UNIVERSITY OF THE CUMBERLANDS V. REV. ALBERT M. PENNYBACKER, ET AL.
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2008-SC-000253-TG
(2008-CA-000643)
UNIVERSITY OF THE CUMBERLANDS
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APPELLANT
ON APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN
NO . 06-CI-00554
REV . ALBERT M. PENNYBACKER, ET AL.
APPELLEES
AND
2008-SC-000285-TG
(2008-CA-000682)
VERNIE MCGAHA, (SENATOR, IN HIS
OFFICIAL CAPACITY AS A MEMBER OF
THE KENTUCKY GENERAL ASSEMBLY), ET AL.
APPELLANTS
ON APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN
NO . 06-CI-00554
UNIVERSITY OF THE CUMBERLANDS, ET AL .
APPELLEES
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING
In the 2006 Budget Bill, the Kentucky General Assembly appropriated
$10 million for the construction of a pharmacy school building on the campus
of the University of the Cumberlands, a Baptist college located in Whitley
County. The legislature also appropriated $1 million for a Pharmacy
Scholarship Program to benefit pharmacy students "at a private four (4) year
institution of higher education with a main campus located in an Appalachian
Regional Commission county . . . ." KRS 164 .7901(1. ) . In a declaratory
judgment action challenging both appropriations, the Franklin Circuit Court
held that the Pharmacy School appropriation violated Sections 5 and 189 of the
Kentucky Constitution and the Pharmacy Scholarship Program violated Section
51 . This Court granted transfer of the case from the Court of Appeals
pursuant to Kentucky Rule of Civil Procedure 74.02 . Following review of the
record and applicable law, we affirm the circuit court's holding that the
Pharmacy School appropriation violates Section 189, which prohibits public
funding of "any church, sectarian or denominational school," and further find
the Pharmacy Scholarship Program violates Section 59, which prohibits special
legislation.
RELEVANT FACTS
The University of the Cumberlands, Inc . (UC), formerly Cumberland
College, is a private university founded by Baptists in 1887 and located in
Williamsburg, Whitley County, Kentucky . UC is accredited by the Commission
on Colleges of the Southern Association of Colleges and Schools and is
affiliated with both the Southern Baptist Convention and the Kentucky Baptist
Convention. According to UC, it currently provides approximately 1700
students from "diverse religious backgrounds, a liberal arts education enriched
with Christian values ." Under a 1986 Covenant. Agreement between UC and
the Kentucky Baptist Convention, as well as the 2005 Restated Articles of
Incorporation for UC, if the corporate entity ever dissolves all assets are to be
distributed to the Kentucky Baptist Convention .
On April 11, 2006, in its biennial budget bill, the General Assembly
approved $10 million in public bond financing for the construction of a
pharmacy school on the UC campus . HB 380, 2006 Ky. Acts 252 . The bonds
are to be sold by the Kentucky Infrastructure Authority to private investors
with the principal on the bonds paid from coal severance taxes levied pursuant
to KRS 143 .020 and the interest paid from the General Fund.
HB 380 also included a $1 million allocation from the General Fund to a
Pharmacy Scholarship Program. That provision, codified at KRS 164 .7901
provides in subsection (1)
It is the intent of the General Assembly to establish a
scholarship program to provide eligible Kentucky
students the opportunity to attend an accredited
school of pharmacy at a private four (4) year
institution of higher education with a main campus
located in an Appalachian Regional Commission
county in the Commonwealth and become certified
pharmacists in the Commonwealth .
Subsection 3 provides that scholarship recipients must be Kentucky residents
enrolled full-time in a Kentucky pharmacy school and must provide one year of
service as a pharmacist in Kentucky for each year the scholarship is awarded.
The scholarship amount is set forth in subsection (4) which provides:
The amount of the scholarship awarded to an eligible
student by the authority shall be equal to the
difference between:
(a)
(b)
The amount charged for in-state tuition at the
University of Kentucky College of Pharmacy; and
The prevailing amount charged for tuition at the
institution in which the student is enrolled .
After the initial funding, the "special trust fund" necessary to sustain the
Scholarship Program is to be generated from coal severance tax revenues levied
under KRS 143 .020. KRS 164 .790 1 (11) provides that up to 4% of the coal
severance tax revenues collected annually "shall be transferred to the special
trust fund . . . in an amount that permits each Kentucky resident eligible"
under the statute to receive a scholarship award, as provided in subsection (4),
i.e., the difference between UK Pharmacy School tuition and the institution's
tuition.
After Governor Ernie L . Fletcher declined to veto the aforementioned
appropriations, Appellee Christina Gilgor filed a declaratory judgment action
against the Governor on April 25, 2006 challenging both the Pharmacy School
and the Pharmacy Scholarship Program appropriations as violating specific
provisions of the Kentucky Constitution . Subsequently, through amended
complaints, the Kentucky Fairness Alliance, the Jefferson County Teachers
Association and two taxpayers, Rev. Albert M. Pennybacker and Rev. Dr . Paul
D. Simmons, also became plaintiffs . The Franklin Circuit Court later allowed
UC and a group of thirteen members of the General Assembly to intervene as
defendants in support of the challenged legislation . For clarity, those
challenging the legislation are hereafter referred to as "Plaintiffs" and those
defending it are collectively referred to as "Defendants" .
Twenty months after HB 380 passed, on December 10, 2007, UC and the
Governor's Office for Local Development entered into a Memorandum of
Understanding (MOU) designed to address some of the issues raised in the
declaratory judgment action. UC committed in the MOU inter alia that no
portion of the funds would be "used for any church, sectarian or
denominational purpose" and that if the building ever ceased to be used as a
pharmacy school it would revert to Whitley County.
Meanwhile, UC had moved for summary judgment in October, 2007 and
Plaintiffs had filed a response and counter-motion for summary judgment in
November. Following additional briefing and oral arguments, the circuit court
entered its Judgment and Order on March 6, 2008 granting Plaintiffs' crossmotion for summary judgment and declaring both appropriations
unconstitutional. UC and the intervening legislators filed timely appeals and
this Court granted transfer of those appeals from the Court of Appeals
pursuant to CR 74 .02 .
ANALYSIS
I . The Pharmacy School Appropriation for UC Violates Section 189 of the
Kentucky Constitution .
Kentucky's fourth and present Constitution, adopted in 1891, includes in
Section 5 a "Right of religious freedom ." In pertinent part, the provision states
that "no preference shall ever be given by law to any religious sect, society or
denomination; . . . . .. 1 In the sections of the Constitution pertaining to
"Education" the drafters addressed religious schools in Section 189 which
states : "No portion of any fund or tax now existing, or that may hereafter be
raised or levied for educational purposes, shall be appropriated to, or used by,
or in aid of, any church, sectarian or denominational school ." These two
specific provisions along with Section 171, which provides in relevant part that
"taxes shall be levied and collected for public purposes only," form the basis of
Plaintiffs' challenge to the Pharmacy School appropriation . Because we find
the appropriation violative of Section 189, we need not address the other
constitutional infirmities they allege . 2
A. Section 189 Prohibits Appropriations of Public Funds to Religious
Schools.
Beginning with the language of Section 189, and more specifically the
closing phrase of the provision, it is apparent that UC is a "church, sectarian or
denominational school ." From its founding by the Mt . Zion Association of
Baptists in September 1887 through its present day Covenant Agreement with
the Kentucky Baptist Convention (KBC), UC has been supported by members
2
"No preference shall ever be given by law to any religious sect, society or
denomination ; nor to any particular creed, mode of worship or system of
ecclesiastical polity ; nor shall any person be compelled to attend any place of
worship, to contribute to the erection or maintenance of any such place, or to the
salary or support to any minister of religion ; nor shall any man be compelled to
send his child to any school to which he may be conscientiously opposed ; and the
civil rights, privileges or capacities of no person shall be taken away, or in anywise
diminished or enlarged, on account of his belief or disbelief of any religious tenet,
dogma or teaching . No human authority shall, in any case whatever, control or
interfere with the rights of conscience ."
Plaintiffs also alleged the Pharmacy School appropriation violated Sections 2, 3 and
184 of the Kentucky Constitution.
and churches of the Baptist faith . According to the Covenant Agreement,
KBC's primary purpose in supporting UC is "to advance the Kingdom of God in
the area of Christian higher education . Such purpose should at all times be
recognizable within the ministry of Cumberland College [now UCJ ." Although
UC agreed in the December 2007 Memorandum of Understanding not to use
any of the pharmacy building funds for "church, sectarian or denominational"
purposes, this MOU cannot change the character of the institution itself. It is
precisely the type of school referenced in Section 189, and clearly state funds
have been "appropriated to, or [will be] used by, or in aid of' the school . Thus,
our focus turns to the opening phrases of the section .
Section 189 begins with the following language : "[n]o portion of any fund
or tax now existing, or that may hereafter be raised or levied for educational
purposes . . . ." The phrase "for educational purposes" plainly modifies "raised
or levied" so the section literally focuses on the purpose for which the funds or
taxes were collected . However, given Kentucky jurisprudence, Defendants have
couched their primary defense of the pharmacy school in terms of whether the
appropriation itself was for an educational purpose . Because this construction
of the section has some basis in precedent, it is necessary to consider both the
purpose for which the funds were appropriated and the purpose for which the
funds were "raised or levied" in the first instance . We begin with the former
construction that focuses on the purpose for which the funds will be used .
Relying on Kentucky Building Comm. v. Effron, 310 Ky. 355, 220 S .W.2d
836 (1949), Defendants insist the funds to construct the Pharmacy School
building were appropriated for a "health and welfare purpose" rather than
"educational purposes ." Specifically, they maintain that the shortage of
pharmacists in Kentucky generally and in the Appalachian area particularly
prompted the legislature to act.3 Assuming this legislative intent, this
argument begs the question - how can an appropriation to construct a
pharmacy school not entail an educational purpose? What could the
construction of a building possibly accomplish in addressing the alleged
shortage of pharmacists in the Commonwealth unless faculty are retained and
students are then recruited and educated in a manner that will enable them to
pass the requisite professional licensing examinations? The $10 million
appropriation is for bricks and mortar but its ultimate purpose is to provide a
venue for the education of pharmacy students .
Education was not an issue in Effron, supra, the case Defendants
primarily rely upon . To take advantage of federal funding for the construction
of public and nonprofit hospitals, the Kentucky General Assembly appropriated
funds to hospitals associated with the Episcopal Church and the Roman
Catholic Church. The hospitals served the health care needs of Kentuckians
and, significantly, had no educational mission . This Court's predecessor found
the appropriations constitutional noting "[t]he hospitals are open to the public
of all creeds and faiths - and even to those who profess no certain religious
3
Plaintiffs argue that the record is void of any legislative or executive branch
consideration of a shortage of pharmacists or pharmacy schools in Kentucky
generally or the Appalachian region specifically prior to the passage of HB 380 .
While there may be merit to this point, it has no bearing on our disposition of the
constitutional issues before this Court .
belief. Religion is not taught in these hospitals nor is any one sect given
preference over another." 220 S .W. 2d at 838. The Effron Court contrasted the
case before it with prior cases involving appropriations for parochial school
students noting specifically that "[section] 189 of our Constitution forbids the
use of any taxes levied for educational purposes from being appropriated in aid
of any private, sectarian or denominational schools." Id.
By contrast, education was at issue in Fannin v. Williams, 655 S.W .2d
480 (Ky. 1983), a case in which this Court invalidated a statute that supplied
textbooks to children attending nonpublic schools . In Fannin, this Court
concluded that the funds were not being spent for "public purposes", as
required by Section 171 of the Kentucky Constitution, and that because it was
impossible to classify the textbooks "as anything but educational" the
appropriation violated Section 189 . 655 S . W.2d at 482-84 . As to Section 171,
the Court noted that "nonpublic schools are open to selected people in the
state, as contrasted with public schools which are open to `all people in the
state' . Id. at 482 . The Fannin Court addressed the intersection of public
purpose and education, acknowledging that education is definitely a public
purpose but concluding that the Kentucky Constitution is unyielding as to
where public funds can be used for educational purposes .
In sum, the Kentucky Constitution contemplates
that public funds shall be expended for public
education . The Commonwealth is obliged to furnish
every child in this state an education in the public
schools, but it is constitutionally proscribed from
providing aid to furnish a private education. Pollitt v.
Lewis, 269 Ky. 680, 108 S . W.2d 671 (1937) . We
cannot sell the people of Kentucky a mule and call it a
horse, even if we believe the public needs a mule.
Unlike the statute extending transportation to
children in nonpublic schools, it is impossible to
classify textbooks as anything but educational . As
such the statute must meet the constitutional
limitations of those sections of the Constitution
covering "Education ."
One can argue, quite reasonably, that this statute
(and any statute) furthering education is of public
benefit, whether selective or not. Unfortunately, this
approach begs the question, because the Constitution
establishes a public school system and limits spending
money for education to spending it in public schools .
655 S .W.2d at 484 . Just as the textbooks in Fannin were unquestionably
educational, a pharmacy school is unquestionably educational. As the trial
court concluded, Fannin, not Effron, is the controlling precedent and the
Pharmacy School appropriation is patently "for educational purposes ."
Defendants also direct this Court's attention to an earlier case involving
appropriations to nonpublic schools as indicative of the propriety of allowing
public funds to private schools if a public purpose is evident. In Butler v.
United Cerebral Palsy of N. Ky., Inc., 352 S .W.2d 203 (Ky . 1961), with then-
Judge, later Chief Justice, Palmore writing, the predecessor to this Court
upheld a statute authorizing the payment of public funds to private institutions
for the education of "exceptional children ." The institutions involved in that
case were schools operated by "nonsectarian charities", but the statute's use of
the term "private schools" raised the spectre of violation of Section 189 .
We come lastly to the question of whether the act
permits public funds to be used by sectarian or
denominational schools in violation of Const. § 189 . It
10
so happens that the schools involved in this lawsuit
are nonsectarian charities, but the term `private
schools,' of course, admits of no such limitation .
Literally it would appear to mean any school outside
the common school system. However, we may
properly indulge the presumption that the legislature
did not intend to include schools to which the
payments could not legally be made . It is not
unreasonable to presume, for example, that the term
was not meant to include schools not within the state,
and it is equally reasonable to infer that it does not
include schools that give sectarian instruction or have
any denominational requirements with respect to their
teachers or pupils .
352 S .W.2d at 208-09 . Thus, Butler does not support Defendants' contention
but quite squarely rejects it: appropriations to private schools can be
constitutional but not if the school is a "church, sectarian or denominational
school ."
Defendants fare no better if we focus on the purpose for which the funds
were raised. Butler merits closer examination because it identifies Kentucky
precedent wherein the emphasis, at least in the "common school"4 context,
shifted from the purpose for which state funds were raised to the purpose for
which the funds were appropriated or used . In fact, Butler, supra, confronted
the closely related issue of the reference in Section 184 of the Kentucky
Constitution to monies "raised or collected for education ." That Court noted
that in Pollitt v. Lewis, 269 Ky. 680, 108 S .W .2d 671, 672 (1937), the Court
held that the restriction was on the "legislative power to expend money for
education other than in the common schools" and not whether the funds were
A "common school" is now defined in KRS 158.030 as "an elementary or secondary
school of the state supported in whole or in part by public taxation ."
expressly raised for education . 352 S .W.2d at 207 (emphasis in original) .
Similarly, in Talbott v. Ky. State Bd. of Education, 244 Ky. 826, 52 S .W.2d 727
(1932), Kentucky's High Court held that "any funds raised by taxation become
a part of the school fund as soon as they are appropriated for school purposes ."
352 S .W.2d at 207 . As Butler notes, however, there is dictum in at least one
case to the contrary. Hodgkin v. Bd. for Louisville & Jefferson Co. Children's
Home, 242 S .W.2d 1008 (Ky. 1951) (common school funds cannot be spent
outside common school system but other state funds can be so spent .) The
Butler Court did not have to resolve this issue because the nonsectarian
schools in that case were not prohibited recipients of public funds . By
contrast, we must address the comparable language in Section 189 regarding
funds "raised or levied for educational purposes ." Kentucky constitutional
history supports the conclusion that Section 189 was specifically directed at
postsecondary or higher education and, further, that the intent was to prohibit
all public funding of sectarian or religious colleges .
Section 189 was adopted on March 11, 1890, during the 1890
Constitutional Convention, with virtually no discussion immediately preceding
the vote. Official Report of the Proceedings and Debates in the Convention
Assembled at Frankfort on the Eighth Day of September, 1890, to Adopt, Amend
or Change the Constitution of the State of Kentucky /hereafter "Official Report of
the 1890 Convention"] at 4606-07 . However, the delegates had debated for two
full days the contents of the "Education" portion of the Kentucky Constitution
set forth in Sections 183-189 . Id. at 4452-4606 . There was much debate
12
about what "common schools" encompassed and what, if any, role the state
should play in providing higher education . Some delegates opposed any public
support of schools with curricula that went beyond the rudiments of reading,
writing and arithmetic, advocating that all higher education be left to sectarian
schools or other private institutions . , Several delegates supported compulsory
)
education for younger children but mandatory attendance at common schools
did not find its way into the Kentucky Constitution . The wide-ranging debates
addressed inter alia teacher education, parity among schools across the
Commonwealth, the education of black schoolchildren, the length of the school
year, nepotism in school hiring, and state financing of education at all levels.
To gain insight into the meaning of Section 189, it is necessary to
understand Section 184, the provision establishing the "common school" fund
which also was adopted on March 11, 1890. Official Report of the 1890
Convention at 4598-99 . Section 184 identified the then existing bonds and
stocks which would comprise the "common school" fund along with interest
and dividends therefrom as well as "any sum which may be produced by
taxation or otherwise for purposes of common school education." The section
ends as follows :
No sum shall be raised or collected for education other
than in common schools until the question of taxation
is submitted to the legal voters, and the majority of the
5
Delegate L.W. Lassing of Boone County passionately decried state involvement in
higher education noting that the farmers in agrarian Kentucky did not "need to be
philosophers to carry out their mission in life ." Official Report of the 1890
Convention at 4506. He also advocated a "rudimental common school education"
and threatened to "immediately emigrate" from Kentucky if compulsory education
were ever adopted . Id. at 4507 .
13
votes cast at said election shall be in favor of such
taxation : Provided, The tax now imposed for
educational purposes, and for the endowment and
maintenance of the Agricultural and Mechanical
College, shall remain until changed by law .
The Agricultural and Mechanical College referred to in the closing
sentence, now the University of Kentucky, was at the center of the fierce debate
about state support of higher education . Several delegates, but most notably
Judge William M. Beckner of Winchester in Clark County, the primary author
of Section 189, urged continued state support of this fledgling institution for
which the federal government had made an initial grant of 330,000 acres of
land. Kentucky had sold off much of the land grant to private purchasers and
had done little beyond enacting a meager tax to support the AB,M College.6
Judge Beckner noted that sectarian influences were seeking to undermine
continued support by eliminating the A&M College tax, leaving the future of
higher education in the Commonwealth to those institutions founded or
controlled by churches and religious groups .? Judge Beckner was successful
in turning back those who wished to remove the Commonwealth from the
6
"In 1880 the General Assembly, realizing that the State had done practically
nothing for the institution, that it had wasted its endowment in making such a
hasty sale of its lands, that the people were interested in having a school directly
under State control, non-sectarian in character, admitting to its halls both males
and females, and encouraging the young of the humbler walks of life to seek for
higher education on more practical lines than they could in the ordinary college,
voted for its use an annual tax of one-half of one per cent on each $100 of value of
the property in the State liable to taxation for State revenue. This produces an
additional income of about $24,000 per year, and, added to the interest received on
the fund arising from the sale of lands, makes a foundation for an institution
worthy of Kentucky." Official Report of the 1890 Convention at 4473 . (Remarks of
Judge William H . Beckner) .
See Judge Beckner's remarks infra at p . 24 .
14
business of higher education . In lengthy remarks regarding his respect for
religiously-affiliated colleges (which he and his children had attended), he
noted bluntly : "The location and endowment of these institutions is a matter
that concerns the church ." Official Report of the 1890 Convention at 4543. In
the end, Section 184 of the Kentucky Constitution preserved both the integrity
of the common school fund and the taxes used to support it as well as the
separate tax for the A8vM College .
Thus when the delegates to the 1890 Constitutional Convention adopted
Section 189 the reference to "educational purposes" included not only primary
and secondary education but most assuredly postsecondary education .
Indeed, the ban on appropriations to "church, sectarian and denominational
schools" was most particularly directed at those then-existing colleges and
universities operated by various religious organizations . In fact, all of the
references by constitutional convention delegates to specific sectarian or
denominational schools arose in the context of the debate over higher
education, not primary and secondary schools.9 Equally significant, the
"fund[s] or tax[es]" that were not to be appropriated to religious schools were all
of the monies then being raised or levied for educational purposes .
s One of Judge Beckner's allies, Delegate H.H. Smith of Hardin County, noted at one
point that by 1890 "the school tax is equal to one-half of the amount of taxes
collected by the Commonwealth ." Official Report ofthe 1890 Convention at 4513.
9 Centre College figured
prominently in the debates but there were also references to
Georgetown College, the Wesleyan College at Winchester and other religiously
affiliated colleges .
15
The Commonwealth's commitment to public institutions of higher
learning has grown dramatically over the ensuing 120 years") but. there are no
longer specific taxes "raised or levied" for the University of Kentucky or its
sister state universities . In fact, KRS 47 .010 provides, with a few exceptions
regarding primarily taxes directed to the state road fund, "all state revenue
shall be credited to the general fund." In KRS 48.010 (13)(a) for "Budget"
purposes, the "General Fund" is "all moneys, not otherwise restricted, available
for the general operations of state government ." KRS 48 .010(13)0 defines a
"Restricted Fund" as "budget unit receipts restricted as to purpose by statute ."
Presently, postsecondary education in Kentucky is funded primarily by the
General Fund and the institutions' own receipts such as fees and tuition, i.e.,
Restricted Funds . In the 2008-2009 Operating Budget, for example,
Postsecondary Education received a total of $5,239,769,000 consisting of some
monies from Federal Funds and a special General Fund created by the Tobacco
Settlement but primarily appropriations (approximately $4.5 billion) from the
aforementioned General Fund and Restricted Funds . See Michie's Kentucky
Revised Statutes, 2008 Cumulative Supp. at Appendix A, State/ Executive
Branch Budget ("2008 State/Executive Branch Budget") at p. 88 .
None of these funds (or for that matter any of the approximately $3.85
billion in General Fund appropriations allocated to the Department of
Education for primary and secondary education) were taxes specifically "raised
or levied" for educational purposes . 2008 State/Executive Branch Budget at p .
to
See generally KRS Chapter 164.
16
54 . Education is now a firmly entrenched part of the "general operations of
state government" and public educational institutions rely on revenues from
the General Fund . Notably, the debt service for bonds issued for Eastern
Kentucky University, Kentucky State University, the Universities of Louisville
and Kentucky, Murray State University, Western Kentucky University, and all
other Kentucky public universities is provided by General Fund monies . Id. at
pp. 84-87. Thus, Kentucky public universities rely on the same source of debt
service for their bonds, i.e., the General Fund, as UC would rely on for the
Pharmacy School bonds . In short, while the tax structure in late nineteenth
century Kentucky may have involved taxes levied or funds specifically raised
for the A8,M College, twenty-first century Kentucky tax law does not draw such
distinctions . Instead, all revenue raised or taxes levied by the Commonwealth
may fairly be said to have been collected for state government purposes and
one leading purpose is indisputably public education at the primary, secondary
and postsecondary levels. Under these circumstances, Section 189 is properly
read to prohibit appropriation of any public funds to religious schools .
Just as General Fund monies cannot be appropriated to pay the interest
on the Pharmacy School bonds without running afoul of Section 189 of the
Kentucky Constitution, the same conclusion must be reached as to the coal
severance tax revenues used to repay the principal on those bonds. KRS
143 .020 imposes the so-called coal severance tax on the "privilege of severing
and processing coal." Pursuant to KRS 143.090, a portion of the tax revenues
is designated for the road fund and a portion for the Office of Energy Policy
17
(OEP) . All receipts in excess of the amounts statutorily required for the road
fund and OEP are required to be deposited "to the credit of the general fund ."
KRS 143 .090(4) . Thus, the coal severance tax surplus monies that would be
used to repay the principal on the bonds for the Pharmacy School (and to
create the Pharmacy Scholarship Program as discussed infra) are in fact
General Fund monies or, at the very least, monies that were required to be
deposited to the General Fund for state government purposes . Simply put,
designating the coal severance tax as the primary source of the bond funding
does not avoid the Pharmacy School appropriation's conflict with Section 189 .
It is all public money which cannot be constitutionally directed to UC .
In sum, the Pharmacy School appropriation clearly violates Section 189
of the Kentucky Constitution because it is an allocation of public funds for
educational purposes to a "church, sectarian or denominational school ."
Whether the focus is on the purpose for which the funds were appropriated
(pharmacy education) or the purpose for which the funds were "raised or
levied" (the General Fund which supports the operations of state government
including public education), the result is the same. The Pharmacy School
appropriation is unconstitutional and that portion of HB 380 cannot be
implemented .
B. Section 189 Does Not Offend the First Amendment of the U.S.
Constitution.
Taking a different tack, Defendants also challenge any construction of
Section 189 that would prohibit funding of the Pharmacy School on the
grounds that such construction would violate the First Amendment of the
18
United States Constitution . Specifically, they contend that it would violate the
Free Exercise Clause of that amendment as well as the Free Speech Clause . In
fact, Section 189, as construed today and over the past 120 years, does not
violate the First Amendment of our nation's Constitution in any discernible
way.
The First Amendment provides : "Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof."' I As the
United States Supreme Court noted in Locke v. Davey, 540 U.S . 712, 718
(2004), the two clauses in that amendment, the Establishment Clause and the
Free Exercise Clause, "are frequently in tension." Locke involved a challenge by
a college student, Davey, who was not allowed to use a state-funded
scholarship if he pursued a degree in devotional theology. Relevant language
in Article I, section 11 of the Washington Constitution included the following:
"No public money or property shall be appropriated for or applied to any
religious worship, exercise or instruction, or the support of any religious
establishment." In Locke, the U.S . Supreme Court held the Free Exercise
Clause did not prohibit the State of Washington denying scholarship funds to
theology degree students on state constitutional grounds. Noting the right of
the states to erect a stronger wall between church and state than even that
required by the U .S . Constitution, Justice Rehnquist wrote:
l i The same restrictions have been held to apply to state legislatures by virtue the
of
Fourteenth Amendment to the United States Constitution. Cantwell v. State of
Connecticut, 310 U.S. 296 (1940) .
19
Even though the differently worded Washington
Constitution draws a more stringent line than that
drawn by the United States Constitution, the interest
it seeks to further is scarcely novel . In fact, we can
think of few areas in which a State's antiestablishment
interests come more into play. Since the founding of
our country, there have been popular uprisings
against procuring taxpayer funds to support church
leaders, which was one of the hallmarks of an
"established" religion .
Most States that sought to avoid an establishment of
religion around the time of the founding placed in their
constitutions formal prohibitions against using tax
funds to support the ministry.
540 U.S . at 722-23 (citations and footnotes omitted) . (One of the state
constitutions cited was the 1792 Kentucky Constitution which contained such
a provision in Art. XII, Section 3 .) In upholding application of the prohibited
spending language in the Washington Constitution, the Court specifically noted
"Washington has been solicitous in ensuring that its constitution is not hostile
toward religion ." Id. at 724, n . 8 .
Just as there are strong state "antiestablishment interests" in formal
prohibitions on using tax funds to support the ministry there are strong state
antiestablishment interests in prohibitions on the support of religious
establishments such as the "church, sectarian or denominational schools"
referenced in Section 189 of our Constitution . Locke v. Davey firmly supports
our conclusion that the Kentucky Constitution does not contravene the Free
Exercise Clause when it prohibits appropriations of public tax monies to
religious schools . Moreover, it bears noting that Kentucky constitutional law,
like Washington's, has not been hostile toward religion . Indeed, Effron, supra,
20
reflects the Commonwealth's recognition of the constitutionality of funding
religiously-affiliated hospitals where those institutions will provide needed
public health services to all, regardless of their religious beliefs or lack thereof,
and will not engage in any form of education . The drafters of the Kentucky
Constitution drew the line, however, at funds which support religious schools,
an inevitable consequence of the Pharmacy School appropriation which would
add a $10 million building to UC's campus and allow it to expand its student
body. As in Locke v. Davey, any tension between the Establishment Clause
and the Free Exercise Clause in this case must be resolved in favor of the
state's legitimate and fully constitutional antiestablishment concerns .
Appellants also maintain that construing Section 189 as prohibiting the
Pharmacy School appropriation constitutes "viewpoint discrimination" in
violation of the Free Speech Clause of the First Amendment. This same
argument was roundly rejected in Locke v. Davey:
Davey contends that the Promise Scholarship Program
is an unconstitutional viewpoint restriction on speech.
But the Promise Scholarship Program is not a forum
for speech . The purpose of the Promise Scholarship
Program is to assist students from low- and middleincome families with the cost of postsecondary
education, not to "`encourage a diversity of views from
private speakers .' Our cases dealing with speech
forums are simply inapplicable .
540 U.S . at 720 n .3 (citations omitted) . Similarly, there is no speech forum at
issue in this case where Defendants allege discrimination in the expenditure of
public funds for education. More recently, in Pleasant Grove City, Utah v.
Summum, -U .S .-, 129 S . Ct. 1125, 1137 (2009), a case involving the erection
21
of monuments with religious messages in a city-owned park, the court noted
"[t]he forum doctrine has been applied in situations in which governmentowned property or a government program was capable of accommodating a
large number of public speakers without defeating the essential function of the
land or the program." (emphasis supplied) . Citing United States v. American
Library Association, Inc., 539 U .S . 194, 205 (2003), a case holding that internet
access from computers in public libraries was not a public forum, the Court in
Pleasant Grove said succinctly "public forum principles . . . are out of place in
the context of this case." 129 S . Ct. at 1137 . The same can be said here, albeit
for different reasons. There is no unconstitutional viewpoint restriction on
speech simply because a state constitution prohibits appropriations of public
funds to religious schools .
C. Section 189 is Not an Anti-Catholic Blaine Amendment and Does
Not Violate the Equal Protection Clause or the Free Exercise Clause.
Finally, Section 189 is assailed as Kentucky's own "Blaine Amendment"
borne of the rampant anti-Catholicism that affected the country in the latterhalf of the 19th century. Based on this premise, Defendants and amicus
curiae, The Becket Fund for Religious Liberty, contend Section 189 violates the
Equal Protection Clause and Free Exercise Clause of the U .S. Constitution . We
reject their premise and thus the conclusion .
As noted in Mitchell v. Helms, 530 U.S . 793, 828 (2000), the U .S .
Congress considered, and nearly passed in the 1870's, the Blaine Amendment,
a proposed amendment to the United States Constitution which would have
expressly banned any aid to sectarian institutions . The amendment "arose at a
time of pervasive hostility to the Catholic church and to Catholics in
general . . . ." Id. While Kentucky, regrettably, was not immune to this
virulent sentiment, as evidenced most notably by the Bloody Monday riots in
Louisville on August 6, 1855,12 there is no basis for labeling Section 1.89 a
Blaine Amendment in light of the Official Report of the 1890 Convention . None
of the allegedly telling statements cited, including a quote from Andrew
Carnegie and a reference to Martin Luther's support of public schools, is
supportive of this argument . 13 By contrast the only reference to the Catholic
faith came from Judge Beckner, the author of Section 189, which was an
amendment to the initial report rendered by the Committee on Education .
Recognizing the importance of religious colleges but insisting on the
12
13
As noted in The Kentucky Encyclopedia published by the University Press of
Kentucky, the Know-Nothing party, founded in the mid-1800s, rose to power in
Kentucky on a strong anti-Irish and anti-German immigrant platform which
included obvious anti-Catholic hostility . August 6, 1855 was an Election Day that
resulted in the deaths of twenty-two people in Louisville, mostly Irish or German
Catholic immigrants, who were the victims of a vicious mob . The city was
"chastened" by the violence and although the Know-Nothing slate swept Louisville
and Jefferson County that day, the party rapidly fell by the wayside. By 1857, the
Know-Nothing party headquarters on Jefferson Street had been turned into a
German theatre. The Civil War washed "the last vestiges of the Know-Nothing
phenomenon from Louisville and Jefferson County." www.kyenc.or at "Bloody
Monday."
The "offending" statement from Martin Luther followed a quote wherein Luther
stated that education was "not only the duty of the parents, but also of the State."
Judge Beckner then said "The apostle of an open Bible was the first prophet of a
State school." Official Report ofthe 1890 Convention at 4460. Shortly thereafter
Becker quoted Andrew Carnegie as follows: "The public school . . . is the mill into
whose hopper may be poured Germans, Irishmen, Italians, Englishmen,
Scandinavians, or the representatives of any other race, and yet may be relied on to
turn out Americans, patriotic in purpose and intelligent in their devotion to our
institutions ." Id. at 4461 .
23
Commonwealth's obligation to provide non-denominational higher education,
he stated :
The denominational colleges have done great work,
and have turned out great men . That will not be
denied. They are usually patronized by those who
entertain the peculiar views they represent . A
Presbyterian prefers to have his boy go to a
Presbyterian College . The Methodist prefers to have
his go to a Methodist College, and the Catholic prefers
to have his boy go to a Catholic College. That is a
matter of preference, and the denominational colleges
are founded for the benefit of those who hold to these
respective views ; but there is a large class who prefer
not to have their boys educated at a denominational
college . Then there are many of those who prefer not
to have their children brought up at the particular
place where the college may be located, or to subject
them to the particular views maintained in other
respects by those in charge of that college . They may
not hold to something that the college represents, and
they do not choose to send their children to it, but
whether that be so or not, it is the duty of the State to
furnish to its children facilities for high education . . . .
What I have criticized was not the education received
at the [sectarian] colleges, nor the fact that church
people maintain these colleges . . . what I do object to
is, that any of these officers should come here and
attempt to destroy another seat of learning in the State
. . . to destroy competition . . . .
Official Report of the 1890 Convention at 4544-4545 . Immediately prior, Judge
Beckner had noted that he himself had attended a denominational college, had
sent his children to such schools and had supported the religious colleges of
his own Presbyterian denomination and other denominations but, again, as he
bluntly put it, "The location and endowment of these institutions is a matter
that concerns the church ." Having reviewed the 1890 Constitutional Debates,
we conclude that Section 189 was clearly borne of the framers desire to avoid
24
state support of all religious institutions' schools not of any animosity toward
Catholics or any other specific religion .
In summary, the UC Pharmacy School appropriation violates Section 189
of the Kentucky Constitution . If Kentucky needs to expand the opportunities
for pharmacy school education within the Commonwealth, the Kentucky
General Assembly may most certainly address that pressing public need but
not by appropriating public funds to an educational institution that is
religiously affiliated .
II. The Pharmacy Scholarship Program is Special Legislation that
Contravenes Section 59 of the Kentucky Constitution.
While the Pharmacy School provision in HB 380 was an appropriation
directly to UC, the Pharmacy Scholarship Program codified at KRS 164.7901
provides scholarship monies to individual students who then direct their
scholarship awards to the pharmacy school they are attending. However, the
statute can only be read as funding scholarships for students attending the
planned UC Pharmacy School. 14 As such, it is special legislation in
contravention of Section 59 of the Kentucky Constitution . 15
14
15
We recognize that the unconstitutionality of the Pharmacy School appropriation
may well render moot the constitutional challenge to the Pharmacy Scholarship
Program. In the event private funds could be secured to construct the UC
Pharmacy School, however, the issue is still viable .
The trial court acknowledged that the Pharmacy Scholarship Program would be
special legislation if KRS 164 .7901(1) were read as a restriction on who could
receive scholarship funds. That court then proceeded to conclude that the
subsection was "advisory only" and to find the statute unconstitutional under
Section 51, a provision regarding the title of legislation and the revision and
reenactment of statutes . We do not deem KRS 164 .7901(1) to be advisory but
rather an integral part of the statute . Finding the statute unconstitutional a special
25
Subsection (1) of KRS 164 .7901 specifically notes the General Assembly's
intent "to establish a scholarship program to provide eligible Kentucky
students the opportunity to attend an accredited school of pharmacy at a
private four (4) year institution of higher education with a main campus located
in an Appalachian Regional Commission county in the Commonwealth . . . ."
No party to this litigation has questioned that the sole institution which would
fit that description is UC, providing the Pharmacy School is built.
Nevertheless, Defendants insist that this Court should look past the legislative
intent stated boldly in subsection (1) and focus instead on the scholarship
eligibility criteria stated in subsection (3) . That subsection provides that
scholarships are available to individuals who (a) are Kentucky residents
(provided they are also United States citizens) ; (b) are enrolled or accepted to a
full-time pharmacy program in the Commonwealth ; (c) will serve one year as a
pharmacist in Kentucky for each year scholarship money is received; and (d)
sign a promissory note to repay the scholarship award if they fail to render the
requisite service . In their brief, Defendants suggest that the scholarship money
could be directed to the UK College of Pharmacy if a recipient so desired.
However, a full reading of the statute itself refutes that scenario . Subsection
(4), quoted previously, defines the scholarship amount as the difference
between in-state tuition at the UK College of Pharmacy and the prevailing
tuition amount at the institution the scholarship student attends . Obviously,
legislation under Section 59, we do not reach the Section 51 issues addressed by
the trial court.
26
this scholarship award provision is premised on the student attending some
pharmacy school other than the UK College of Pharmacy. While subsection (3)
standing alone might suggest a UK pharmacy student could qualify for the
Program, the scholarship award itself in subsection (4) is meaningless for such
a student . There is no construction of that subsection which would produce a
scholarship award to a Kentucky resident attending the UK College of
Pharmacy.
In any event, this Court cannot overlook the clear import of KRS
164 .7901(1) which plainly states the General Assembly's intent in enacting the
Pharmacy Scholarship Program . Simply put, we are not free to ignore portions
of statutes that are inconvenient to a particular litigant's position . Indeed, "the
legislative intention apparent from the whole enactment must be carried into
effect," Milner v. Gibson, 249 Ky. 594, 61 S .W .2d 273, 277 (1933), and "all parts
of the statute must be given equal effect so that no part of the statute will
become meaningless or ineffectual." Lewis v. Jackson Energy Co-op Corp., 189
S .W .3d 87, 92 (Ky. 2005) . Applying these binding statutory construction
principles, subsection (1) must be considered in assessing KRS 164 .7901 and
the inescapable conclusion is that the Pharmacy Scholarship Program was
intended only for students attending the anticipated UC Pharmacy School. As
such, it is special legislation which violates the Kentucky Constitution .
Before turning to Section 59, it is important to note that the dissent's
suggestion that the express legislative intent set forth in subsection (1) of the
statute can be disregarded as a "preamble" is not supported by the legislation
27
itself or our fundamental principles of statutory construction . First, in Part
XXIV of HB 380, 2006 Ky. Acts 252, entitled "Pharmacy Scholarship Program",
there is an actual preamble and it reads: "Notwithstanding KRS 48.310, the
following statute is created to read as follows and shall have permanent effect,
subject to future actions of the General Assembly". This preamble, which does
not become part of the statute itself, is followed by the thirteen subsections
that became the enacted statute now known as KRS 164 .7901 . Thus, it is
inaccurate to characterize subsection (1) as a "preamble" : it is an integral part
of the statute, passed along with the other twelve subsections. Second,
recently in Toy v. Coca Cola Enterprises, 274 S .W.3d 433 (Ky. 2008), this Court
unanimously stated that "[t]he essence of statutory construction is to
determine and effectuate the legislative intent." Id. at 434 (citing Hale v.
Combs, 30 S .W .3d 146, 151 (Ky. 2000) and City of Louisville v. Helman, 253
S .W.2d 598, 600 (Ky. 1952)) . Because our first guiding principle in statutory
construction is to ascertain and effectuate legislative intent, there is no legal
basis for excising subsection (1), wherein the General Assembly expressly
stated its intent in establishing the Scholarship Program . None of the cases
cited by the dissent endorse excising or ignoring an express statement of
legislative intent and, under controlling Kentucky law, we are not at liberty to
do so. Third, assuming arguendo we could strike an express statement of
legislative intent, the justification for doing so under KRS 446 .090 - to salvage
the remaining parts of KRS 164 .7901-requires that the remaining parts of the
statute are not "so essentially and inseparably connected with and dependent
28
upon the unconstitutional part that it is apparent that the General Assembly
would not have enacted the remaining parts without the unconstitutional
part . . . ." When the legislature has stated its express intent in enacting a
statute, however, one cannot possibly say that the remainder of the statute is
not "essentially and inseparably connected with. and dependent upon" the
legislature's very intent in passing the statute . Subsection (1) is the very
reason for KRS 164 .7901, the Pharmacy Scholarship Program's existence. We
know that because the General Assembly told us so in subsection (1) . Finally,
it was unnecessary for the legislature to repeat "an accredited school of
pharmacy at a private four (4) year institution of higher education with a main
campus located in an Appalachian Regional Commission county in the
Commonwealth" every time it subsequently referred to the qualifying pharmacy
school. Statutes, as noted in Lewis, 189 S .W .3d at 92, must be construed to
give meaning to all parts "so that no part of the statute will become
meaningless or ineffectual." Thus, the reference in KRS 164 .7901 (2) to "an
institution in the Commonwealth" does not change or undermine the legislative
intent expressed in the first subsection, rather that subsequent provision is
simply to be construed consistently with subsection (1) .
Section 59 of our Constitution provides that "where a general law can be
made applicable, no special law shall be enacted ." In Kentucky Harlan Coal Co.
v. Holmes, 872 S .W .2d 446, 452 (1994) this Court explained the primary
purpose of this provision is to "prevent special privileges, favoritism and
discrimination and to assure equality under the law ." As we noted in Yeoman
29
v. Commonwealth, 983 S .W .2d 459, 466 (Ky. 1998), the test for special
legislation was formulated by this Court in Schoo v. Rose, 270 S .WW .2d 940 (Ky.
1954) . "In order for legislation to be permissible under Section 59 of the
Kentucky Constitution : `(1) it must apply equally to all in a class and (2) there
must be distinctive and natural reasons inducing and supporting the
classification ."' 983 S.W.2d at 466 .
The class addressed in KRS 164 .7901 is that class of students "who are
enrolled or accepted for enrollment" in a Kentucky pharmacy school and who
will serve in Kentucky . A shortage of pharmacists in the Commonwealth could
well provide the requisite "distinctive and natural" reasons, Schoo, for
classifying these particular students separately for purposes of state-funded
scholarship assistance. KRS 164 .9701's constitutional vulnerability, however,
is the first part of the Schoo testthe requirement that the legislation apply
equally to all in the class . In restricting scholarships to those attending a
specific pharmacy school (and notably one which would have higher tuition
than the public UK College of Pharmacy given the award contemplated in
subsection (4)), the General Assembly failed to treat equally all members of the
pharmacy student class. Only those pharmacy students enrolled or accepted
for enrollment at the planned UC Pharmacy School could take advantage of
this lucrative scholarship program. This is precisely the type of special
privilege and favoritism that Section 59 condemns . Thus, however wellintentioned the Pharmacy Scholarship Program legislation may have been, as
written KRS 164 .9701 is unconstitutional and cannot be implemented.
30
CONCLUSION
The Pharmacy School appropriation violates Section 189 of the Kentucky
Constitution and the Pharmacy Scholarship Program violates Section 59 . On
those grounds, we affirm the trial court's judgment in favor of Plaintiffs .
Minton, C .J. ; Cunningham, Noble, and Schroder, .JJ ., concur.
Cunningham, J., concurs by separate opinion in which Scott, J ., joins . Scott,
J ., concurs in part and dissents in part by separate opinion in which Venters,
J ., joins.
CUNNINGHAM, JUSTICE, CONCURRING: I write to concur with the
excellent work of Justice Abramson, mindful that my writing can neither add to
nor improve upon her well-written opinion.
Our majority opinion today deals primarily with the spending provision of
Section 189 of our state constitution. But that provision is seeded in a
religious context . That is why the trial court also based its findings on the
guarantee of religious freedom in Section 5 of the Kentucky Constitution . The
overarching principle guiding our enforcement of these constitutional directives
is that of separation of church and state .
Therefore, I deem it needful for me to write in an attempt to dispel any
abiding notion that courts, such as this one, in marking clearly the divide
between church and state, are taking a legalistic swipe at religion .
Nothing could be further from the truth . Decisions like that endorsed by
our majority here today have paved the way for religion to grow and prosper in
this land of the free.
31
The history of religious freedom in this country can trace its steps to the
embryonic days of our Republic .
It is not myth to believe that many of the original founders of our country
came here seeking freedom from religious persecution . It is myth to believe
that they always found it when they got here. Many of them, after weathering
the tumultuous dangers of the trans-Atlantic crossing, faced governmental
interference into their beliefs. The original colonial governments demanded
that the early settlers support a state-sponsored religion . Virginia, for
instance, originally taxed all households to support the Anglican Church, just
as had been required in England .
In fact, many of the early colonies established government-run churches
a great deal like the European countries from which believers had fled .
Southern colonies named the Anglican Church. (The Church of England) as Lhe
state church .
While the Puritans complained of the Anglican control, they did not
afford religious freedoms to others . Consequently, many of the colonies of New
England. compelled their citizens to attend the local Puritan or Congregational
Church . Dissent was stifled. Non-Puritan Christians, such as, Catholics, slnd
Quakers were sometimes fined, imprisoned, whipped and even banished .
Tl-ie dissatisfaction of this type of intolerance planted. the seeds for future
reforms culminating in the First Amendme.r t of ou.r U.S. Coristitution .
But Roger Williams would not stand for it.
After being banisfwd from. E .-ngla .n.ci, .he was a.gai .i -) . batiislied from
Ma.-s,sachusetts in 1635 . FIe promptly foundecl Rhode Island, wt-li(JI quickly
established the separation of cliurch ancl state . There, fic also cst,,fl-)1ished. tfie
First Baptist Church in Art -ierica whicli is still in existence oti the ca.rnpus of
Brown University. Needless to say, (,atholics, .Jews, Raptists
O[f1C17S
this haven of religious freedom . It became both a, refuge ai-i(l
ex<:.1rrriaie fear
fled to
-future steps in this direction . Only fifty years later.- , Williarn Perm. di(I the sarric
thing in. establishing Pennsylvania . By the time of our
RevolUfiOtlcfl -y
state had become home to over four hundred religious groups. The
War, th'"At
L.11 -1clerlying
force for these movements was separating government from religion . Such a
notion. was so popular tlir~tt these colonies grew irt leaps ,.-i.rid. bot-trids
showed to the world how peoples of divergent: religious befiefis
('OLIICl
a.1-1.d.
live
together in harmony. At the time of the Revolutionary War-, there were still .
nine colonies with state-run churches . This unpopular yoke
Of Spirit.11<:x1
repression was joyously thrown off by th.e successful rebell.iot -) wl-i icfi forged this
Country .
There has been no country since recorded time where religion has thrived
and flourished as over the last 230 years in the United States of America. In
addition to the Catholic Church, which claims over one-fourth of Americans as
members, there are over 71 different Protestant churches self-reporting to the
United States Census Bureau. These do not include the thousands of
unaffiliated churches hidden in the nooks and (crannies of our country,
including the cinder block, "Nothing Fancy Holiness Church," in a west
33
Kentucky community . That is not to mention the sizable number of the Jewish
faith, as well as Hindus, Muslims, Buddhists, and others.
All these creeds and groups, large or small, from the cinder block hovels
of rural America to the gothic spires of Saint Patrick's Cathedral in Manhattan,
make their own equal claim to ecclesiastical purity .
Where else in the world is one able to find such a kaleidoscope of faith?
This is because of our fundamental belief as a nation that religion and
state should co-exist in harmony with each other, but along distinct and
separate tracks. Most importantly, under our constitutional framework,
religion is allowed to breathe free of the enervating drag of government
regulation, taxation and control .
By all accounts, the University of the Cumberlands is nothing short of
remarkable . What began as a small, struggling, Baptist liberal arts college in
the mountains has evolved into a thriving, beautiful campus and university .
Unfortunately, in this country, operating a major college sometimes
requires more money than can be given by its benefactors . That is why many
strictly religious schools have transformed into secular institutions . Brown
University in Rhode Island ; George Washington University in Washington, D .C. ;
University of Richmond in Virginia; Wake Forest University in North Carolina;
Mercer University in Georgia; Stetson University in Florida; Belmont University
in Tennessee ; and Georgetown College in Kentucky are some examples of these .
Many would say that we are fortunate that some religious schools like the
University of the Cumberlands have stayed the course and have remained
34
strictly religious schools, free from state entanglements. Many would say it
should stay that way. Those many will support our decision here today.
There is a grand irony in this case which involves a Baptist supported
college seeking a state supported pharmacy school .
Baptists come from a long line of "Separatists ." They fled England to
Holland and later to America to escape entanglements with the state .
The real battle for religious liberty and separation of church and state
was in Virginia, the Carolinas, and Georgia . In those colonies, Baptist
preachers were jailed for preaching. It is well-documented that Madison was
influenced by the Baptists in drawing up the Bill of Rights - more especially the
First Amendment's separation of church and state . The Baptist vote was
pivotal in the adoption of our Constitution and its subsequent Amendments .
Separation of church and state has been an axiom of the Baptists for
centuries - The Philadelphia Confession of Faith (1689 8v 1742) ; The New
Hampshire Baptist Confession of Faith (1833) ; and The Baptist Faith and
Message (1925) .
John Leland was a highly influential Baptist preacher and friend of both
Thomas Jefferson and James Madison . Over several early decades of our
Democracy, he preached fervently and eloquently for the separation of church
and state . "The work of the legislature," he declared, "is to make laws for the
security of life, liberty and property, and leave religion to the consciences of
individuals ."
The early Baptists, at least, believed that church and state are mutually
beneficial only if they remain distinct and separate in the normal affairs of
life . These deeply rooted tenets could provide the guideposts for our decision
here today. They hold that the state provides a favorable atmosphere in which
the church can do its work . And the churches, in turn, should produce,
through their respective creeds, citizens who will contribute to a stable social
order. At the same time, church and state are mutually exclusive .
Neither should seek to control the other or use it in filling its peculiar
role .
Neither should propose to tell the other how to discharge its
responsibility.
The church should not seek to use the state for its purposes .
The state should not commandeer the church for political ends .
The state should not favor one "religion" above another.
Taxes should not be levied against property used for religious purposes .
The church should not receive tax funds for use in discharging its
educational, healing, or spiritual responsibilities .
This constitutional division of church and state has acted to save
religious organizations from self-destructing from their own zeal . Religious
schools are free to exist and function in accordance to their own moral and
theological dogma. This includes the right to restrict their memberships and
their campus academia to strict, sometimes even unpopular, religious views
and activities . When state involvement and support begins to be part of their
36
operations, this freedom goes away. We do not know what. twists and turns
pharmaceutical science may take over the next. fifty years. It is not
inconceivable that it may infringe upon the religious and moral beliefs of some
- maybe even Baptists. If public funding and control creeps onto the campuses
of religious colleges, the aims of those religious schools may be terminally
compromised .
That is not to say that religion has not blended into our national
government's creation and experience . Marbled within the granite of this great
republic is traditional reverence and respect to a Supreme Being in whatever
form or name we reverently allude to this higher power. Religion, in some
form, is as much a part of this country and its rich heritage as the towering
pines of the northeast or the blooming magnolias of the south .
This religious faith has been woven so intricately into the whole cloth of
the rich American experience that it cannot be removed without unraveling and
disintegrating the rich fabric of American life.
By the very definition of our beginning, and through the arduous
pilgrimage of us as a people, a certain level of religiosity legitimately exists in
our public institutions and symbols . This veil between religion and
government in this country is, as the late University of Kentucky law professor
Paul Oberst suggested, "a homogeneous wall ." Homogenization, in dairy terms,
is an intricate blending of the whey and the cream into an inseparable whole .
So, in terms of a "homogeneous wall" of separation of church, the idea is that
within this broad line which separates the two, there is an amalgamation
37
where the spirit of religion co-exists with statecraft and will be given profound
deference . "In God We Trust," referencing a higher deity engraved upon coins,
public buildings and images, as well as like words in songs, prose, and our
Pledge of Allegiance, "Under God," are some of these examples . Even some of
our cherished national holidays, such as Thanksgiving and Christmas, are
religious holidays .
But state sponsorship and support of religious schools is outside of the
pale and crosses the line of this great divide .
No one takes issue with the admirable aim of the University of the
Cumberlands in wishing to educate pharmacists for the southeastern part of
our state. But from a political and practical standpoint, allowing public
funding to flow across religious lines would create more competition between
light houses than already exists today between our state and regional colleges
and universities. It would provide fuel for religious wars of sorts between
competing and varying religious sects and denominations . If a pharmacy
school at the University of the Cumberlands, why not a veterinary school on
campus at Catholic Brescia College in Owensboro?
It would appear that our religious institutions have a daunting enough
task, if it is to maintain spiritual sustenance and nurturing in a bewildered and
fearful world, than to go head to head with public schools for the sticks and
stones of campus buildings . Such struggles would dilute the intensity of their
cause and drain much needed energy and resources from their critical mission.
The poet, George Greenleaf Whittier, caught the sentiment of many in his
time, as well as today: "The Lord is God! He needeth not the poor device of
man ." It can readily be added, "Nor the help of the state." To say that
government or courts affect the whereabouts of the Almighty, such as "putting
God in schools" or "taking God out of schools," is not only silly, but borders on
sacrilege . Such a notion banners the lack of faith, rather than the essence of
faith .
This wholesome and blessed balance between church and state can only
be maintained through our courts . These grand constitutional commandments
speak not only to the genius and wisdom of our forefathers, but also to their
astounding reverence for the soul .
Our humble decision here today is one small ripple enveloped in the
marching billows of the ages .
Scott, J., joins.
SCOTT, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
Although I concur with the majority opinion and join Justice Cunningham's
concurring opinion as to why, historically, an appropriation to one particular
college affiliated with one particular denomination - among the many in
America - violates Section 189 of the Kentucky Constitution, I must
respectfully dissent from the majority's opinion that the Pharmacy Scholarship
Program is special legislation and therefore in contravention of Section 59 of
the Kentucky Constitution . In so doing, I must note my agreement with
Justice Venters that eastern and southeastern Kentucky are geographically
39
under-served by our state university system . To quote a comment by Justice
Venters :
Nearly 40% of Kentucky's land area, and about 25% of the state
population, lies to the south and east of the line extending across
the map of Kentucky from the Ohio River through Morehead State
University to Eastern Kentucky University at Richmond, and from
there through Western Kentucky University in Bowling Green to
the Tennessee border, yet it is home to not one of this state's eight
public universities.
House Bill 380 included a three-part legislative plan for addressing the
pharmacist shortage in Kentucky . 16 The first part appropriated almost
$80,000,000 to the University of Kentucky for the construction of a
biological/ pharmaceutical complex. It was envisioned that this new funding
would assist the University of Kentucky College of Pharmacy in doubling its.
enrollment . The second part was the $10,000,000 appropriation for a new
pharmacy school building at the University of the Cumberlands. The third part
was the establishment of a Pharmacy Scholarship Program to encourage
students to study pharmaceutical science.
The Pharmacy Scholarship Program is codified at KRS 164 .7901(2)-(13) .
This scholarship program provides scholarship monies to individual students
who direct the payment of their scholarship awards to the Kentucky pharmacy
school they are attending . The awards are made by the Kentucky Higher
16
"The fact remains: Kentucky has a shortage of pharmacists, particularly in
Southeastern Kentucky." Quote from former-Governor Ernie Fletcher, April 24,
2006 . "We face a tremendous shortage of licensed pharmacists across the
Commonwealth, and therefore KPhA [Kentucky Pharmacists' Association)
encourages expansion of pharmacy training slots in Kentucky as long as the need
exists ." Extract from Kentucky Pharmacists' Association public statement in
regards to pharmacy provisions in H.B. 380 .
40
Education Assistance Authority to the extent funds are otherwise available and
allocated from coal severance tax revenues . KRS 164 .7901(11)(b) . Under KRS
164 .7901(3) and (11) (a), scholarships are available to individuals who are
United States citizens and Kentucky residents, who are enrolled or accepted in
a full-time pharmacy program in the Commonwealth, who will serve one year
as a pharmacist in Kentucky for each year that scholarship money is received,
and who sign a promissory note with interest to repay the scholarship award if
they fail to render the agreed service in Kentucky . The amount of the
scholarship is calculated as the difference between the "in-state" tuition
amount at the University of Kentucky College of Pharmacy and the prevailing
tuition at the pharmacy school at which the student is enrolled. 1 7 KRS
164 .7901(4) .
Thus, one of the primary purposes of H .B . 380 was to increase the
training and education of pharmacists at accredited pharmacy schools in
Kentucky in order to reduce the perceived shortages, particularly in rural
areas . Of course, in 2006, Kentucky only had one School of Pharmacy - the
one at the University of Kentucky . Thus, H.B. 380 budgeted almost
$80,000,000 to expand the pharmaceutical facilities at UK with the expectation
of increasing admissions and graduates.
17
By virtue of H.B. 406, the general appropriations bill for fiscal years 2008-2009 and
2009-2010, the General Assembly directed that "no funds should be transferred to
the Pharmacy Scholarship Program Fund ." Executive Budget, 2008 Acts, Ch. 127
(H.B. 406), reprinted in KRS Chapter 47.
41
In addition, H .B . 380 sought to fund the construction of a new pharmacy
school at the University of the Cumberlands . This, too, would have
successfully increased the number of pharmacy admissions and graduates had
it not violated Section 1.89 of the Kentucky Constitution .
Finally, H .B . 380 set up a scholarship program to be administered by the
Kentucky Higher Education Assistance Authority and designed to ensure that
those Kentucky residents not desirous of, or able to attend, the University of
Kentucky College of Pharmacy could do so at any other "institution in the
Commonwealth" at the same amount charged for "in-state" tuition at the
University of Kentucky College of Pharmacy, subject, however, to future
adequate funding for the scholarships and a pharmacy student's agreement to
trade a year of practice in the Commonwealth for each scholarship year.
Thus, not only did the General Assembly provide the statutory
framework in H .B. 380 to increase admissions and the number of pharmacy
graduates, but it also designed the statutory scheme to assist those who would
be more likely to practice in Kentucky, and thus, alleviate the perceived
shortage.
The majority, however, invalidate these scholarship provisions based
upon the statutory preamble which precedes the scholarship provisions and
reads :
It is the intent of the General Assembly to establish a scholarship
program to provide eligible Kentucky students the opportunity to
attend an accredited school of pharmacy at a private four (4) year
institution of higher education with a main campus located in an
Appalachian Regional Commission county in the Commonwealth
and become certified pharmacists in the Commonwealth . 1s
KRS 164. 7901(1) . Yet, the language contained in this statement of intent, or
preamble, is not found within any of the actual scholarship provisions, which
require only "an institution in the Commonwealth ." KRS 164.7901(2) ; see also
KRS 164 .7901(11)(a) ("[S]cholarships to eligible students studying pharmacy in
schools in the Commonwealth") .
Plainly, as we noted in Jasper v. Commonwealth, 375 S .W . 2d 709, 710
(Ky. 1964), a "preamble is not the law. It is not necessary for its enactment,
nor are its provisions binding. We cannot test the constitutionality of [an] Act
by its preamble ." (Citations omitted) ; see also City of Elizabethtown v. Cralle,
317 S .W .2d 184, 187 (Ky. 1958) ("A preamble to a statute or ordinance, the
same as a preamble to a contract, is merely an introductory clause, expressing
the reasons for and objects sought to be accomplished by the body of the
enactment or agreement, and is not an essential part thereof.") ; but see Jones
v. City of Paducah, 283 Ky. 628, 142 S .W .2d 365, 367 (1940) ("The recital may
be resorted to as an aid in construction or interpretation, but it is not an
essential part of the operative portions of the contract .") . Here, however, no
construction of the Scholarship Program is allowed as the scholarship's plain
language necessitates no construction . In fact, the majority should go no
18 The Appalachian Regional Commission counties in Kentucky are: Adair, Bath, Bell,
Boyd, Breathitt, Carter, Casey, Clark, Clay, Clinton, Cumberland, Edmondson,
Elliot, Estill, Fleming, Floyd, Garrard, Green, Greenup, Harlan, Hart, Jackson,
Johnson, Knott, Knox, Laurel, Lawrence, Lee, Leslie, Letcher, Lewis, Lincoln,
McCreary, Madison, Magoffin, Martin, Menifee, Metcalfe, Monroe, Montgomery,
Morgan, Nicholas, Owsley, Perry, Pike, Powell, Pulaski, Robertson, Rockcastle,
Rowan, Russell, Wayne, Whitley, and Wolfe.
43
further than to recognize the preamble's separability from the actual
scholarship provisions . KRS 446 .090 . 1 ')
Yet, in reliance on Milner v. Gibson, 249 Ky. 594, 61 S .W .2d 273, 277
(1933) and Lewis v. Jackson Energy Co-op. Corp., 189 S .W.3d 87, 92 (Ky.
2005), the majority treats these mere "hopes" of the legislature as an operative
part of the Scholarship Program, thus changing its wording. However, Milner
dealt with a direct conflict between two legislative enactments of 1912 and
1932, which thus required construction . 61 S.W .2d at 276 . In fact, the full
quote in Milner reads :
Statutes 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.
Id. at 277 (emphasis added) . Here, the actual scholarship provisions are very
forward and clear, requiring only that the resident-student attend an
"institution in the Commonwealth ." KRS 164 .7901(2) . Thus, no construction
is required and any legislative "hope," or intent, is irrelevant . "Where a statute
is intelligible on its face, the courts are not at liberty to supply words or insert
19
KRS 446 .090 reads:
It shall be considered that it is the intent of the General Assembly, in
enacting any statute, that if any part of the statute be held
unconstitutional the remaining parts shall remain in force, unless the
statute provides otherwise, or unless the remaining parts are so
essentially and inseparably connected with and dependent upon the
unconstitutional part that it is apparent that the General Assembly
would not have enacted the remaining parts without the
unconstitutional part, or unless the remaining parts, standing alone,
are incomplete and incapable of being executed in accordance with the
intent of the General Assembly.
44
something or make additions however just or desirable it might be to supply an
omitted provision ." AIK Selective Self-Insurance Fund v. Minton, 192 S . W.3d
415, 418 (Ky. 2006) (quoting Berry v. Commonwealth, 782 S .W .2d 625, 626 (Ky.
1990)) .
Lewis also required statutory construction to resolve an apparent conflict
between the words "electric" and "energy." 189 S.W .3d at 91 . Thus, the full
quote reads :
The single use of the word "electric" does not vitiate its application
to the remainder of the statute . The statute must be read as a
whole and in context with other parts of the law. All parts of the
statute must be given equal effect so that no part of the statute will
become meaningless or ineffectual.
Id. at 92 . Here again, there is no internal conflict within the actual scholarship
provisions that would allow, or require, this Court to interpret "an institution in
the Commonwealth," KRS 164 . 7901(2), in any other manner than it reads,
notwithstanding the "hopes" of the General Assembly as expressed in the
preamble . KRS 164 .7901 . To do otherwise - where there is no internal need for
construction - uses the preamble to change the clear acknowledgement in KRS
164.7901(2) and (11) (a) that the scholarship is available for attendance at an
"institution in the Commonwealth."
Thus, the majority ultimately concludes "that the Pharmacy Scholarship
Program was intended only for students attending the anticipated UC
Pharmacy School. As such, it is special legislation that violates the Kentucky
Constitution ." Slip op. at 27. By this inappropriate application of the statutory
rules of construction, the majority erroneously limits the class defined to "those
45
pharmacy students enrolled or accepted for enrollment at the planned UC
Pharmacy School." 1d. at 28 . This facilitates their ultimate conclusion that the
scholarship program constitutes "special legislation," since it can benefit only
those students who would have gone to the UC College of Pharmacy - even
though there is no UC College of Pharmacy.
Again, as noted, aside from the preamble, the actual scholarship
provisions apply "to persons who declare an intent to enroll in a Pharm.D .
program at an institution in the Commonwealth." KRS 164 . 7901(2) (emphasis
added) . Thus, the actual scholarship provisions do not limit the scholarships
to students attending the "anticipated UC Pharmacy School ."
Such logic also ignores the fact that the UC Pharmacy School was
nothing more than a hope at the time of the enactment of KRS 164 .7901 in
2006, while Sullivan University in Louisville, Kentucky, was real and in the
process of starting an on-campus, private College of Pharmacy. It started its
first class in 2008 and is now in the process of accreditation . Its first class will
graduate in 2011 .
Moreover, Midway College is currently progressing toward the opening of
a private, on-campus, School of Pharmacy in Paintsville, Kentucky and is in
the process of pre-candidate accreditation. Lexington Herald Leader, Monday,
January 25, 2010, Paintsville's Pharmacy School Follows a Familiar Path, by
Dori Hjalmarson . Both Sullivan University and Midway College are secular
institutions .
Legislatures hope for many things, but they plan for many more . That is
their job - not ours . Things evolve and circumstances change, often beyond
anyone's imagination . Thus, we should be circumspect in limiting an act of
Kentucky's General Assembly to only one pre-determined outcome - here, the
University of the Cumberlands - especially when it actually referred in the
statutory framework not to UC, but to "an institution in the Commonwealth ."
KRS 164 .7901(2), (11)(a) . This broader reference to an institution is a sign of
their wisdom and, hopefully, it will trigger ours .
Admittedly, students at the University of Kentucky College of Pharmacy
cannot receive the benefit of the scholarships . But why would they? The
Scholarships, if ever fully funded, can only reduce another pharmacy school's
tuition to what UK pharmacy students already pay . KRS 164 . 7901(4) .
Moreover, the statutory scheme reflects the fact that the UK School of
Pharmacy is already substantially publicly funded, was the recipient of an
additional $80,000,000 under H.B . 380, and the number of slots available at
UK (which the legislature hoped to increase) were limited in number.
Clearly then, the General Assembly recognized that it needed to create
additional slots at other schools to attack the shortage . In fact, when properly
funded, KRS 164 .7901(4) works no disadvantage to students of the University
of Kentucky College of Pharmacy, as it does not put those attending UK at any
financial disadvantage, but merely funds other slots at other schools at the
same price as UK so that more Kentucky students may become pharmacists,
Kentucky may reduce its pharmacist shortage sooner, and, hopefully,
Kentuckians will enjoy better health .
"In order for legislation to be permissible under § 59 of the Kentucky
Constitution : `(1) It must apply equally to all in a class, and (2) there; must be
distinctive and natural reasons inducing and supporting the classification ."'
Yeoman v. Commonwealth, Health Policy Bd., 983 S .W.2d 459, 466 (Ky. 1998)
(citations omitted) . "In performing an analysis under § 59, determining
whether the first prong of the test is satisfied should be a fairly straightforward
matter. Either the laws do apply to everyone in the class equally or they do
not." Id. at 468.
The majority's construction, paradoxically, commands the inclusion of
UK's pharmacy students in the class they envision as proper, even though the
number of slots available at UK (currently the only accredited pharmacy school
in Kentucky) has contributed to the shortage, and even though the scholarship
funding mechanism is designed to keep the cost of new pharmacy school slots
pegged at the "in-state tuition" rate of UK's College of Pharmacy.
Consequently, with the majority's result, the Kentucky General Assembly is
prohibited from solving the shortage within a quicker time frame as would be
possible with other available pharmacy school slots; this, even though UK
received the bulk of H.B. 380's funds - almost $80,000,000!
However, as hopefully can now be seen, the General Assembly
appropriately drew the class to be all Kentuckians attending pharmacy school
in Kentucky, who either did not want to, or could not, attend the University of
48
Kentucky College of Pharmacy. As shown, the drawing of the class in this
manner works no disadvantage to those who are qualified (arid lucky enough!)
to fill the limited number of slots available at UK's College of Pharmacy . This is
the class designed by the General Assembly in KRS 164.7901(2), (3), and (4),
and, plainly, every member of this class would have the same opportunity if
and when there is adequate funding available . Thus, KRS 164 .7901 satisfies
the first prong.
"However, deciding whether the classification itself is valid can be
substantially more complex." Yeoman, 983 S.W.2d at 468 . Thus, "the burden
is on the party claiming the validity of the classification to show that there is a
valid nexus between the classification and the purpose for which the statute in
question was drafted." Id. "There must be substantially more than merely a
theoretical basis for a distinction. Rather, there must be a firm basis in
reality." Id.
Here, "[t]he primary, or even secondary purpose of [KRS 194.79011 is
clearly the improvement of the health care system in the Commonwealth ." Id.
Moreover, it is clear that with one pharmacy school in the Commonwealth, we
have not been able to meet the need for pharmacists in Kentucky, especially in
rural Kentucky . "Thus, far from being random and arbitrary, the classification
created by [KRS 164 .790 1 ] is specifically tailored" to provide more pharmacists
for Kentucky, id. at 469, and provide them more quickly than just one school
could . Thus, "[t]he requirement that there be a valid nexus between the
classification and the intent is thereby satisfied." Id. Plainly then, KRS
164 .7901 satisfies the requirement of Section 59 of the Kentucky Constitution .
Thus, I must respectfully dissent from the majority's conclusion that
KRS 164 .7901 violates it.
Venters, J ., joins .
COUNSEL FOR UNIVERSITY
OF THE CUMBERLANDS :
Mark Richard Overstreet
Stites 8v Harbison, PLLC
421 West Main Street
P. O . Box 634
Frankfort, KY 40602-0634
James Dee Jordan
Guenther, Jordan 8v Price, PC
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Kimberlee Wood Colby
Center for Law 8v Religious Freedom
8001 Braddock Road, Suite 300
Springfield, VA 22151
COUNSEL FOR
REV. ALBERT M. PENNYBACKER,
REV. DR . PAUL D . SIMMONS,
JEFFERSON COUNTY TEACHERS
ASSOCIATION, CHRISTINA GILGOR,
KENTUCKY FAIRNESS ALLIANCE:
David B . Tachau
Tachau Meek PLC
2400 National City Tower
101 S . Fifth Street
Louisville, Ky 40202-3115
50
COUNSEL FOR
STEVEN L. BESHEAR, Formerly
ERNIE L. FLETCHER, in his Official
Capacity as GOVERNOR OF THE
COMMONWEALTH OF KENTUCKY :
Ellen M. Hesen
General Counsel
Office of the Governor
101 State Capitol Building
700 Capitol Avenue
Frankfort, KY 40601
COUNSEL FOR
VERNIE MCGAHA, GARY TAPP,
JACK WESTWOOD, CARROLL GIBSON,
DAMON THAYER, ERNIE HARRIS
DICK ROEDING, DANNY FORD,
JOE FISCHER, MIKE HARMON,
TOM KERR, MARIE RADER and
ADDIA WUCHNER, in their Official
Capacity as MEMBERS OF THE
KENTUCKY GENERAL ASSEMBLY :
Bryan Howard Beauman
Sturgill, Turner, Barker 8v Moloney, PLLC
333 W Vine St., Suite 1400
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COUNSEL FOR AMICUS CURIAE :
Mary Wheeler Ruble
Kentucky Education Association
401 Capital Avenue
Frankfort, KY 40601
William Ellis Sharp
American Civil Liberties Union of Kentuc
American Civil Liberties Union Program
on Freedom of Religion and Belief
Americans United for Separation
of Church and State
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Louisville, KY 40202
51
Robert Daniel Beale
American Jewish Congress
Anti-Defamation League
McKenna, Long 8U Aldridge, LLP
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Jessica C . Abrahams
American Jewish Congress
Anti-Defamation League
McKenna, Long 8v Aldridge, LLP
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Washington, DC 20006
Mark Alan Wohlander
The Becket Fund
Wallingford Law PSC
3141 Beaumont Centre Circle
Suite 302
Lexington, KY 40513
Lori H . Windham
The Becket Fund for Religious Liberty
1350 Connecticut Ave ., NW
Suite 605
Washington, DC 20036
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