Ewin , Inc. , 309 S .W.2d at 762 .
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
1 . The Pulaski Circuit Court had Jurisdiction
to Is sue_.a Statewide Injunction .
No party disputes that the Pulaski Circuit Court had the subject matter
jurisdiction to entertain this type of declaratory judgment or injunctive relief
case. The DOC argues, however, that the Pulaski Circuit Court lacked the
authority to issue a statewide injunction . We disagree .
Section 109 of Kentucky's Constitution assures that Kentucky has a
unitary court system. Section 109 states that all "judicial power of the
Commonwealth shall be vested exclusively in one Court of Justice[,] which
shall be divided into a Supreme Court, a Court of Appeals, [and] a trial court of
general jurisdiction known as the Circuit Court . . . . The court shall constitute
a unified judicial system for operation and administration ." We have recently
held that "[c]onstitutionally speaking, Kentucky has but one circuit court[ ;] and
all circuit judges are members of that court and enjoy equal capacity to act
throughout the state."
The DOC appears to contend that only the Franklin Circuit Court has
the power to issue a statewide injunction . We do not doubt that the Franklin
Circuit Court, generally speaking, has such authority; but the jurisdiction of
the Franklin Circuit Court is not at issue . No party has cited any statute or
regulation that required this type of action to have been brought only in the
Franklin Circuit Court. The lack of such authority is important because the
General Assembly could easily have required this type of action to be brought
26
gaze v. Commonwealth , 276 S.W.3d 761, 767 (Ky. 2008) .
in the Franklin Circuit Court, as it has done in other types of actions .27
Instead, the General Assembly expressly authorized any "court of record of this
Commonwealth having general jurisdiction" to issue a declaratory judgment . 28
And, as already noted, the circuit courts of the Commonwealth, including the
Pulaski Circuit Court, are the courts of "general jurisdiction . . .
."29
Although
it now questions the Pulaski Circuit Court's authority to issue a statewide
injunction, the DOC does not contradict the Pulaski Circuit Court's statement
that "Thompson has conceded that both jurisdiction and venue are proper."
In sum, we have a situation in which the Pulaski Circuit Court had
jurisdiction, either expressly or by waiver, over both the subject matter and the
parties involved in this action . Also, there is no question regarding whether
venue was proper since, as stated before, the DOC conceded any venue issue .
Perhaps most importantly, we have been pointed to nothing that would have
required this action to have been brought in the Franklin Circuit Court. 30 To
the contrary, it is plain that our Constitution provides that there is only one
27
28
29
30
See, e.g., KRS 44 .020(2) (providing that the Franklin Circuit Court has "exclusive
jurisdiction of all actions against the Governor's Office for Local Development to
compel the payment of claims against the State Treasury.") .
KRS 418.040 ("In any action in a court of record of this Commonwealth having
general jurisdiction wherein it is made to appear that an actual controversy exists,
the plaintiff may ask for a declaration of rights, either alone or with other relief;
and the court may make a binding declaration of rights, whether or not
consequential relief is or could be asked.") .
Ky. Const. § 109 .
We recognize that permitting each circuit court to issue a statewide injunction
could lead to inconsistent results between judicial circuits, as exemplified by the
case at hand. The remedy for that unfortunate possibility, however, lies with the
General Assembly.
circuit court, which leads to the logical conclusion that in the absence of
express authority to the contrary, each geographic division of the one statewide
circuit court has co-equal abilities and powers .
Additionally, it seems that Commonwealth's Attorney Montgomery would
not have been able to bring this action in his official capacity in any court lying
outside the circuit from which he was elected. 31 So we conclude that the
Pulaski Circuit Court had powers co-extensive with the Franklin Circuit Court
or any other appropriate circuit court to adjudicate this matter and to grant a
declaratory judgment or injunction, statewide or otherwise .32
31
32
See, e.g., Thompson v. Carr , 13 Bush 215, 76 Ky. 215, 1877 WL 7650 at *4 (1877)
("The office of commonwealth's attorney being created by the constitution, and that
instrument requiring the office to be filled by popular election in each judicial, i. e.
circuit court district, that officer when elected must perform his duties in the
district by which he was elected, and the legislature can neither authorize nor
require him to go outside of it, unless they may do so by changing his district at
the first session after an enumeration or when a new district is established .") ;
KRS 69.010(1) ("Except as provided in subsection (2) of this section, the
Commonwealth's attorney shall, except in Franklin County, attend to all civil cases
and proceedings in which the Commonwealth is interested in the Circuit Courts of
his judicial circuit.") (emphasis added) .
Because it has not been raised by the parties as an issue, we express no opinion as
to whether Commonwealth's Attorney Montgomery's position gave him a special
status to file this type of action over and above the status of any citizen of this
Commonwealth . But we do note that by agreed order, the Pulaski Circuit Court
case was re-captioned to reflect that the plaintiff was the Commonwealth of
Kentucky, ex rel Eddy Montgomery . So, like the Franklin Circuit Court case, the
named plaintiff in the Pulaski Circuit Court was the Commonwealth of Kentucky,
not merely Montgomery as an individual .
We note the concern expressed by the Franklin Circuit Court and the DOC that
some of the real parties in interest in this matter-the prisoners potentially affected
by HB 406-are not before the Court in either the Pulaski or Franklin Circuit Court
actions . Arguably, since the proper calculation of their sentences is directly
affected by HB 406, all potentially affected prisoners and parolees should have
been joined as parties in the action since they appear to have "an interest relating
to the subject of the action[s] and . . . [are] so situated that the disposition of the
action in . . . [their] absence may . . . impair or impede . . . [their] ability to protect
2 . The DOC is Applying HB 406 Retroactively .
An argument could be made that the DOC did not apply HB 406
retroactively . Instead, as the Franklin Circuit Court seemed to conclude, the
DOC merely applied HB 406 equally to all affected prisoners or parolees
because the bill contains no express exclusions or limitations on the prisoners
or parolees to which it applies .33 However, all parties (including the DOC) seem
33
that interest . . . ." CR 19 .01 . But for logistical and other reasons it is not
practical to make all potentially affected prisoners and parolees parties to these
actions. And since the potentially affected prisoners and parolees presumably
received their sentences from the circuit courts across the Commonwealth, it
would be very difficultperhaps even impossible-for each to have properly
appeared in any one circuit court without a class action .
Since the DOC and Thompson-who collectively are directed to supervise probation
and parole under KRS 196 .030(1)(b), to supervise correctional facilities, and to
determine the minimum and maximum release dates of prisoners under KRS
196 .070(1)-are properly before the Court by waiver or otherwise and are taking a
position ultimately favorable to the prisoners and parolees, we conclude that these
actions may proceed, especially since the prisoners and parolees will suffer no
prejudice from their absence because the outcome of these appeals is favorable to
them. See CR 19 .02 (setting forth factors to consider when determining whether
an action should be dismissed due to the absence of persons who should have
been joined as parties, including "to what extent a judgment rendered in the
person's absence might be prejudicial to him or those already parties . . . .") .
The Attorney General contends or implies that the DOC erred by applying HB 406
to murderers, sexual offenders, and violent offenders . But there is no language in
HB 406 that would permit the DOC to refuse to apply its terms to any group of
prisoners or parolees-other than the narrow exception that parolees returned to
prison as parole violators for receiving new felony convictions shall not receive
credit for time spent on parole . Neither we-nor the DOC-may take it upon
ourselves to write exceptions into a statute. See, e.g., Jones v. Commonwealth ,
279 S.W.3d 522, 526 (Ky. 2009) ("a longstanding rule in this Commonwealth
prohibits a court from judicially creating and grafting exceptions onto a statute
when the General Assembly did not see fit to do so .") . But HB 406 does not
expressly supersede the more stringent treatment afforded sexual or violent
offenders, such as the mandate in KRS 439 .340(11) that sexual offenders not be
granted parole unless they have successfully completed the sexual offender
treatment program or the mandate in KRS 439.3401(3) that violent offenders
sentenced to a term of years for capital, Class A, or Class B felonies not be released
on probation or parole until they have served at least 85 percent of their sentences.
By contrast, the General Assembly expressly precluded violent offenders and
to agree that the DOC is applying HB 406 retroactively . 34 And since HB 406 is
a biennial budget bill, effective for only a two-year time period, then it logically
follows that giving prisoners or parolees credit for time spent on parole before
the effective date of that legislation is a retroactive act.
BLACK'S LAW DICTIONARY
defines a retroactive law as "[a] legislative act that looks backward or
contemplates the past, affecting acts or facts that existed before the act came
into effect."35 Giving prisoners and parolees credit for time served on parole
before the effective date of HB 406 fits nicely that definition since giving
prisoners and parolees credit for something done before the act's effective date
plainly "affect[s] acts or facts that existed before the act came into effect." So
34
35
registered sex offenders from receiving credit for time spent on parole as part of
their sentences in the current version of KRS 439 .344(2)-(3) .
Similarly, we reject any argument that a retroactive application of HB 406 was
improper because the prisoners and parolees released would tend to-or did-reoffend . Obviously, recidivism is a risk inherent in the release of any prisoner at
any time; but we have been shown nothing that proves that the prisoners or
parolees released "early" by the DOC's application of HB 406 pose a greater danger
to the citizens of this Commonwealth than prisoners and parolees released under
other circumstances . As the Franklin Circuit Court noted, "[n]o evidence has been
presented to show that inmates released early under HB 406 are re-offending at a
greater rate than the historical recidivism rate for inmates prior to implementation
of the `early release' policy under HB 406." Moreover, the General Assembly has
expressed in HB 406 that the public policy of the Commonwealth is, for the twoyear duration of that legislation, for prisoners and parolees to receive "street
credit." Whether that policy is wise is a matter reserved for the legislature, not the
courts . Owens v. Clemons, 408 S.W.2d 642, 645 (Ky. 1966) ("the legislature, when
it acts upon a particular subject matter, establishes such policy . . . . It is beyond
the province of a court to vitiate an act of the legislature on the ground that the
public policy therein promulgated is contrary to what the court considers to be in
the public interest . . . . The propriety, wisdom and expediency of statutory
enactments are exclusively legislative matters.") .
The DOC has not taken issue with the Pulaski Circuit Court's statement in its
temporary injunction order that "[DOC] stipulated that the `good time' provision of
HB 406 is being applied retroactively."
BLACK'S LAW DICTIONARY (8th ed. 2004) .
we shall treat the DOC's interpretation of HB 406 as being retroactive in
nature.
3. It is Proper to Apply HB 406 Retroactively .
Having accepted that the DOC is applying HB 406 retroactively, we must
now consider whether such a retroactive application is consistent with the
intent of the General Assembly, as evidenced by the language used
in HB
406.
a. Estoppel Not Applicable.
We reject Montgomery's contention-as echoed by the Attorney General
in the Franklin Circuit Court action-that the DOC is procedurally barred or
estopped from retroactively applying HB 406 since it argued against retroactive
application of the similar biennial budget enacted in 2003 .36 To the contrary,
an administrative agency, such as the DOC, may depart from its earlier
interpretation of the law, provided that the agency "explicitly and rationally
justifies] such a change of position ."37
In the case at hand, the DOC has not changed its interpretation of the
same law because, even though they are similar, the 2003 biennial budget is a
different piece of legislation from the 2008 biennial budget . It should also be
noted that the gubernatorial administration, which has a direct effect on the
36
37
See, e.g., Noland v. Dept. of Corrections , 266 S.W.3d 249, 251 (Ky.App . 2008)
(rejecting prisoner's claim that the biennial budget passed in 2003, containing
similar "notwithstanding KRS 439.344" language, meant that prisoner was entitled
to declaratory judgment ordering the DOC to credit time spent on parole against
prisoner's sentence because the prisoner's parole "was revoked before the
provisions of [HB] 269 became effective, [meaning] he is unable to avail himself of
their ameliorative effect on his sentence[s] length .") .
In re Hughes 8v Coleman , 60 S.W.3d 540, 544 (Ky. 2001) .
officers leading the DOC and the positions taken by those officers, was different
at the time the 2003 budget was enacted. It is hardly surprising or improper
for different gubernatorial administrations to have different conclusions on the
proper scope and effect of various statutes-even statutes of a similar nature .
In short, each administration or administrative agency chief is not inalterably
bound by the decisions of predecessors .
And even if we assumed that the DOC has changed its interpretation of
the law, we are satisfied that the change has been sufficiently justified because,
as the DOC notes, there was no commensurate budgetary reduction to support
a retroactive application of the 2003 biennial budget. So we distinguish this
case from those cases, such as Noland, which held that the DOC acted
properly in not applying the 2003 budget bill retroactively. In short, we reject
any claim that the DOC's interpretation of the 2003 budget bill binds it or
estops it from interpreting differently the 2008 budget bill .
b. General Principles of Retroactivity .
Precedent shows that the General Assembly has the power to suspend
statutes, even if the suspension occurs in a budget bill.38 Precedent also holds
that the General Assembly has the power to suspend statutes retroactively . 39
The question before us today, then, is not whether the General Assembly may
38
39
Baker v . Fletcher , 204 S.W.3d 589, 592 (Ky. 2006) ("It is beyond dispute that the
General Assembly possesses power to suspend statutes . . . . Prevailing precedent
of this Court provides that the General Assembly may also suspend statutes in a
budget bill.").
Id. ("Moreover, the General Assembly may retroactively suspend statutes in some
circumstances . . . .").
retroactively suspend statutes in a budget bill, typically by inserting a clause
beginning with the word notwithstanding. The more pertinent question is
whether the General Assembly intended to suspend KRS 439 .344 and
KRS 439 .354 retroactively when it enacted HB 406. If so, the DOC obviously
acted properly in giving FIB 406 retroactive application ; and the Pulaski Circuit
Court erred in issuing an injunction to stop the DOC from carrying out the
General Assembly's intent. If not, however, then the Pulaski Circuit Court
acted properly in preventing the DOC from acting in a manner contrary to the
General Assembly's intent.
We have held that retroactive application of statutes is improper unless
the General Assembly "clearly manifests its intent" for the statute in question
to have retroactive application . 40 And although we have held that the General
Assembly need not use "magic words"41 to evidence its intent for retroactive
application, we have forcefully held that "there is a strong presumption that
statutes operate prospectively and that retroactive application of statutes will
be approved only if it is absolutely certain the legislature intended such a
result." 42
40
41
42
Id. ("Moreover, the General Assembly may retroactively suspend statutes in some
circumstances, provided that the legislature clearly manifests its intent to do so.") .
Id. at 597 ("Though it is clear that the General Assembly must expressly manifest
its desire that a statute apply retroactively, magic words are not required .") . See
also KRS 446 .080(3) ("No statute shall be construed to be retroactive, unless
expressly so declared .") .
Commonwealth Dept. of Agriculture v . Vinson , 30 S .W.3d 162, 168 (Ky. 2000).
Optimally, the General Assembly will state clearly that it intends
legislation to have retroactive effect, as it did in 1996 when it amended the
worker's compensation statutes .43 The question is more difficult in cases like
the one before us in which the General Assembly does not explicitly state that
HB 406 must apply retroactively. But a failure to state explicitly that
legislation is to apply retroactively does not always mean that a court may not
determine that the legislation has retroactive effect . After all, the General
Assembly need not use "magic words"-instead, all that "is required is that the
enactment make it apparent that retroactivity was the intended result."44 So a
reviewing court may discern the General Assembly's intent for legislation to
have a retroactive effect by using traditional tools for statutory interpretation .
Among the most helpful aids in interpreting HB 406 is a budgetary analysis,
such as the one found in Baker.
c. Baker .
Baker involved a scenario in which the General Assembly had failed to
enact a biennial budget in 2002, leading then-Governor Patton to issue an
executive spending order. That executive order provided for a 2 .7 percent
annual salary increment for state employees, the fact that KRS 18A.355(1)
guaranteed state workers at least a 5 percent annual salary increment
43
44
See KRS 342 .0015 (providing, in pertinent part, that "[t]he provisions of
KRS 342 .120(3), 342.125(8), 342 .213(2)(e), 342 .265, 342 .270(3), 342 .320,
342 .610(3), 342 .760(4), and 342.990(11) are remedial .").
Baker, 204 S .W.3d at 597.
notwithstanding . 45 In 2003, the General Assembly belatedly enacted a biennial
budget for the fiscal year beginning July 1 2002, through June 30, 2004 . Like
Governor Patton's executive order, that budget provided for a 2 .7 percent salary
increment for state workers for the 2002-03 fiscal year. Several state workers
filed a declaratory judgment action against Ernie Fletcher, who had become
Governor, arguing that they were entitled to a 5 percent salary increment for
2002-03 because Governor Patton lacked the authority to suspend
KRS 18A.355 . 46 We held that Governor Patton's purported suspension of
KRS 18A.355 was void ab initio and that members of the General Assembly
were immune for their official actions (or inactions) .47
Despite those seemingly insurmountable obstacles to the plaintiffs'
claims against then-Governor Fletcher, we, nonetheless, chose to address
"whether Appellants would have been entitled to the five percent pay increase
even if a proper defendant had been named ."48 In the course of answering that
question in the negative, we concluded that there was "no doubt" that the
General Assembly intended to suspend KRS 18A.355 retroactively for the
duration of the 2002-04 biennial budget.49 Chief among our reasons was the
fact that the budget contained explicit language providing for a retroactive
45
Id. at 591 .
46
Id. at 591-92 .
47
Id. at 593-97 .
48
Id. at 597 .
49
Id.
suspension of KRS 18A .355.5° Important to the case at hand, however, we also
noted that our conclusion that the General Assembly intended to suspend
retroactively KRS 18A.355 was "confirmed by the actual amount of money
appropriated . The General Assembly appropriated just enough to pay a two
and seven-tenths percent raise for all employees . . . . Where a sum certain is
appropriated[,] there can be no legitimate contention that more spending was
intended." 51
d . Application of Baker .
Turning to the case now before us, by using Baker as a guidepost, we
may properly look to the funds appropriated to the DOC in HB 406 to
determine whether the General Assembly intended HB 406 to apply
retroactively.
It is uncontested that the funds allocated to the DOC were significantly
reduced from the budget request submitted by the Governor .52 Indeed, as the
Pulaski Circuit Court noted in its permanent injunction, the "final version of
FIB 406 [that] was ultimately enacted included a $12 million budget cut in
fiscal year [2008-09] and a $19 million budget cut in fiscal year [200910] . . . ." The "street credit" provisions were in the original budgets of both
50
51
52
As the Pulaski Circuit Court noted, "[t]he initial budget proposed by the House [of
Representatives] contained significant budget cuts to [the DOC] when compared to
the sums requested in the branch budget . The initial proposed Senate budget also
reflected significant budget cuts when compared to [the DOC's] portion of the
branch budget . . . ."
chambers of the General Assembly, and were "not altered in any manner by
subsequent amendments or alterations to the proposed budgets of each
chamber . . . ." Upon request of the Senate leadership, the state budget office,
assisted by the DOC, submitted a financial analysis showing the anticipated
savings resulting from the street credit provision of the proposed budget,
including nearly $6 million in fiscal year 2008-09 and nearly $7 .5 million in
fiscal year 2009-10 . It is uncontested that those calculations required
retroactive application of the street credit provision to realize the proposed
savings. 53
It is abundantly clear from the facts and circumstances surrounding the
passage of HB 406, therefore, that the General Assembly wanted the DOC to
save as much money as is legally feasible . Also, the numbers presented by the
DOC and the state budget office to the General Assembly regarding potential
savings from a broad application of the street credit provisions were based
upon an expectation that those provisions would be applied retroactively .
Unlike the Pulaski Circuit Court, we find it inconsequential that the
General Assembly members apparently did not make in-depth inquiries about
whether the savings provisions were to apply retroactively or that the projected
53
Both the Pulaski and Franklin Circuit Courts made similar findings on this issue .
The Pulaski Circuit Court found in its final injunction that "the calculations
prepared by [the DOC] require retroactive application to justify the projected costs
savings . . . ." The Franklin Circuit Court found in its order denying the Attorney
General's request for a temporary injunction that "[t]he budget cuts imposed by the
legislature on DOC were consistent with the numbers [the DOC] submitted to the
legislative budget committees for costs savings resulting from the broad application
of the `street time' credit."
savings calculations were not provided to each member of the General
Assembly .54 Nor is our decision affected by the lack of floor debate about street
credit provisions in both legislative chambers . The General Assembly speaks
through the laws it enacts, and the severe budget cuts contained in FIB 406
speak loudly the General Assembly's intent that the DOC should strive to save
as much as possible . Moreover, the DOC's decision to apply the street credit
and related provisions of HB 406 retroactively is not rendered infirm by the fact
that the Executive Branch, of which the DOC is a part, could theoretically have
saved just as much-if not more-scarce resources if the Governor had simply
exercised his constitutional pardon and commutation powers . 55 In other
54
Apparently, at least a small percentage of the members of the General Assembly
were told by Deputy State Budget Director John Hicks that the DOC intended to
achieve cost savings by applying HB 406 retroactively . So it cannot be said that
the General Assembly was taken totally unawares by the DOC's intent to apply
HB 406 retroactively . We cannot interpret a statute based upon sheer speculation
as to what was-or may have been-in the minds of the legislators at the time the
statute was enacted .
55
See Ky. Const. § 77 (providing that the Governor "shall have power to remit fines
and forfeitures, commute sentences, grant reprieves and pardons . . . .") . Since the
street credit provisions are not the same as gubernatorial pardons or
commutations of sentences, we reject any argument that HB 406 violates
Section 77 of the Kentucky Constitution .
Interestingly, although elected independently of the Governor, the Attorney General
is also a member of the Executive Branch. See 7A C.J.S. Attorney General § 29
(2009) ("The attorney general's office is a branch of the executive department of
state government and not a legislative or judicial branch of the government.") . So
the Franklin Circuit Court case brought by the Attorney General against Thompson
and the DOC is an intra-Executive Branch dispute . In that same vein, even
though also elected independently of the Governor, since the Commonwealth's
Attorney is "the chief prosecutor in the circuit court," Commonwealth v. Euster,
237 Ky. 162, 35 S.W .2d 1, 2 (1931), and "[ilt is manifest that the prosecution of
crime is an executive function[,]" Flynt, 105 S .W.3d at 424, then Montgomery is
also a member of the Executive Branch. Accordingly, Montgomery's Pulaski Circuit
Court action against Thompson and the DOC is also an intra-Executive Branch
dispute.
words, since the General Assembly appropriated even less money than the
DOC projected to save through the retroactive application of the street time
credit, 56 then "there can be no legitimate contention that more spending was
intended."57
e . Other Factors Support Retroactivity .
The DOC's retroactive application of HB 406 is also supported by the
plain language used in that bill.58 HB 406 authorizes street credit for "time
spent" on parole . Obviously, "spent" is a past-tense verb; and the General
Assembly did not see fit to add any modifying or limiting language (such as
"time spent after the effective date of this act") to this facially broad provision.
So we agree with the DOC that the plain language of HB 406 supports a
conclusion that the General Assembly intended for the street credit provision to
apply to all time spent on parole-including time spent on parole before the
effective date of HB 406 . This conclusion is reinforced by the fact that the
General Assembly later amended KRS 439 .344 itself to provide that, with
certain exceptions, "[t]he period of time spent on parole shall count as a part of
the prisoner's sentence. . . ." Had the General Assembly disagreed with the
56
57
58
As it turned out, the DOC apparently achieved the projected costs savings in
November 2008 . But the fact that the retroactive application of HB 406 apparently
saved even more than was planned does not affect our conclusion that the General
Assembly intended for the DOC to apply HB 406 in a retroactive manner . Nor
would achieving the projected savings early in the biennium mean that the DOC
should have stopped applying HB 406 retroactively since there is no language in
HB 406 to indicate that the General Assembly did not intend for that legislation to
apply retroactively for its entire effective lifetime .
Baker, 204 S.W.3d at 597.
See, e.g., Lewis v. Jackson Energy Co-op Corp. , 189 S.W.3d 87, 92-93 (Ky. 2005)
(using grammatical structure of statute as interpretive aid) .
DOC's interpretation of HB 406, it would have been illogical for the General
Assembly to have permanently amended KRS 439 .344 by inserting similar
language to that used in HB 406 .
Finally, we must be careful not to examine HB 406's street credit
provision in a vacuum . Rather, we must construe the street credit provision in
conjunction with the other sections of that bill. As our predecessor court held,
"[s]tatutes in pari materia or those which relate to the same person or thing, or
to the same class of persons or things, or which have a common purpose, must
be construed together and the legislative intention apparent from the whole
enactment must be carried into effect ."59 We conclude that the General
Assembly's intent regarding the street credit provision may be gleaned by
examining the subsection that immediately follows it.
Part I, Section I(5)(c)(5) of HB 406 provides that "[n]otwithstanding
.
KRS 439 .354, a final discharge shall be issued when the prisoner has been out
of prison on parole a sufficient period of time to have been eligible for discharge
from prison by minimum expiration of sentence had he not been
paroled . . .
."60
So construing the street credit section together with the
minimum discharge section leads to the unmistakable conclusion that the
General Assembly intended for the DOC to release or discharge as many
prisoners or parolees as possible in order to save as many state dollars as
59
60
Milner v. Gibson , 249 Ky. 594, 61 S.W.2d 273, 277 (1933) .
In 2009, the General Assembly amended KRS .439.354(1) to provide, with some
exceptions, parolees are to be given final discharges after reaching their minimum
expiration dates.
possible . Since the most efficacious and logical manner of ensuring maximum
savings is to apply retroactively the street credit provision, we conclude that
the DOC's retroactive application of HB 406 was in accordance with the
General Assembly's intent. After all, it would have been illogical for the
General Assembly to have intended a restrictive version of the street credit
provision while simultaneously cutting the DOC's funding and ordering the
DOC to release prisoners on their minimum expiration dates.
In summary, we conclude that the Pulaski Circuit Court erred when it
determined that the General Assembly did not intend HB 406 to have
retroactive effect. We then must turn to whether this error is sufficient to rise
to the level necessary to grant a writ. 61
4 . Application of the Writ Standard .
Since this is not a no jurisdiction-type of writ action, we must determine
whether the DOC lacks an adequate remedy by appea1 . 62 It is unclear what
further proceedings remain to be conducted in the Pulaski Circuit Court . But
if left undisturbed until appeal, the Pulaski Circuit Court's erroneous
interpretation of the retroactivity of HB 406 will have caused many prisoners
and parolees to remain improperly under the DOC's supervision, resulting in
61
62
See, e.g., Commonwealth v. Paisley, 201 S .W.3d 34, 36-37 (Ky. 2006) (holding that
"demonstration of error does not necessarily entitle" petitioners to a writ unless the
standards for granting a writ have been met) .
Hoskins, 150 S.W.3d at 10 .
expenditure of scarce state funds . 63 Since those expended and yet -to be
expended state funds cannot be recouped and the improperly detained
prisoners or parolees cannot regain lost freedom from incarceration or
supervision, we conclude that the DOC does not have an adequate remedy by
appeal.
Next, we then must determine whether the DOC has shown that either it
will suffer an irreparable injury absent the writ or that the failure to issue the
writ would result in a substantial miscarriage of justice.64 As stated before,
allowing the Pulaski Circuit Court's erroneous permanent injunction to stand
would result in the continued incarceration or supervision of prisoners or
parolees, which would, in turn, cause the expenditure of scarce state funds to
house or supervise those prisoners or parolees. There would be no mechanism
for the DOC to recoup those expenses if it prevailed later on a direct appeal. So
we conclude that the DOC has shown that it would suffer an irreparable injury
unless a writ issues . Furthermore, we deem it to be a substantial miscarriage
of justice for prisoners or parolees to continue to be incarcerated or supervised
in a manner contrary to the intent of the General Assembly, as embodied in
HB 406 . Simply put, once a prisoner or parolee has completed his authorized
sentence, justice demands that the prisoner or parolee be released from the
DOC's supervision.
63
64
According to the DOC's petition for a writ, 85 people had been denied release as of
May 1, 2009 . At the expiration of HB 406 next June, over 800 people will have
been denied release.
Hoskins, 150 S.W .3d at 10; Bender, 343 S .W.2d at 801 .
For the foregoing reasons, therefore, we conclude that a writ of
prohibition should issue against the Pulaski Circuit Court in this action .
C . CR 65 .07 Relief is Not Warranted.
Although we do not express any binding opinion as to the ultimate merits
of the Franklin Circuit Court action,65 application of the foregoing reasoning
leads to the conclusion that the Franklin Circuit Court's refusal to issue a
temporary injunction was not "arbitrary, unreasonable, unfair, or unsupported
by sound legal principles ." 66 So we hold that the Franklin Circuit Court did not
abuse its discretion when it denied the Attorney General's request for a
temporary injunction .
Because many of the issues are the same, we need not repeat our
discussion of the issues raised in the Pulaski Circuit Court action. But the
parties to the Franklin Circuit Court action have raised four important issues
that we must address for the benefit of the trial court and parties to this action,
as well as the bench and bar of the Commonwealth in any future similar
actions.
First, we must address the Franklin Circuit Court's conclusion,
advocated by the DOC on appeal, that the Attorney General lacks standing to
seek injunctive relief in this case. Second, we must address the Attorney
General's argument that HB 406 violates the truth-in-sentencing law. Third,
6s
66
Oscar Ewing_ Inc. , 309 S.W.2d at 761 ("A motion for a temporary injunction does
not call for, or justify, an adjudication of the ultimate rights of the parties .") .
English, 993 S.W.2d at 945.
we must address the Attorney General's argument that retroactive application
of HB 406 violates the separation of powers doctrine. And, finally, we must
address the Attorney General's argument that HB 406 violates KRS 197 .045(1) .
We reject all four arguments.
1 . The Attorney General has Standing to Seek an Injunction .
Among the reasons the Franklin Circuit Court declined to issue a
temporary injunction was its holding that the Attorney General lacked standing
to seek an injunction in this case because the Attorney General did not allege
the violation of a personal right. We do not fault the Franklin Circuit Court for
reaching that conclusion because it is based upon precedent, Commonwealth
ex rel. Cowan v. Wilkinson . 67 But, upon reflection, we have concluded that we
erred in Wilkinson by holding that the Attorney General lacked the ability to
seek an injunction in that case because he did not have a "personal right of
any kind" in the action.68
In the waning days of his administration, then-Governor Wallace
Wilkinson appointed himself as a member of the Board of Trustees of the
University of Kentucky . The Attorney General sued, and the Franklin Circuit
Court granted a temporary injunction prohibiting Governor Wilkinson from
taking the oath as a trustee . Wilkinson appealed, and the Court of Appeals
dissolved the temporary injunction . 69 The Attorney General then asked the
828 S.W.2d 610 (Ky. 1992) .
68 Id. at 613.
69 Id. at 611-12.
67
Court to vacate or modify the order of the Court of Appeals . Over the dissent of
Justice Leibson, a majority affirmed the Court of Appeals. 70
In the majority's analysis, it recited the proposition that "[i]n order to
demonstrate a right to a temporary injunction, the movant must first allege
possible abrogation of a concrete personal right. Some substantial claim to a
personal right must be alleged in order for a movant to be entitled to a
temporary injunction ."71 The majority then concluded that the Attorney
General "has not demonstrated or made a clear showing by affidavit or verified
complaint that his rights are being or will be violated so as to cause immediate
and irreparable injury."72 Going further, the majority opined that "[h]ere the
Attorney General has no personal right of any kind [in this case] . A doubtful
case should await a trial on the merits . This is clearly a very doubtful case as
to the standing of the Attorney General ."73
Having fully considered the law and the arguments of the parties, we now
state categorically that we have no doubt that the Attorney General of the
Commonwealth of Kentucky has standing to seek injunctive relief on behalf of
the citizens of the Commonwealth, as was done in the Franklin Circuit Court
case at hand . So, to the extent that Wilkinson holds otherwise, it is overruled.
70
71
72
73
Id. at 616.
Id. at 612 .
Id. at 613 .
Id.
KRS 15 .020 provides, in the role as "chief law officer of the
Commonwealth of Kentucky[,]" the Attorney General "shall exercise all common
law duties and authority pertaining to the office of the Attorney General under
the common law, except when modified by statutory enactment."74 It is
unquestioned that "[alt common law, [the Attorney General] had the power to
institute, conduct[,] and maintain suits and proceedings for the enforcement of
the laws of the state, the preservation of order, and the protection of public
rights."75 Or, in other words, "[u]nder the common law, the attorney general
has the power to bring any action which he or she thinks necessary to protect
the public interest, a broad grant of authority which includes the power to act
to enforce the state's statutes." 76 So we readily conclude that the Attorney
General, by virtue of that office, had the right to file an action in the Franklin
Circuit Court seeking injunctive relief to prevent the DOC from, in the Attorney
General's view, improperly and unconstitutionally applying HB 406
retroactively.
These bedrock principles of law giving the Attorney General broad powers
to initiate and defend actions on behalf of the people of the Commonwealth
were overlooked by the majority in Wilkinson. Instead, Justice Leibson's
dissent correctly recognized :
74
75
76
See also Commonwealth ex rel. Hancock v. Paxton, 516 S .W.2d 865, 867 (Ky.
1974) (stating that the Attorney General "is possessed of all common law powers
and duties of the office except as modified by the Constitution or statutes .") .
Id. (citing 7 Am .Jur.2d Attorney General § 6) .
7 Am.Jur.2d Attorney General § 6 (2009) .
It is the Attorney General's responsibility to file suit to vindicate
public rights, as attorney for the people of the State of Kentucky .
The rights of the people, as the body politic, are identical to the
personal rights of a private individual, and enjoy at least the same,
if not more, standing to seek a declaratory judgment, and to seek
injunctive protection against injury. Under KRS 415.050, the
Attorney General may proceed directly against a usurper. Under
KRS 15 .020, the Attorney General is the state's chief law officer
and may "exercise all common law duties and authority pertaining
to the office of the Attorney General under the common law." It is
the personal right of the people as the body politic and not any
personal right of the person holding the office of Attorney General
that is being represented here. It is unreasonable to suggest that
because the person with the official responsibility to seek
protection on the people's behalf has no personal stake in the
outcome, there is no right of redress and no right to injunctive
relief against the Governor's usurpation of power, if such has
occurred . 77
Accordingly, we overrule Wilkinson to the extent that it holds that the Attorney
General must have a personal interest in the outcome of the litigation in order
to have standing to seek redress. Instead, we now hold that the Attorney
General has a sufficient personal right in these types of cases by virtue of the
office and the duties commensurate with that high ofiice .7 . 1herefore, we reject
the DOC's argument that the Attorney General lacked standing to bring the
Franklin Circuit Court action .
77
7s
Wilkinson, 828 S .W.2d at 618 (Leibson, J., dissenting) .
By overruling Wilkinson, we plow no new legal ground ; instead, we merely return
the law to what it rightfully was before the unfortunate language in Wilkinson.
See, e.g., Paxton, 516 S.W.2d at 868 ("We think that if the Constitution is
threatened by an item of legislation, the Attorney General may rise to the defense of
the Constitution by bringing a suit[] and is not required to wait until someone else
sues . . . . There is no question as to the right of the Attorney General to appear
and be heard in a suit brought by someone else in which the constitutionality of a
statute is involved . We hold that his constitutional, statutory[,] and common law
powers include the power to initiate a suit questioning the constitutionality of a
statute .") (citations omitted) .
2 . No Violation of Truth-in-Sentencing Laws .
In his motion for CR 65 .07 relief, the Attorney General adopts the
Pulaski Circuit Court's concern that retroactive application of HB 406 would
threaten the integrity of jury verdicts, presumably because of the so-called
"early release" of prisoners or parolees . We disagree.
First, the DOC has convincingly shown that many, if not all, of the
specific prisoners or parolees about whom the Attorney General complains
were not released "early ." More importantly, we reject any argument that
retroactive application of HB 406 undermines Kentucky's truth-in-sentencing
law.
KRS 532 .055 provides that evidence may be offered relevant to
sentencing, including information regarding minimum parole eligibility and the
minimum expiration of sentences . 79 Nothing in HB 406 affects KRS 532 .055 or
any related truth-in-sentencing laws . Retroactive application of HB 406 does
not change an offender's minimum parole eligibility date, nor does HB 406
change the method of calculating an offender's minimum or maximum
expiration of sentence date . The information provided to juries under
79
KRS 532 .055(2)(a) provides, in relevant part, that the Commonwealth may offer
evidence in the sentencing phase about "[m]inimum parole eligibility, prior
convictions of the defendant, both felony and misdemeanor[,]" and "[t]he maximum
expiration of sentence as determined by the division of probation and parole for all
such current and prior offenses . . . ."
We are aware that "though not raised by the parties, . . . we have struck down
another subsection of KRS 532 .055 as being an unconstitutional violation of the
separation of powers doctrine ." Torrence v. Commonwealth , 269 S .W.3d 842, 845
n . l l (Ky. 2008) . However, the constitutionality of the sections of KRS 532.055
germane to this case have not been challenged by the parties ; and we decline to do
so on our own motion . Id.
KRS 532 .055 is unaffected by HB 406, and we perceive no conflict. between a
retroactive application of HB 406 and Kentucky's truth-in-sentencing system.
3 . No Violation of Separation of Powers Doctrine.
Similarly, we find no separation of powers violation . The Attorney
General briefly contends that HB 406 violates Sections 27 and 28 of the
Kentucky Constitution, which contain the separation of powers clauses . 80 As
we understand it, the Attorney General contends that HB 406 impermissibly
interferes with the judicial branch's exclusive power to sentence criminal
defendants . We disagree .
Nothing in the language of HB 406 alters, amends, or affects the
sentences imposed upon criminal defendants in the courts of the
Commonwealth. All HB 406 does, relative to these appeals, is amend eligibility
for a final discharge from parole from a prisoner or parolee's maximum
expiration date to the minimum expiration date and provide that a prisoner or
parolee shall get credit against the sentence for time served on parole . Since
those are not judicial functions, HB 406 simply does not unconstitutionally
interfere with any function of the judicial branch . 81
80
Section 27 provides, in relevant part, that the powers of the government of this
Commonwealth "shall be divided into three distinct departments, and each of them
be confined to a separate body of magistracy, to wit: Those which are legislative, to
one; those which are executive, to another ; and those which are judicial, to
another ." Similarly, Section 28 provides that "[n]o 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 ."
81
See, e .g., Wilson v. Commonwealth, 141 Ky. 341, 132 S.W. 557, 561 (1910)
(construing then-current statutes granting the Board of Penitentiary
4 . No Violation of KRS 197 .045 .
KRS 197.045(1) provides, in relevant part, that "[ajny person convicted
and sentenced to a state penal institution may receive a credit on his sentence
of not exceeding ten (10) days for each month served, except as otherwise
provided in this section, to be determined by the department from the conduct
of the prisoner ." In a bare bones, one-paragraph-long argument, the Attorney
General contends "HB 406 abrogates the restrictions imposed by
KRS 197 .045(1), which limits `good time' to months `served .' Consequently,
under [HB 406,] offenders receive `street credit' and `good time' while on parole,
i.e., a double benefit ." We disagree .
Subsection four of Section I(5)(c) of FIB 406 requires that "the period of
time spent on parole shall count as a part of the prisoner's remaining
unexpired sentence when it is used to determine a parolee's eligibility for a final
discharge from parole as set out in subsection (5) of this section." Subsection
five of that same section provides, in relevant part, that "a final discharge shall
be issued when the prisoner has been out of prison on parole a sufficient
Commissioners the power to grant parole to not be unconstitutional because "the
powers confided to the board are not in any sense judicial, but purely ministerial
and similar in character to the power conferred upon the Governor of the state to
grant reprieves, commutations and pardons, after conviction. The power given the
board to shorten the term of imprisonment of persons confined in the penitentiary
is no more unconstitutional than the power to parole them, which it has long
exercised under a previous act of the Legislature ; nor is the power to lessen the
period of imprisonment or discharge the prisoner any more an interference with the
judicial functions of the court in which he was convicted than is the power to grant
a parole . In George, etc ., Com'rs . v. Lillard, Warden , 106 Ky. 820, 51 S. W. 793,
1011, [21 Ky.L.Rptr . 483 (1899)), we held that the parole law, a predecessor of the
act in question, was not unconstitutional, nor did it in any way encroach upon the
judicial functions of the courts, or the power of the Governor to pardon .") .
period of time to have been eligible for discharge from prison by minimum
expiration of sentence had he not been paroled . . . ." Taken together, those
two subsections mean that time spent on parole shall count as if it were time
served in prison in order for parolees to be discharged on their minimum
expiration dates. A minimum expiration date is a maximum expiration date
minus any good time credit. So if no good time credit were authorized, parolees
would not have minimum expiration dates, thereby rendering subsection five's
directive that parolees be finally discharged on their minimum expiration dates
to be either illogical or null. "We should not suppose that the legislature
intended to be intentionally illogical, nor should we interpret the statute to
bring about an obviously illogical result."82 Likewise, "[a]11 parts of the statute
must be given equal effect so that no part of the statute will become
meaningless or ineffectual ."s3
Finally, our conclusion would not be altered even if we accepted, solely
for the sake of argument, the Attorney General's contention that HB 406
violates KRS 197 .045(1) . Part III, Section 10 of HB 406 provides that "[a]11
statutes and portions of statutes in conflict with any of the provisions of this
Act, to the extent of the conflict, are suspended unless otherwise provided by
Floyd v. Gray, 657 S.W.2d 936, 941 (Ky. 1983) (Leibson, J., dissenting) .
83 Lewis, 189 S.W.3d at 92.
82
this Act." So KRS 197 .045(1) must yield to HB 406, even if we were to assume
a conflict between the two pieces of legislation .84
IV. CONCLUSION .
For the foregoing reasons, the Court ORDERS :
1)
The Attorney General's request for relief under CR 65 .07 in case
no . 2009-SC-000107-TG is denied;
2)
The DOC's petition for a writ of prohibition in case no . 2009-SC-
000252-TG is granted ; and the Pulaski Circuit Court is prohibited from
enforcing the permanent injunction, entered April 29, 2009, which purported
to prohibit the DOC from releasing from custody or parole supervision any
prisoner or parolee as a result of a retroactive application of HB 406;
3)
The stay issued by this Court on May 13, 2009, in the Pulaski
Circuit Court action (case no. 2009-SC-000252-TG) is lifted ; and
4)
These actions are remanded to the Franklin and --
i Circuit
Courts, respectively, for further action consistent with this Opinion and Order.
All sitting . Abramson, Cunningham, Noble, Schroder, and Venters, JJ .,
concur. Scott, J., concurs in result only.
SCOTT, J., CONCURRING IN RESULT ONLY: Because I believe the
Pulaski Circuit Court exceeded its jurisdiction in this instance by issuing a
84
Since it is not necessary for the proper operation of HB 406, we do not perceive
that it is necessary for the previously discussed laws regarding different treatment
regarding probation and parole given to sexual and violent offenders to have been
suspended during the effective period of HB 406.
statewide injunction against the Kentucky Department of Corrections, I can
only concur with the majority in result only.
As was clearly noted by the Commonwealth in its Petition for Writ:
The request for the injunction was made by Eddy Montgomery in
his official capacity as the duly elected Commonwealth's Attorney
for the 28th Judicial Circuit comprising Lincoln, Rockcastle and
Pulaski County . He was acting pursuant to KRS 15 .725 and
KRS 69 .010 . KRS 15 .725(1) specifically states that:
The Commonwealth's attorney shall attend each
Circuit Court held in his judicial circuit. He shall,
except as provided in KRS 15 .715 and KRS
Chapter 131, have the duty to prosecute all violations
whether by adults or by juveniles subject to the
jurisdiction of the Circuit Court of the criminal and
penal laws which are to be tried in the Circuit Court in
his judicial circuit. In addition, he shall have the
primary responsibility within his judicial circuit to
present evidence to the grand jury concerning such
violations .
KRS 69 .010(1) specifically states that:
Except as provided in subsection (2) of this section,
the Commonwealth's attorney shall, except in rrankiin
County, attend to all civil cases and proceedings in
which the Commonwealth is interested in the Circuit
Courts of his judicial circuit .
This limitation was recognized initially by the Pulaski Circuit Court in its
Temporary Injunction Order of September 15, 2008, thus, its effect was limited
to all prisoners from the 28th Judicial Circuit - Lincoln, Rockcastle and
Pulaski Counties . The limitation was ignored, however, in its permanent
injunction-which extended statewide.
I fear-by recognizing a statewide power of all the circuit courts in
circumstances similar to this-we diminish the power of the Attorney General,
dilute the jurisdiction of the Franklin Circuit Court, and encourage "circuit
shopping" on issues such as this that are critical to the governance of
Kentucky .
ENTERED : November 25, 2009.
COUNSEL FOR APPELLANT/ APPELLEE
COMMONWEALTH OF KENTUCKY, EX REL.
ATTORNEY GENERAL JACK CONWAY AND
COMMONWEALTH OF KENTUCKY, EX REL.
COMMONWEALTH'S ATTORNEY EDDY F.
MONTGOMERY (REAL PARTY IN INTEREST) :
Franklin Todd Lewis
Executive Director
Office of the Attorney General
Office of Special Prosecutions
1024 Capital Center Drive
Frankfort, Kentucky 40601
Jeanne Deborah Anderson
Executive Director
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
James Hays Lawson
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
Janet Marie Graham
Assistant Attorney General
Office of Attorney General
Room 118 Capitol Building
700 Capital Avenue
Frankfort, Kentucky 40601
Lisa Kathleen Lang
Assistant Attorney General
700 Capital Avenue, Suite 118
Frankfort, Kentucky 40601
Tad Thomas
Assistant Attorney General
Office of the Attorney General
700 Capital Avenue
Capitol Building, Suite 118
Frankfort, Kentucky 40601-3449
COUNSEL FOR APPELLEE/APPELLANT
LaDONNA H. THOMPSON (IN HER OFFICIAL
CAPACITY AS COMMISSIONER OF
KENTUCKY DEPARTMENT OF CORRECTIONS) :
Joseph Todd Henning
Justice and Public Safety Cabinet
Office of Legal Services
125 Holmes Street, 2nd Floor
Frankfort, Kentucky 40601
Vickie L. Wise
General Counsel
Justice and Public Safety Cabinet
Office of Legal Services
125 Holmes Street, Second Floor
Frankfort, Kentucky 40601
Wesley Warden Duke
Justice and Public Safety Cabinet
Office of Legal Services
125 Holmes Street
Frankfort, Kentucky 40601
William Henry Fogle
Deputy Executive Director
Office of Legal Services
Transporation Cabinet
200 Mero Street
Frankfort, Kentucky 40622
APPELLEE HONORABLE DAVID AUSTIN TAPP
(JUDGE, PULASKI CIRCUIT COURT) :
Judge David Austin Tapp
Pulaski Circuit Court
100 North Main Street
P. O . Box 1324
Somerset, Kentucky 42502
APPELLEE COMMONWEALTH'S ATTORNEY
EDDIE F. MONTGOMERY (REAL PARTY IN INTEREST) :
Eddy Frank Montgomery
Office of Commonwealth's Attorney
126 S. Main Street, Suite 110
Somerset, Kentucky 42501
ixyrrzttt C~Vurf of ~tufurhv
2009-SC-000107-TG
COMMONWEALTH OF KENTUCKY, EX REL.
ATTORNEY GENERAL JACK CONWAY
V.
ON APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
NO . 08-CI-01651
LADONNA H. THOMPSON (IN HER OFFICIAL
CAPACITY AS COMMISSIONER OF
KENTUCKY DEPARTMENT OF CORRECTIONS)
AND
APPELLEE
2009-SC-000252-TG
LADONNA H . THOMPSON (IN HER OFFICIAL
CAPACITY AS COMMISSIONER OF
KENTUCKY DEPARTMENT OF CORRECTIONS)
V.
APPELLANT
APPELLANT
ON APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
NO. 08-CI-01201
HONORABLE DAVID A . TAPP
(JUDGE, PULASKI CIRCUIT COURT)
AND COMMONWEALTH OF KENTUCKY, EX REL.
COMMONWEALTH'S ATTORNEY EDDY F. MONTGOMERY
(REAL PARTY IN INTEREST)
APPELLEES
ORDER OF CORRECTION
Appellant's motion to correct the Opinion and Order rendered in the
above-styled cases, is granted .
The Opinion and Order by Chief Justice Minton rendered on November
25, 2009, is hereby corrected by substitution of the attached page 41 in lieu of
the original page 41 of the opinion and order. The purpose of this Order of
Correction is to correct the title of counsel Vickie L . Wise and to correct the
address of William H . Fogle; neither change affects the holding of the original
Opinion and Order.
ENTERED: January 4, 2010 .
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