VIRGINIA G. FOX V. TREY GRAYSON (IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE REVERSING AND REMANDING ABRAMSON, J., CONCURS IN RESULT ONLY BY SEPARATE OPINION. CUNNINGHAM, J., DISSENTS BY SEPARATE OPINION IN WHICH SCHRODER, J., JOINS. SCHRODER, J., DISSENTS BY SEPARATE OPINION IN WHICH CUNNINGHAM, J., JOINS.
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2009-SC-000066-TG
DAT APPELLANT
VIRGINIA G. FOX
V
ON APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D . WINGATE, JUDGE
NO. 08-CI-01426
TREY GRAYSON (IN HIS OFFICIAL
CAPACITY AS SECRETARY OF STATE
OF THE COMMONWEALTH OF KENTUCKY) ;
STEVEN L. BESHEAR (IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF THE
COMMONWEALTH OF KENTUCKY) ;
AND PAM MILLER
APPELLEES
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
I . INTRODUCTION .
In 1992, the voters approved amendments to § 93 of Kentucky's
Constitution . The narrow question now before this Court is whether § 93, as
amended in 1992, vests in the Kentucky State Senate alone the right to
confirm appointees to so-called inferior state offices and nominees to boards
and commissions . After careful consideration, we hold that § 93 of the
Constitution, as amended, gives the Senate the sole right of confirmation .
II. FACTUAL AND PROCEDURAL HISTORY.
In July 2007, Governor Ernie Fletcher appointed Virginia Fox to the
Council on Postsecondary Education (CPE) for a term expiring December 31,
2012. Fox took her seat on the CPE immediately because the General
Assembly was not in session at the time .' Before the next session of the
General Assembly convened in January 2008, Steven L. Beshear replaced
Fletcher as Governor of Kentucky .
During the 2008 regular session of the General Assembly, the Senate
voted to confirm Fox's appointment to the CPE ; but the House of
Representatives failed to act on Fox's appointment before it adjourned sine
die. 2 Because Fox was not confirmed timely by both legislative bodies as
KRS 164 .011(1) purports to require, 3 Governor Beshear's general counsel
informed Fox that her seat on the CPE "has become vacant by operation of
law." A few weeks later, Governor Beshear appointed Pam Miller to replace Fox
See Kentucky Revised Statutes (KRS) 11 .160(2) (h) ("During periods when the
General Assembly is not in session, the Governor's or other appointing authority's
power of appointment shall not be diminished, and nominees may assume the
responsibilities of the position pending confirmation . During that period, they
shall be considered for all purposes to have been appointed and to be lawful
occupants of the post to which they have been nominated, except that they shall be
subject to the confirmation process when the General Assembly is next in regular
session or special session called for the purpose of confirming the nominees.") .
The Senate's vote to confirm Fox is, at least on its face, curious because
KRS 11 . 160(2) (fl says, "[t]he confirmation shall originate in the House of
Representatives. If the House of Representatives does not confirm an appointment,
the Senate shall not consider the appointment." We take no position on whether
the Senate's vote to confirm Fox was valid. That issue is not properly before us
because it was not fully developed in the circuit court.
KRS 164.011(1) states, in relevant part, that "[t)he citizen members [of the CPE]
shall be confirmed by the Senate and the House of Representatives under
KRS 11 .160 . . . ."
on the CPE. Because the General Assembly was not in session at the time of
her appointment, Miller took her seat on the CPE immediately.
Fox filed a declaratory judgment action in the Franklin Circuit Court
against Miller; Governor Beshear, in his official capacity; and Trey Grayson, in
his official capacity as Secretary of State of the Commonwealth of Kentucky .
The heart of Fox's complaint was her contention that § 93 of the Kentucky
Constitution vests the Senate with the sole power to confirm appointees such
as she . For that reason, Fox argued, Miller's appointment was legally
ineffective because Fox had already been duly confirmed by the Senate.
Secretary Grayson filed an answer in which he, essentially, took no
position regarding the merits of Fox's complaint. Instead, Secretary Grayson
asked to be relieved of any responsibility to file further responsive pleadings
and to be designated as a nominal party. Governor Beshear, joined by Miller,
however, took an active position against Fox's contentions, choosing - in lieu
of an answer - to file a motion to dismiss under Kentucky Rules of Civil
Procedure (CR) 12.02, arguing Fox's failure to state a claim upon which relief
may be granted. 4 After briefing was completed, the trial court granted the
Governor's motion to dismiss .
Miller joined Governor Beshear's CR 12 .02 motion in the circuit court and has filed
a brief with us simply stating that she agrees with the arguments contained in
Governor Beshear's brief. So we shall simply use the shortened term "Governor"
when referring to arguments advanced by both Governor Beshear and Miller.
Fox appealed that dismissal to the Kentucky Court of Appeals . 5 Because
her appeal involves issues of great and immediate public importance, we
granted Fox's unopposed motion to transfer her appeal to this Court. Now,
having fully considered the well-presented arguments of the parties, as well as
the applicable law, we conclude that Fox's assertion that § 93 of the Kentucky
Constitution provides the Senate with the sole power to confirm gubernatorial
appointments is correct. We reverse the trial court's order of dismissal and
remand this case to Franklin Circuit Court for all necessary further
proceedings .
III. ANALYSIS.
A. Section 93 and its Constitutional Predecessors .
In order to understand fully the current version of § 93, we must first
examine its historical underpinnings . As the Governor notes, our first two
state constitutions each indisputably conferred upon the Senate the exclusive
authority to confirm gubernatorial appointments . 6 Our third constitution,
Apparently, in March 2009, before we granted transfer of Fox's appeal from the
Court of Appeals, both the Senate and the House voted to confirm Miller as a
member of the CPE.
Article II, § 8, of the 1792 Kentucky Constitution provided, in relevant part, that
the Governor "shall nominate, and by and with the advice and consent of the
Senate, appoint all officers, whose offices are established by this Constitution, or
shall be established by law, and whose appointments are not herein otherwise
provided for . . . ." See http://courts .ky.gov/NR/rdonlyres/7471028C-8BCC-41A2BA80-02013D4FA550/ 0/ 1 stKYConstitution.pdf.
Likewise, Article III, § 9, of the 1799 Kentucky Constitution used the same
language as the 1792 Kentucky Constitution . See http://courts .ky.gov/NR/
rdonlyres/E547054 3A249-4265-8EDD-OCODDD6A7212/0 /2ndKYConstitution.pdf.
(providing that the Governor "shall nominate, and by and with the advice and
consent of the Senate, appoint all officers, whose offices are established by this
adopted in 1850, however, did not so clearly provide the manner of
appointment and confirmation of inferior state officers . Instead, Article 111,
§ 25, of the 1850 Constitution merely provided that "inferior State officers, not
specially provided for in this Constitution, may be appointed or elected in such
manner as shall be prescribed by law . . .
."7
Our current Kentucky Constitution, our Commonwealth's fourth, was
adopted in 1891 . As originally adopted, § 93 of our current Constitution
provided, in relevant part, that "[i]nferior State officers, not specifically provided
for in this Constitution, may be appointed or elected, in such manner as may
be prescribed by law . . . ." So, as originally adopted, § 93 was quite similar to
its predecessor in the 1850 Constitution .
Section 93 remained unchanged for about a century, during which time
the voters of the Commonwealth rejected three proposed amendments to it. 8
Then, in 1992, the General Assembly enacted SB 226, 9 which again placed among other things - proposed amendments to § 93 before the voters of the
Commonwealth for their rejection or ratification. 10 Undoubtedly, the most wellConstitution, or shall be established by law, and whose appointments are not
herein otherwise provided for . . . . ") .
See http://courts . ky.gov/NR/rdonlyres/514E219E-9A7A-4D29A862-OC9BDOOA
3EC1/ 0/3rdKYConstitution .pdf.
The voters of the Commonwealth rejected proposed amendments to § 93 in 1972,
1980, and 1986 . See Historical and Statutory Notes to § 93 (available at
http://web2 .westlaw. comlftnd/ default. wl?stid= % 7bd6351998-82aO-403f-9e 7fOb1f15cc2300%7d&ifm=NotSet&rp=%2ffind9 ,o'2fdefault. wl&sv=Split&rs=WLW10. 02&
cite =ky+const+93&fn=top&mt=Kentucky&vr=2 .0).
9
See 1992 Ky. Acts, Ch. 168 (S.B. 226), § 12 .
io See Ky. Const. § 256 ("Amendments to this Constitution may be proposed in either
House of the General Assembly at a regular session, and if such amendment or
known part of SB 226 was a clause permitting many statewide constitutional
officers, most notably the Governor, to serve two consecutive terms. This case
focuses upon a less heralded part of that bill that gives the Senate the express
right to confirm nominees .
The voters approved the proposed constitutional amendments contained
in SB 226. 11 So, after the amendments of 1992, § 93 reads as follows : 12
The Treasurer, Auditor of Public Accounts, Secretary of State,
Commissioner of Agriculture, Labor and Statistics, and Attorney
General,
Land
e shall be ineligible to re-election for the succeeding four
years after the expiration of the any second consecutive term for
which they shall have been elected . The duties and responsibilities
of these officers shall be prescribed by law, and all fees collected by
any of said officers shall be covered into the treasury . Inferior
State officers and members of boards and commissions, not
specifically provided for in this Constitution, may be appointed or
elected, in such manner as may be prescribed by law, which may
include a requirement of consent by the Senate, for a term not
amendments shall be agreed to by three-fifths of all the members elected to each
House, such proposed amendment or amendments, with the yeas and nays of the
members of each House taken thereon, shall be entered in full in their respective
journals. Then such proposed amendment or amendments shall be submitted to
the voters of the State for their ratification or rejection . . . . ").
Interestingly, although they approved the amendment at issue in the case at hand,
the voters also rejected another proposed amendment to § 93 in 1992 . See
Historical and Statutory Notes to § 93 (available at http://web2 . westlaw. com/find/
default. wl?stid=%7bd6351998-82aO-403f-9e7f-Oblf15cc2300%7d&ifm=NotSet&rp=
962ffind9,62fdefault .wl&sv=Split&rs=WLW10 .02&cite=ky+const+93&fn -top&mt=Ken
1
tucky&vr=2.0). The amendment rejected by the voters in 1992 would have, among
12
other things, changed the offices of State Treasurer, Secretary of State, and
Commissioner of Agriculture from elective to appointive offices . See 1992 Ky. Acts,
Ch. 112, § 2 (S .B. 262) . That defeated amendment also would have contained
language providing that inferior state officers and members of boards and
commissions could be appointed or elected in the manner prescribed by law,
"which may include a requirement of consent by the Senate . . . ." Id.
Additions to § 93 occasioned by the 1992 amendments are referenced in italics and
deletions of the former language of § 93 occasioned by the 1992 amendments are
referenced by strikethrough.
exceeding four years, and until their successors are appointed or
elected and qualified . 13
B. Related Statutes.
Although the wording of § 93 is paramount in our analysis, we must also
consider related statutes that have a direct bearing on this case .
We have already cited KRS 11 .160(2) (h), which permitted Fox to take her
seat on the CPE in the interim pending a confirmation vote. But we must also
consider KRS 164 .011(1), which describes the nomination procedure for
members of the CPE. As originally enacted in 1992, that statutory subsection
provided as follows:
There shall be a Council on Higher Education in Kentucky,
appointed for a term set by law pursuant to Section 23 of the
Constitution of Kentucky . The council shall be composed of the
chief state school officer, and seventeen (17) lay members
appointed by the Governor : one (1) from each Supreme Court
district, ten (10) at large members which shall include a student
member. 14
In 1994, KRS 164.011 was amended in a manner not germane to this case. In
1997, however, KRS 164 .011 was substantively amended to require members
to be confirmed by both chambers of the General Assembly . 15 After the
1997 amendments, KRS 164 .011(1) provides as follows : 16
There is hereby created and established a Council on
Postsecondary Education in Kentucky as an agency,
instrumentality, and political subdivision of the Commonwealth
and a public body corporate and politic having all powers, duties,
13
14
1s
16
See 1992 Ky. Acts, Ch. 168 (S.B. 226), § 12 .
See 1992 Ky. Acts, Ch . 10 (H.B. 149), § 7.
See 1997 Ky. Acts, 1st Extra Sess ., Ch . 1 (H.B. 1), § 73 .
There have been no amendments to KRS 164.011 since 1997.
and responsibilities as are provided to it by law, appointed for a
term set by law pursuant to Section 23 of the Constitution of
Kentucky . The council shall be composed of the commissioner of
education, a faculty member, a student member, and thirteen (13)
citizen members appointed by the Governor . The citizen members
shall be confirmed by the Senate and the House ofRepresentatives
under KRS 11 .160, and the commissioner of education shall serve
as a nonvoting ex officio member. Citizen council members shall
be selected from a list of nominees provided to the Governor under
the nominating process set forth in KRS 164 .005 . If the General
Assembly is not in session at the time of the appointment, persons
appointed shall serve prior to confirmation, but the Governor shall
seek the consent of the General Assembly at the next regular
session or at an intervening extraordinary session if the matter is
included in the call of the General Assembly .
(Emphasis added.)
C . The Main Issue and the Standard of Review.
KRS 164 .011(1) clearly purports to require Fox to be confirmed by both
chambers of the General Assembly. This bicameral confirmation requirement
goes to the heart of Fox's complaint . Essentially, Fox argues that the bicameral
confirmation requirement for members of the CPE contained in KRS 164.011(1)
violates § 93 of the Kentucky Constitution . In Fox's view, § 93 permits only the
Senate to confirm appointees . By contrast, the Governor contends the phrase
in § 93 regarding confirmation by the Senate is merely illustrative of how
appointees such as Fox could be confirmed; but the phrase was not meant to
preclude confirmation by both chambers of the General Assembly . We agree
with Fox.
Although the parties, oddly, do not focus upon it, the procedural stance
of this appeal does not require us to determine as a matter of law whether Fox
should prevail in her quest to regain her seat on the CPE. We see the question
properly before us as far narrower : did the trial court err by granting the
Governor's CR 12 .02 motion to dismiss Fox's complaint for failure to state a
claim upon which relief may be granted? In other words, our conclusion that
§ 93 prohibits bicameral confirmation does not end this case because little or
no proof was adduced at the trial court level before the Governor filed his
motion to dismiss ; and Fox never filed a dispositive motion before the trial
court. The Governor has not even filed an answer to Fox's complaint. On
remand, the Governor and Miller may raise whatever other defenses or legal
reasons they believe preclude Fox from regaining her seat on the CPE; and Fox
may present whatever evidence or legal arguments she deems necessary to
convince the trial court to order her CPE seat to be restored to her.
A motion to dismiss for failure to state a claim upon which relief may be
granted "admits as true the material facts of the complaint."17 So a court
should not grant such a motion "unless it appears the pleading party would
not be entitled to relief under any set of facts which could be proved . . .
."18
Accordingly, "the pleadings should be liberally construed in the light most
favorable to the plaintiff, all allegations being taken as true."19 This exacting
standard of review eliminates any need by the trial court to make findings of
fact; "rather, the question is purely a matter of law. Stated another way, the
17
18
19
Upchurch v. Clinton County, 330 S.W .2d 428, 429-30 (Ky. 1959) .
Pari-Mutuel Clerks' Union ofKentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey
Club, 551 S.W.2d 801, 803 (Ky. 1977) .
Morgan v. Bird, 289 S.W.3d 222, 226 (Ky.App . 2009) .
court must ask if the facts alleged in the complaint can be proved, would the
plaintiff be entitled to relief?" 20 Since a motion to dismiss for failure to state a
claim upon which relief may be granted is a pure question of law, a reviewing
court owes no deference to a trial court's determination ; instead, an appellate
court reviews the issue de novo.21 Of course, in determining de novo whether
Fox's complaint stated a claim upon which relief may be given, "we must give
words [in the Kentucky Constitution] their plain and ordinary meanings ."22
D. Plain Meaning of § 93 .
The plain and ordinary meaning of "which may include a requirement of
consent by the Senate" appears to be straightforward at first blush : the
General Assembly may, in its discretion, choose to make inferior state officers
and members of the various applicable state boards and commissions subject
20
21
22
James v. Wilson, 95 S.W.3d 875, 884 (Ky.App. 2002) .
Morgan, 289 S .W.3d at 226 ("It is well established that a court should not dismiss
an action for failure to state a claim unless the pleading party appears not to be
entitled to relief under any set of facts which could be proven in support of his
claim. In ruling on a motion to dismiss, the pleadings should be liberally
construed in the light most favorable to the plaintiff, all allegations being taken as
true. Therefore, the question is purely a matter of law. Accordingly, the trial
court's decision will be reviewed de novo.") (citations and internal quotation marks
omitted) .
Fox appended to her complaint various documents, such as letters, her resume,
etc. CR 12 .02 provides that a motion to dismiss under that rule shall be deemed to
be a motion for summary judgment under CR 56 if "matters outside the pleading
are presented to and not excluded by the court . . . ." The parties do not really
address whether the documents attached to Fox's complaint converted the
Governor's motion to a summary judgment motion under CR 56. We need not
definitively resolve this issue because our conclusion would not be changed if we
applied the summary judgment standard provided in CR 56 .03 under which a
party is entitled to summary judgment if there is "no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law."
Freeman v. St. Andrew Orthodox Church, Inc., 294 S .W.3d 425, 428 (Ky. 2009) .
10
to a confirmation in the Senate. In other words, all the plain language of the
pertinent part of § 93 seems to do is grant the Senate a right to confirm
nominees . Conversely, there is nothing in the plain language of § 93 that
permits the House to have any role in the confirmation vote. Undeniably, the
House is not even mentioned in § 93 . We cannot dismiss the notable omission
of language specifically referencing the House as a mere accidental oversight.
It is well settled law that a court may not add language to the written law to
achieve a desired result. 23 And the conspicuous absence of any mention of the
House having a role in the confirmation process could, therefore, be construed
as a definite signal that there was no intent for that chamber to participate in
the confirmation process .
An argument could be made that the plain language of § 93 evidences
that nominees may only be subjected to confirmation by the Senate. Such a
conclusion would be in accordance with the logic expressed by our country's
most famous jurist, Chief Justice John Marshall, in his most famous opinion:
"[a]ffirmative words are often, in their operation, negative of other objects than
those affirmed . . . ."24 Likewise, another Chief Justice of the United States,
William Howard Taft, used similar logic in interpreting a treaty: "[t]here
23
24
Cf. Beckham v. Board of Educ. ofJefferson County, 873 S.W.2d 575, 577 (Ky. 1994)
("We are not at liberty to add or subtract from the legislative enactment nor
discover meaning not reasonably ascertainable from the language used.") ; Mills v.
City ofBarbourville, 273 Ky. 490, 117 S.W.2d 187, 188 (1938) ("The cardinal rule in
construing statutes is, if possible, to ascertain the meaning of the Legislature from
the language used, and if that be plain, clear, and unambiguous, resort to
collateral rules of construction is unnecessary.") .
Marbury v. Madison, 5 U.S. 137, 174 (1803) .
certainly are no express words granting such [a construction] . Why should it be
implied? If it was intended by the parties why should it not have been
expressed?"2s
Following that line of thought, one could ask: since there is no language
even mentioning the House in § 93, how can a reviewing court imply that it
exists? In other words, for the Governor's arguments to succeed, the clause of
§ 93 at issue should logically read, "which may include a requirement of
consent by the Senate or House of Representatives ."
When the Governor's arguments and citations to authority are fully
considered, however, the superficial clarity of § 93 appreciably dims. In truth,
close examination of the relevant language appears to reveal a latent
ambiguity. So we must consider all of the relevant accompanying facts,
circumstances, and laws, including the time-honored canons of construction,
in order to interpret § 93 properly.
E. Ambiguity and the Maxim of Interpretation Expressio Unius.
"It is a familiar and general rule of statutory construction that the
mention of one thing implies the exclusion of another . . . . "26 This basic tenet
of statutory construction is usually referred to by the Latin phrase expressio
2s
26
Ford v. United States, 273 U.S. 593, 611 (1927) .
Jefferson County v. Gray, 198 Ky. 600, 249 S .W. 771, 772 (1923) .
The maxim may also be used to interpret or construe constitutional provisions .
See 2A NORMAN J. SINGER 8s J.D. SHAMBIE SINGER, SUTHERLAND STATUTES AND
STATUTORY CONSTRUCTION § 47 :24 (7th ed. 2009) ("The maxim has been employed in
the interpretation of constitutions . . . . ") .
12
unius est exclusio alterius . 27 Often that maxim is shortened to expressio unius.
Of course, like all canons of construction, expressio unius is not useful in every
case. And we do not resort to canons of interpretation if the meaning of the
law is clear.28
As explained, however, the relevant portion of § 93 is ambiguous, at least
as applied to situations like the one at hand . So we will use expressio unius,
but "only as an aid in arriving at [legislative] intention, and not to defeat it." 29
Because the expressio unius maxim is only a rule of construction, and not
substantive law, we must use it only "`when . . . that which is expressed is so
set over by way of strong contrast to that which is omitted that the contrast
enforces the affirmative inference that that which is omitted must be intended
to have opposite and contrary treatment. "'30 In other words, expressio unius is
most helpful when there is a strong, unmistakable contrast between what is
expressed and what is omitted.
Use of the expressio unius maxim is particularly appropriate in this case
because, even under an expansive reading of § 93, a very small number of
possibilities exists - three, to be exact - regarding how the General Assembly
27
28
29
30
See, e.g., Jefferson County, 249 S.W. at 772 (using Latin phrase) .
See, e.g., King Drugs, Inc. v. Commonwealth, 250 S.W.3d 643, 645 (Ky. 2008) ("Only
if the statute is ambiguous, however, or otherwise frustrates a plain reading, do we
resort to the canons or rules of construction . . . .") ; 16 C.J .S. Constitutional Law
§ 62 (2009) ("Neither rules of construction nor rules of interpretation may be used
to defeat the clear and certain meaning of a constitutional provision . . . . There is
no occasion for construction where the language is plain and definite . . . . ") .
Jefferson County, 249 S .W. at 772 .
Union Light, Heat & Power Co. v. Louisville & N. R. Co., 257 Ky. 761, 79 S.W.2d 199,
202 (1935), quoting Ford, 273 U.S . at 611 .
13
may determine how appointees such as Fox may be confirmed . 3 1 First, § 93
could be construed to provide that the General Assembly may pass legislation
providing that the Senate alone is vested with the power to confirm a particular
type of appointee.32 Second, § 93 could be interpreted to provide that the
General Assembly could pass legislation providing that the House alone could
be vested with the power to confirm a particular type of appointee.33 Third,
§ 93 could be interpreted to provide that the General Assembly could pass
legislation requiring both the Senate and the House each to confirm a
particular type of appointee .
An unmistakable difference appears among those three possibilities . Use
of one approach necessarily precludes use of one of the remaining two because
a statute cannot, for example, provide in one section that an appointee should
be confirmed by the Senate alone while stating somewhere else that that same
appointee is subject to both House and Senate confirmation. The limited
number of possible constructions of § 93 and the exclusivity and vast
difference among the other possible constructions makes this case an ideal
situation to apply the expressio unius maxim .
31
32
33
Of course, since not all appointed state employees must undergo the confirmation
process, the three choices presuppose that the General Assembly has enacted
legislation requiring the appointee in question to be confirmed to the position to
which appointed.
There are several statutes that use this approach. Among those statutes are
KRS 342 .230(3) (workers' compensation administrative law judges) ;
KRS 121 .110(1) (members of Kentucky Registry of Election Finance) ; and
KRS 131 .315(1) (members of Kentucky Board of Tax Appeals) .
We are aware of no statute employing this approach . But we agree with Fox's
contention that the General Assembly would have the power to use that approach
if we accepted the Governor's position .
14
We recognize, as the Governor argues, the United States Supreme Court
has held that phrases such as "may include" are not well-suited to
interpretation by use of expressio unius because the phrase "may include" is
"expansive . . .
."34
But the differences between what was expressed and what
was not were not as clear in the authorities relied upon by the Governor . The
Supreme Court itself recognized that expressio unius was inapplicable in
Chevron USA, Inc., because, among other reasons, the range of possibilities if
expressio unius were used was vast. In fact, the Court held that "that there is
no apparent stopping point" if it applied expressio unius to the statute under
construction .3s
Likewise, our decision in Cornelison v. Commonwealth,36 greatly relied
upon by the Governor, is similarly distinguishable. In Cornelison, a defendant
argued that error occurred when a police officer was permitted to testify during
a sentencing hearing about the effect good-time credit would have on a
potential sentence . 37 On appeal, Cornelison argued the officer's good-time34
35
36
37
Chevron USA, Inc. v. Echazabal, 536 U.S. 73, 80 (2002) ("Far from supporting
Echazabal's position, the expansive phrasing of `may include' points directly away
from the sort of exclusive specification he claims.") .
Id. at 83-84 ("There is even a third strike against applying the expression-exclusion
rule here. It is simply that there is no apparent stopping point to the argument
that by specifying a threat-to-others defense Congress intended a negative
implication about those whose safety could be considered . When Congress
specified threats to others in the workplace, for example, could it possibly have
meant that an employer could not defend a refusal to hire when a worker's
disability would threaten others outside the workplace? If Typhoid Mary had come
under the ADA, would a meat packer have been defenseless if Mary had sued after
being turned away?") .
990 S.W.2d 609 (Ky. 1999) .
Id. at 610.
credit testimony was improper because KRS 532 .055 listed several items of
evidence that the Commonwealth could offer relevant to sentencing; but that
statute did not mention good-time credit.
We rejected Cornelison's argument that the expressio unius maxim
should apply, holding that "the list [in KRS 532 .055] is illustrative rather than
exhaustive ."38 But, as with Chevron USA, Inc., our decision in Cornelison
seems to have been at least partly based upon the potentially vast array of
evidence that could properly be relevant to a sentencing determination. We
held that good-time-credit-related evidence was "no less relevant nor more
speculative than" another type of evidence listed in the statute . 39 In other
words, the inclusion of types of evidence expressly deemed admissible by the
statute did not lead to the logical conclusion that all other types of evidence
were inadmissible, especially in light of the fact that one of the purposes of
KRS 532 .055 was to ensure a well-informed jury. In the case at hand,
however, the list of potential, rational interpretations of § 93 is very short; and,
accordingly, the inclusion of language permitting the Senate to confirm
nominees leads to a strong presumption that the House was intentionally
excluded from the confirmation process.
Also, Chevron USA, Inc., relied upon by the Governor, is distinguishable
because the Supreme Court found in that case that "language suggesting
exclusiveness is missing" from the statute being construed (part of the
3s
39
Id.
Id. at 611 .
Americans with Disabilities Act) .40 In the case at hand, since there are only, at
most, three rational interpretations of the pertinent language of § 93, the
express language setting forth one of those three possibilities gives rise to a
strong presumption that the other two possibilities were intentionally excluded .
In short, the fact that there are only three rational, yet completely
discrete, ways of interpreting the relevant language of § 93 means that the
expression of one of those choices (confirmation by the Senate) carries great
weight in implying that the other choices (confirmation by the House, either
alone or acting along with the Senate) were intentionally excluded.
As one esteemed treatise on statutory construction notes, "[t]here is
generally an inference that omissions are intentional. This rule is based on
logic and common sense . It expresses the concept that when people say one
thing they do not mean something else."41 Another leading treatise agrees,
stating, "the enumeration of certain specified things in a constitutional
provision will usually be construed to exclude all things not enumerated." 42
We conclude, therefore, that the application of the expressio unius interpretive
maxim works logically in this case and that the application of that maxim leads
to a reasonable conclusion that the Senate alone has the constitutional
confirmation power under § 93 . We may not properly infer from utter silence a
concomitant power for the House.
40
41
536 U.S . at 81 .
2A SINGER 8. SINGER, supra, § 47 :25 (footnote omitted) .
42
16 C.J.S. CONSTITUTIONAL LAW § 64 (2009) .
17
This conclusion does not end our inquiry because the Governor raises
several arguments that he contends do, nevertheless, afford the House a role in
the confirmation process even though that body is not expressly mentioned in
§ 93 .
F. Historical Analysis of. Confirmation Process.
According to the Governor, the historical arc of the constitutional
treatment of confirmation of state officers shows that the 1992 amendments
were meant to depart from a Senate-only confirmation process . We disagree.
The Governor correctly points out that the framers of our 1891
Constitution rejected a proposed section that would have required all nonconstitutionally mandated state officers to have been confirmed by the Senate .
More specifically, the framers deleted a proposed section that would have
provided, in relevant part, that the Governor "shall appoint, with the advice
and consent of the Senate, all state officers who are not required by this
Constitution, or the laws made thereunder, to be elected by the people."43 The
Governor argues that this deletion shows that "the framers of Kentucky's most
recent constitutions have departed from a framework in which exclusive Senate
confirmation is constitutionally required of all inferior state officers ."
We are not convinced . The Governor is correct when he notes that the
delegates to the 1890 Constitutional Convention did vote to delete a proposed
constitutional section that would plainly have required senatorial confirmation
43
see IV OFFICIAL REPORT OF THE PROCEEDINGS AND DEBATES IN THE CONVENTION, 5728
(1890) .
18
of gubernatorial appointments .44 But the Governor has pointed to nothing
concrete that shows that deletion was aimed at allowing the House to have
confirmation powers. Rather, as we have recognized in an earlier case, the
section requiring senatorial confirmation was deleted only in order to permit
the General Assembly to "determine[] by legislative enactment [which inferior
state officers] should be subject to such senate consent ." 45
As Delegate Charles J. Bronston of Fayette County pointed out to his
fellow delegates in 1890, the section requiring senatorial confirmation of all
appointees, which was later deleted, was originally intended only to permit the
Governor to appoint the state Librarian.46 The delegates instead wanted to
retain the more general language of what ultimately became § 93 in order to
allow the General Assembly to have flexibility in determining whether inferior
state officers should be elected or appointed . As Delegate Bronston argued,
requiring legislative confirmation of all appointees "would disturb that settled
principle which, we believe, has been approved by the people, that as to all
these subordinates, it should be left to the power of the General Assembly to
say whether they should be elected or appointed . . . ."47 So we disagree with
the Governor's argument that the delegates to the 1890 Constitutional
44
45
46
47
Kraus v. Kentucky State Senate, 872 S.W.2d 433, 437 (Ky. 1994) .
at 5728 ("We,
of the Committee, were fully aware that at the time section 76 [requiring senatorial
confirmation of all state officers] was adopted, it was thought important to allow
the Governor to appoint the Librarian . It was not understood at that time that the
appointing power should be extended to any other official save that.") .
IV OFFICIAL REPORT OF THE PROCEEDINGS AND DEBATES IN THE CONVENTION
Convention clearly wanted to take the confirmation power from the Senate
alone; instead, the official records of that Convention show that the delegates
voted to delete the section requiring senatorial confirmation only to give the
General Assembly flexibility in determining which inferior state officers must be
subjected to confirmation at all.
We also do not agree with the Governor that the current version of § 93,
as amended, reflects a conscious desire to move away from a Senate-only
confirmation process. The language of § 93 belies such a construction .
.
Although when it was originally adopted, § 93 did not contain a clause
directly pertaining to senatorial confirmation, the 1992 amendments to § 93
added the Senate-only confirmation language to our current constitution . So
even if we assumed, solely for purposes of argument, that § 93, as originally
adopted, did not vest the Senate with the exclusive right to confirm
gubernatorial appointees, the 1992 amendments to § 93 were an unmistakable
about-face from any purported retreat from Senate-only confirmation power.
Since Fox convincingly argues that Kentucky has never in its constitutional
history afforded the House confirmation powers, it logically follows that the
framers of § 93 would have used clear language specifically permitting the
House to have a role in the confirmation process if the framers had intended to
enact such a sweeping change.
Perhaps the clearest indication that there was no intent for § 93, as
originally enacted, to afford the House a role in the confirmation process is the
General Assembly's enactment of legislation (since repealed) in 1893 - hard on
the heels of the adoption of the present Constitution - that provided, in
relevant part, that "[u]nless otherwise provided, all persons appointed to an
office by the Governor, whether to fill a vacancy, or as an original appointment,
shall hold office, subject to the advice and consent of the Senate, which body
shall take appropriate action upon such appointments at its first session held
thereafter. "48 Nothing in that statute afforded the House the right to confirm
nominees . In reality, the opposite is true because the statute clearly
contemplated confirmation only by the Senate.
G. The Word Mau.
This desire to preserve the General Assembly's flexibility to determine
which state officers must be subjected to the confirmation process also
explains the use of the much-discussed word may in the 1992 amendments to
§ 93.49 The Governor contends that since the word may is permissive and nonexclusive, the provision in § 93 providing that appointees may be subject to
confirmation by the Senate is properly construed as being illustrative of how
confirmation can occur. Although we agree with the Governor that may is
48
49
Sewell v. Bennett, 187 Ky. 626, 220 S.W. 517, 519 (1920) (quoting former § 3750 of
the Kentucky Statutes and noting that statute was passed in 1893) .
As previously quoted, § 93 provides that inferior state officers and members of
boards and commissions "may be appointed or elected, in such manner as may be
prescribed by law, which may include a requirement of consent by the
Senate . . . ."
21
generally a permissive term, we disagree that the use of that word in § 93
means that the House has the right to confirm appointees .
Of course, as the Governor correctly points out, the word may generally
signifies something as being permissive in nature in contrast to the word shall,
which generally signifies something being mandatory.-50 It is also evident from
the Constitutional Debates of 1890 that a proposed section of the Constitution
requiring senatorial confirmation of all inferior state officers was deleted in
favor of the more general language in § 93 (as originally enacted) in order to
provide the General Assembly with as much leeway as possible to determine
which state officers would be subject to senatorial confirmation . 51 The most
logical conclusion, therefore, is that the term may in § 93 signifies only that the
General Assembly has the permissive discretion to choose which gubernatorial
appointees must be subjected to a confirmation .
In other words, absent some constitutional prohibition against doing so,
appointees, like Fox, may be subject to confirmation if the General Assembly so
directs, or appointees may be permitted to serve without ever having to be
confirmed, if the General Assembly has not directed to the contrary . Either
50
51
See, e.g., Alexander v. S & M Motors, Inc., 28 S .W.3d 303, 305 (Ky. 2000) ("Not only
have Kentucky courts long construed `may' to be a permissive word, rather than a
mandatory word, but our legislature has given guidance in this regard. When
considering the construction of statutes, KRS 446.010(20) provides that `may' is
permissive, and `shall' is mandatory.") .
See IV OFFICIAL REPORT OF THE PROCEEDINGS AND DEBATES IN THE CONVENTION at 5728
(Delegate Bronston stating that the section requiring the Senate to confirm all
gubernatorially appointed state officers should be deleted, among other reasons,
because that mandatory confirmation section "would disturb that settled principle
which, we believe, has been approved by the people, that as to all these
subordinates, it should be left to the power of the General Assembly to say whether
they should be elected or appointed . . . .") .
22
way is generally permissible under § 93 . But we have not been shown evidence
that the use of the term may in § 93 is evidence that the House has the
constitutionally authorized ability to confirm nominees .
Indeed, the relative silence of our present Constitution, as originally
enacted, regarding how (or if) appointees such as Fox would be confirmed led to
Kraus v. Kentucky State Senate52 - the court case that likely was the impetus
for the 1992 amendments to § 93 .
H. Kraus v . Kentuckzj_State Senate.
.
v
As stated, § 93 of our current Constitution, as originally enacted, was
silent on whether the Senate or even the House had the power to confirm
inferior state officers . This constitutional silence resulted in a landmark
decision from this Court .
In 1990, David Kraus was appointed to be an administrative law judge
(AI,J) in the Kentucky Workers' Compensation system.-53 The Senate, however,
rejected Kraus's nomination .54 Kraus then filed an action challenging the
constitutionality of the statute that granted the Senate the right to confirm
nominees such as he . In 1991, the circuit court ruled that the statute was
52
53
54
872 S.W.2d 433.
Consistent with the law at the time, the appointment was made by the Workers'
Compensation Board, not the governor. Id. at 435. Current law gives the governor
the power to appoint Workers' Compensation ALJs, subject to the Senate's
consent. See KRS 342.230(3) .
Kraus, 872 S.W.2d at 435.
23
constitutional . Kraus appealed to the Court of Appeals . 55 Ultimately, late in
1992, the Court of Appeals affirmed the circuit court's decision. This Court
granted discretionary review and eventually affirmed the Court of Appeals .
Kraus had argued on appeal, as the Governor argues in this case, that
"the Senate does not have the authority to advise and consent because the
[1890] constitutional convention amended and deleted mandatory `advice and
consent' language from Section 76 of the Constitution ." 56 We ultimately
rejected Kraus's argument, just as we now reject the Governor's argument in
the case at hand, because the proposed mandatory confirmation language "had
to be changed into the general terms which permitted Senate consent to any
inferior state official that the General Assembly determined by legislative
enactment should be subject to such [S]enate consent."57 In other words, as
stated before, the proposed mandatory confirmation language was deleted in
1890 in order for the General Assembly to preserve its discretion to determine
precisely which inferior state officers - instead of all state officers - it wanted
to be subjected to a confirmation vote.
This Court took definite note in Kraus of the fact that numerous statutes
provide for executive appointment of state officers "subject to Senate and/or
House approval ."58 And we relied in Kraus upon the fact that this Court or its
55
56
57
58
These timelines are available for public viewing by placing the correct identifying
case information (i.e., David Kraus as the name of the litigant) at the following
website : http://apps. courts . ky.gov/Appeals/COA Dockets.shtm .
872 S.W.2d at 437 .
Id. at 437 .
Id.
24
predecessor had issued many decisions "acknowledg[ing] that the Senate has
the power to consent to the appointment of inferior state officers ."59 So this
Court rejected Kraus's arguments and affirmed the lower courts because we
had reached a "conclusion that the Senate has the inherent power to advise
and consent on executive branch appointments of inferior state officers ." 60
But during the length of the 1992 General Assembly's regular session,
the separation of powers questions raised by Kraus awaited a final answer in
the appellate courts . And it requires no blind leap of faith to infer that
securing the Senate's role in the confirmation process was the context from
which some relevant part of SB 226 arose . This logical inference did not
escape the Governor's notice in the case at hand : he mentions it in his brief.61
So we agree with the Governor's conclusion that the relevant amendment to
§ 93 "was offered to prospectively settle . . . [Kraus's] separation-of-powers
question" and to "remove[] all doubt that the `manner' of appointing inferior
officers to be `prescribed by law"may include a requirement of consent by the
Senate . "'62
59
60
61
62
Id. at 438.
The Governor correctly notes that "[i]n 1992, during the litigation of the Kraus case
discussed above, the General Assembly drafted, passed, and proposed an
amendment to Section 93 of the Kentucky Constitution ."
The wisdom of adding failsafe language to § 93 to preserve the Senate's right to
confirm nominees is proven by the fact that this Court's decision upholding the
Senate's inherent right to confirm nominees such as Kraus was not a unanimous
decision . See 872 S .W. 2d at 440-41 (dissenting opinion of Justice Lambert, joined
by Justice Combs) .
25
Acceptance of this premise, however, actually undermines the Governor's
position in the case. If we accept the premise that the framers of the revisions
to § 93 were motivated to amend the constitution to thwart Kraus's
constitutional challenges, then the framers should only have logically been
concerned with the Senate's power to confirm nominees because Kraus's
lawsuit did not present any issue involving the House in the confirmation
process because Kraus was not subject to confirmation in the House. In other
words, the deliberate words chosen by the General Assembly in SB 226, which
became the proposed amendments to § 93, reflected concern about senatorial
confirmation rights because that was all that was at issue in Kraus. So the
Governor's argument is unpersuasive to the extent that it relies upon the thenunresolved Kraus appeal to prove that the General Assembly intended the
amendments to § 93 to permit the House constitutionally a role in confirming
executive appointments .
Kraus is important to the case at hand for reasons beyond supplying the
historical context for SB 226 and the 1992 amendments to § 93. First, as
previously discussed, our decision in Kraus provides compelling precedent for
us to reject the Governor's argument that the constitutional convention's
decision to delete proposed language requiring mandatory confirmation by the
Senate for all appointees means that the House is constitutionally authorized
to have a role in the confirmation process . Second, analysis of our decision in
Kraus affords us the opportunity to correct some unfortunately imprecise
language in that opinion . Specifically, we stated in a clause the Governor relies
upon that "for more than the last one hundred years, the independent
branches of government have recognized that the General Assembly has
authority to confirm nominations from other branches of government ." 63 To be
accurate, what we should have said was that history shows that the Senate's
right to confirm nominees has long been recognized .
Toward the beginning of our opinion, we noted that "the House is not
involved in the confirmation process" for Kraus. 64 It is clear that the issue in
Kraus involved only whether the Senate had the inherent authority to confirm
(or reject) certain executive appointments . The question of whether the House
was constitutionally permitted to play any role in confirming nominees such as
Kraus was not at issue . Even the first sentence of our opinion in Kraus says
that "David L. Kraus challenges the authority of the Kentucky State Senate to
grant to itself the power to consent to the employment . . . of an Administrative
Law Judge . . .
."65
It is obvious, therefore, that we painted with too broad a brush in Kraus
when we referred to a purported historical recognition of the General
Assembly's authority to confirm nominees . To the contrary, Fox has ably and
conclusively shown in this case that Kentucky's history provided for
63
64
65
Id. at 437 (emphasis added) .
Id. at 435.
Id. at 434 (emphasis added) .
27
confirmation by the Senate alone . 66 So, in Kraus, we did not need to discuss
what role the House could, or could not, play in confirming nominees .
Close scrutiny of our opinion in Kraus reveals that we did not intend to
confer confirmation rights upon the House, our unfortunately broad language
notwithstanding. Instead, when our opinion is examined carefully, it appears
evident that we mentioned the House in Kraus in passing only to point out,
without comment, that some statutes then-existing provided "for executive
appointments subject to Senate and/or House approval."67 We used imprecise
language when we stated that other branches of Government have historically
recognized the General Assembly's right to confirm nominees . To our
knowledge, Fox's action is the first challenge to the recently enacted statutes
purporting to give the House a role concomitant with the Senate's role in the
confirmation process . The question of what role, if any, the House may
permissibly take in the confirmation process was not before us in Kraus; and
nothing in that opinion should be interpreted to stand for a ruling by us that
the House is constitutionally entitled to play a role in the confirmation process.
66
67
We have already quoted our former state constitutions that unequivocally
authorized the Senate alone to confirm nominees, and we will not belabor this
opinion with all the additional citations provided by Fox for this proposition. But
suffice it to say that we generally agree with her assertion that Kentucky has a
largely "unbroken practice . . . of almost 200 years . . . of authorizing only the
Senate to exercise a power of confirmation ."
Id. at 437 .
I . Contemporary Construction, Statutes Permitting the
House to Perform a Role in the Confirmation Process,
and the Ballot Question Prepared by the Secretary of State .
As noted in our discussion of Kraus, there are several recent statutes
that clearly afford the House a role equal to the Senate in the confirmation
process. The Governor relies heavily upon those'statutes to buttress his
argument that § 93 was intended to - and actually does - afford the House a
role in the confirmation process.
KRS 11 .160, which provides the general framework for the confirmation
of gubernatorial appointments, was first enacted in 1990 . As originally
enacted, it did not mention confirmation by the House . 68 In 1992, however, the
General Assembly amended KRS 11 .160 to specify the manner of confirmation
of appointees who were statutorily required to be confirmed by both the House
and the Senate . 69 The addition in 1992 of language pertaining to the House
having a defined role in the confirmation of appointees was done in the same
legislative session in which the General Assembly passed, and thereby
presented to the electorate, SB 226 and the amendments to § 93 at hand.
The Governor argues that this contemporaneous recognition of bicameral
confirmation requirements in KRS 11 .160 is entitled to great weight in
interpreting the 1992 amendments to § 93. We agree, of course, that
contemporaneous legislative explanation or clarification of a constitutional
68
69
1990 Ky. Acts, Ch. 505 (S.B. 176) .
1990 Ky. Acts, Ch. 415 (S .B . 107), § 1(2) .
29
provision should ordinarily be given deference by a reviewing court. 7° But we
disagree with the Governor's ultimate assertion that the enactment of statutes
purporting to specify the manner of bicameral confirmation of appointees
nullifies clear constitutional language to the contrary. Obviously, because "the
constitution controls any legislative act repugnant to it[, ]"71 no statute can
validly direct or authorize the performance of an unconstitutional act. 72
It appears that there were at least two statutes requiring bicameral
confirmation of gubernatorial nominees existing before the 1992 amendments
to § 93 . In 1990, for example, the General Assembly created the State Board
for Elementary and Secondary Education.73 The act creating that Board,
currently codified at KRS 156.029, requires the eleven Board members to be
appointed by the Governor and confirmed by both the Senate and the House . 74
Also, in 1990, as part of the same act that created this State Board for
Elementary and Educational Education, the General Assembly also created the
Council for Education Technology .75 The nine members of that Board were
also required to be appointed by the Governor and confirmed by both the
Senate and the House . 76 But in 1992, the General Assembly repealed the
70
71
72
73
74
7s
76
See, e.g., Coleman v. Mulligan, 234 Ky. 691, 28 S .W.2d 980, 981 (1930) .
Marbury, 5 U.S. at 177.
See, e.g., Commonwealth v. Barroso, 122 S.W.3d 554, 558 (Ky. 2003) ("As a general
proposition, constitutional rights prevail over conflicting statutes and rules .") .
Ky. Acts 1990, Ch. 476, Pt. II, § 35 .
Id. KRS 156 .029(1) still requires bicameral confirmation of Board members.
Ky. Acts 1990, Ch. 476, Pt. I, § 21 .
Id.
30
section of the KRS covering the Council for Education Technology .77 In its
place, the General Assembly created a new Council for Education Technology .78
But that new Technology Council consisted of several ex officio members and
eight members appointed by the Governor . 79 Notably, however, that bill did not
require those eight appointed members to be confirmed by either the House or
the Senate .
It is important to note that when those statutes providing for bicameral
confirmation were enacted in 1990, the Constitution had not been amended to
preclude the House from having a role in the confirmation process . Nor had
the amendment to § 93 specifically giving the Senate alone the right to confirm
nominees been ratified by the people when, in 1992, the General Assembly
amended KRS 11 . 160(2) to specify the bicameral confirmation procedures.80
It is apparent that the General Assembly, the body that originally drafted
the amendments to § 93 at issue, had already shown its ability and willingness
to put specific language in legislation requiring appointees to be confirmed by
both the Senate and the House . Tellingly, however, the General Assembly
chose not to put specific language in the relevant amendments to § 93 that
would have required, or at least authorized, the House to confirm appointees .
We are unwilling to assume that the General Assembly omitted reference
to the House in § 93 by oversight . Instead, we agree with Fox that the absence
77
78
79
80
Ky. Acts 1992, Ch. 195, § 15 .
Id. at § 8.
Id.
Ky. Acts 1992, Ch. 415, § 1(2).
31
of language mentioning the House in § 93 should rationally be interpreted as a
conscious decision by the General Assembly not to include the House in
confirming nominees .
Although not memorialized in a statute, there are, in fact, some
indicators that the contemporaneous construction of the 1992 amendments to
§ 93 envisioned only senatorial confirmation . First, the May 4, 1992,
Legislative Record,
a newspaper-style summary of Kentucky legislative
activities edited and published by the Legislative Research Commission (LRC)
(an entity charged with assisting the General Assembly), contains the steps
that SB 226 took along the path to being enacted by both legislative chambers.
That
Legislative Record
also contains a summary of SB 226. That summary
states that one aspect of SB 226 was to "authorize appointment of members of
boards and commissions with the consent of the Senate . . . ."81
The bill log
for the House Committee on Elections and Constitutional Amendments likewise
summarizes SB 226, in pertinent part, as a proposal "to amend Section 93
to . . . authorize appointment of members of boards and commissions with
consent of the Senate . . .
81
82
."82
These are, therefore, at least two
Legislative Record, May 4, 1992 (Vol. 20, No. 102, Regular Session), p. 37 .
Neither the Legislative Record nor the bill log was provided to us by the parties. We
may, however, properly sua sponte consider documents available to the general
public. See, e.g., Polley v. Allen, 132 S.W.3d 223, 226 (Ky.App. 2004) ("A court may
properly take judicial notice of public records and government documents,
including public records and government documents available from reliable
sources on the internet ."). These documents are available to the general public
from the LRC upon request.
32
contemporaneous indications that the General Assembly contemplated only the
Senate having the ability to confirm (or reject) appointments such as Fox's.83
Of course, the General Assembly has the ability to propose amendments
to our Constitution ; but those amendments must be ratified by the electorate.
As our predecessor-Court memorably held, "[i]n the ultimate sense, the
legislature does nothing unless and until the people ratify and choose to give
the revised constitution life by their own direct action ."84 Indeed, § 256 of our
Kentucky Constitution provides that after appropriate passage of a proposed
amendment by the General Assembly, "such proposed amendment or
amendments shall be submitted to the voters of the State for their ratification
or rejection . . . ." Obviously, therefore, the will of the people regarding
constitutional amendments is paramount. Because the electorate has an
inviolable right to be informed of all proposed constitutional amendments upon
which it will pass judgment, § 257 of our Kentucky Constitution provides, in
relevant part, that "[beefore an amendment shall be submitted to a vote, the
Secretary of State shall cause such proposed amendment, and the time that
the same is to be voted upon, to be published at least ninety days before the
vote is to be taken thereon . . . ."
Of great assistance to our determination of this matter is the actual
question the Secretary of State directed the county clerks to place on the ballot
83
84
The LRC's website still summarizes the relevant portions of S.B. 226 as containing
a proposal "to amend Section 93 to . . . authorize appointment of members of
boards and commissions with consent of the Senate . . . ." See http://www.lrc.ky.
gov/ recarch/ 92rs/bills/sb22 6. htm.
Gatewood v. Matthews, 403 S .W.2d 716, 720 (Ky. 1966) .
33
in 1992 . Since proposals to our Kentucky Constitution are "nothing" until a
majority of the electorate gives the amendment "force and effect[,]"85 what could
be more critical to our decision than reading the actual question presented to
the voters of Kentucky? So we granted Fox's request to supplement the record
with a copy of the Secretary of State's official certification of the ballot question
at hand.
In pertinent part, the ballot question presented to the voters86 asked
them whether they were in favor of "permitting the General Assembly to require
the Senate's consent to the selection of inferior state officers and members of
boards and commissions . . . . .. (Emphasis added .) Unlike previous proposed
amendments that have spawned lawsuits challenging the form of the ballot
question,87 we have been cited to no actions, nor are we independently aware of
any, that were filed to contest the sufficiency or accuracy of the ballot question
in this case.
85
86
87
Gatewood, 403 S.W.2d at 721 .
Current law permits the General Assembly or the Attorney General to prepare a
document stating the substance of the proposed constitutional amendment "in the
form of a question in a manner calculated to inform the electorate of the substance
of the amendment." KRS 118 .415(l) 8v (2). The General Assembly did not grant to
itself the power to create this ballot question for proposed constitutional
amendments until 1994, however. Ky. Acts 1994, Ch. 461, § 1 (S.B. 185) . We
must presume, therefore, that the Attorney General prepared the 1992 ballot
question at issue.
See, e.g., Ferguson v. Redding, 304 S.W.2d 927 (Ky. 1957) (action challenging ballot
question regarding proposed amendments to, among others, § 93) ; Smith v.
Hatcher, 311 Ky. 386, 223 S . W.2d 182 (1949) (action challenging ballot question
for proposed amendments to § 246) ; Funk v. Fielder, 243 S .W.2d 474 (1951) (action
challenging ballot question for proposed amendment to § 256).
34
The question proposed to the voters plainly asked them whether they
favored giving the Senate the express authority to consent to appointments . No
reasonable voter could have construed that ballot question to mean that the
House had any right whatsoever to confirm nominees . And, of course, since
any constitutional provision "does not derive its force from the convention
which framed it, but from the people who ratified it, the intent to be arrived at
is that of the people, and it is not to be supposed that they have looked for any
. . . abstruse meaning in the words employed . . . ."88 Instead, we must accept
that the people, who, after all, were responsible for giving life to the
constitutional provision, "accepted . . . [its terms] in the sense most obvious to
the common understanding, and ratified the instrument in the belief that was
the sense designed to be conveyed . Accordingly, in construing a constitution, it
is presumed that the language has been employed with sufficient precision to
convey the intention . . .
."89
Yet the Governor's construction of § 93 would logically authorize the
House to have a role, either alone or in conjunction with the Senate, to confirm
appointments such as Fox's even though there is no mention of any role for the
House in either § 93 itself or in the ballot question prepared by the Secretary of
State . No voter reading the ballot question for the 1992 amendments to § 93
reasonably could have foreseen such a result.
8
89
16 C .J .S . CONSTITUTIONAL LAW § 59 (2009) .
Id.
35
We are aware that mainly since the 1992 amendments to § 93 were
ratified, the General Assembly has enacted new statutes, or has amended
existing statutes, to require certain nominees to be confirmed by both the
House and the Senate. 90 But, as stated before, the intent of the people who
ratified the constitutional provision must be considered the paramount
consideration in constitutional interpretation.91 And it has been conclusively
shown that no reasonable voter would have believed that voter was authorizing
bicameral confirmation (or confirmation by the House alone) by voting to
approve the 1992 amendments to § 93 . So the General Assembly's later
attempts to require bicameral confirmation of certain appointees contravenes
the will of the people, as unmistakably expressed by their approval of the
amendments to § 93 .
J . Remand for Further Proceedings is Necessary.
For the reasons we have discussed at some length in this opinion, we
agree with Fox that § 93 permits only the Senate to confirm nominees . So the
bicameral confirmation requirement set forth in KRS 164.011(1) is invalid, even
taking into account the presumption of constitutionality generally afforded to
90
91
KRS 248 .707(2)(b) (Agricultural Development Board) ; KRS 351 .1041(2)
(Mine Safety Review Commission) ; KRS 161 .028(2)(b) (Education Professional
Standards Board); KRS 164.005(1) (Governor's Postsecondary Education
Nominating Committee) ; KRS 7B .030(1)(b)(2) (Kentucky Long-Term Policy Research
Center) .
16 C.J .S. CONSTITUTIONAL LA w§ 59 (2009) .
See, e.g.,
36
statutes.92 This conclusion does not necessarily mean, however, that Fox is
entitled to return to her seat on the CPE.
As stated before, this case was early in the pleading stage when the trial
court granted the Governor's motion to dismiss for failure to state a legally
cognizable claim. Our conclusion that bicameral confirmation requirements in
statutes such as KRS 164 .011(1) are constitutionally infirm, however, leads to
the inevitable conclusion that the trial court erred by dismissing Fox's
complaint based upon its contrary interpretation of § 93 . The ultimate merits
of Fox's complaint, however, are an entirely separate matter, which the parties
have not yet had a full opportunity to either prove or defend .
The only proper question before us is whether the trial court erred by
dismissing Fox's complaint for failure to state a claim because of the purported
bicameral confirmation requirement for members of the CPE . We have
determined that the attempted bicameral confirmation requirement is contrary
to § 93 of the Constitution of Kentucky . The merits of Fox's demand that she
be restored to a place on the CPE were not fully presented to the trial court
and, consequently, are not properly before this Court on appeal . Remand is
necessary so that the parties may present their proof to advance or defend the
ultimate merits of Fox's demand .
92
See, e.g., Commonwealth v. Harrelson, 14 S.W.3d 541, 547 (Ky. 2000) ("It is
uncontroverted that a statute is presumed to be constitutional unless it clearly
offends the limitations and prohibitions of the Constitution.") .
37
IV. CONCLUSION .
We reverse the circuit court's order dismissing Virginia Fox's complaint
for the reasons discussed in this opinion, and we remand the matter to the trial
court for all necessary further proceedings .
All sitting. Noble, Scott, and Venters, JJ., concur. Abramson, J .,
concurs in result only by separate opinion . Cunningham, J., dissents by
separate opinion in which Schroder, J ., joins. Schroder, J., dissents by
separate opinion in which Cunningham, J ., joins .
ABRAMSON, J ., CONCURRING IN RESULT ONLY: I concur in result only
and write separately to state a point of fundamental disagreement with the
well-reasoned majority opinion. Specifically, I disagree with the following
observation by the majority regarding how it came to pass that the
confirmation provision in § 93, as amended in 1992, was confined to the
Senate :
We are unwilling to assume that the General Assembly
omitted reference to the House in § 93 by oversight.
Instead, we agree with Fox that the absence of
language referencing the House in § 93 should
rationally be interpreted as a conscious decision by the
General Assembly not to include the House in
confirming nominees .
Before, during and after the 1992 legislative session, the Kentucky
General Assembly has passed legislation, which provides for bicameral
confirmation of appointments to at least eight different boards and
commissions . In my view, these laws reflect a clear, good faith belief on the
part of the majority of both houses of the General Assembly that bicameral
confirmation is constitutionally permissible . Unfortunately, given the plain
wording of § 93, it is not. I firmly believe that the wording of § 93 was chosen
to address the separation of powers issue raised, and eventually addressed by
this Court, in Kraus v. Kentucky State Senate, 872 S.W.2d 433 (Ky . 1994) . In
a classic case of focusing on the tree and forgetting to see the forest, SB 226
produced a constitutional amendment which specifically recognized the Senate
confirmation provision at issue in Kraus but inadvertently undermined the
bicameral confirmation provisions which had been deliberately included in
prior legislation and which would continue to be included in laws relating to
various boards and commissions in the years that followed.
The majority is correct that this Court must construe what it has before
it and in § 93 we have language that does not admit a construction that is most
likely what the General Assembly actually intended if their prior,
contemporaneous and subsequent acts are considered . As for the idea that
their intent has been rendered of secondary import, or even irrelevant, by the
vote of the people, I cannot fully subscribe to that view. Notably, we have
entrusted to the legislature the significant responsibility of initiating the
constitutional amendment process . Ky. Const. § 256. As representatives of the
people, their intent in proposing a constitutional amendment is vital and,
therefore, it is equally vital that that intent be fully and painstakingly stated in
any ballot question . If the overarching concept of the confirmation process,
which in some instances is confined to the Senate but which in other instances
has been shared by both houses of the Kentucky General Assembly, had been
carefully considered in drafting the proposed amendment, I truly believe that
we would not have been left with the "tree" that is now before us. We have
been, however, and the language used in § 93 is so unambiguous that I can
find no defensible basis for looking beyond that clear language. Consequently,
I must reluctantly concur in result.
CUNNINGHAM, J., DISSENTING: With due respect, I dissent.
We are bound by law to adhere to a strong presumption of the
constitutionality of statutes . Analysis begins with the presumption that
legislative acts are constitutional. Cain v. Lodestar Energy, Inc., 302 S.W.3d
39, 43 (Ky. 2009) (footnote omitted) . In my opinion, this presumption has been
ignored in our holding that the "bicameral confirmation requirement" of
KRS 164.011(1) is "constitutionally infirm."
Just last year, we addressed substantial deference given to upholding the
constitutionality of statutes .
It is an axiomatic rule of statutory interpretation that
when this Court considers the constitutionality of a
statute, we must draw all fair and reasonable
inferences in favor of upholding the validity of the
statute . In Kentucky, a statute carries with it the
presumption of constitutionality; therefore, when we
consider it, "we are `obligated to give it, if possible, an
interpretation which upholds its constitutional
validity .' To the extent that there is reasonable doubt
as to a statute's constitutionality, all presumptions will
be in favor of upholding the statute, deferring to the
"voice of the people as expressed through the
legislative department of government ." A constitutional
infringement must be "clear, complete and
unmistakable" in order to render the statute
unconstitutional.
Caneyville Volunteer Fire Dept. v. Green's Motorcycle Salvage, Inc., 286 S.W .3d
790, 806 (Ky. 2009) (internal citations omitted) .
I take major issue with the statement of the majority that "there is
nothing in the plain language of § 93 that permits the House to have any role
in the confirmation vote." That provision clearly authorizes both houses of the
General Assembly to "prescribe by law" the method of Appellant's appointment
to the Council on Postsecondary Education .
This section of the Kentucky Constitution plainly states that the office in
question is to be appointed by the Governor "in such manner as may be
prescribed by law." There is no ambiguity in those words . The provision
simply broadens the representative involvement of the law-making body into
the appointment process . There is ambiguity in the words "which may include
a requirement of consent by the Senate ." In fact, the majority spends page
after page explaining what it means . In short, the majority gives minimal thrift
to the precise and direct language of the constitutional provision and reverses
this case on the ambiguous wording.
Our Court today gives hefty consideration to the fact that the voters of
Kentucky approved this constitutional amendment and, therefore, must have
endorsed Senate only confirmation. Says the Court, "No reasonable voter could
have construed that ballot question to mean the House had any right
whatsoever to confirm nominees ." This requires a complete whiteout on the
ballots throughout this state of the words "in such manner as may be
prescribed by law." Of course, that was not the case .
In truth, when § 93 was on the ballot, it was all about the heart of the
issue - authorizing the re-election of constitutional officers for one additional
term . It is pure fantasy to think that the voters fully understood the last
sentence we deal with here today when it has taken over a year of much
consideration and discussion, and our Kentucky State Supreme Court almost
forty pages, to tell us what it means .
In keeping with strong presumption of the constitutionality of statutes
passed by our legislature, representing the citizenship of this state, I would
affirm the decision below. Therefore, with deep appreciation for the five minds
that differ, I respectfully dissent. Schroder, J., joins .
SCHRODER, J., DISSENTING: The bicameral confirmation requirement
for members of the CPE contained in KRS 164 .011(1) does not violate
Section 93 of the Kentucky Constitution. The phrase in Section 93 regarding
confirmation by the Senate is merely illustrative of how appointees could be
confirmed . The phrase does not preclude a statute that requires confirmation
by both chambers of the General Assembly . The language is clear; it says what
it says . Cunningham, J., joins .
COUNSEL FOR APPELLANT:
Paul Emmanuel Salamanca
279 Cassidy Avenue
Lexington, Kentucky 40502
COUNSEL FOR APPELLEE TREY GRAYSON
(IN HIS OFFICIAL CAPACITY AS
SECRETARY OF STATE OF THE
COMMONWEALTH OF KENTUCKY) :
Angela C . Evans
Office of the Attorney General
State Capitol Building, Room 118
700 Capital Avenue
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE STEVEN L. BESHEAR
(IN HIS OFFICIAL CAPACITY AS GOVERNOR OF
THE COMMONWEALTH OF KENTUCKY) :
Ellen M. Hesen
General Counsel
Edmund Scott Sauer
Office of General Counsel
Office of the Governor
101 State Capitol Building
700 Capital Avenue
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE PAM MILLER:
Dennis Lee Taulbee
Council on Postsecondary Education
1024 Capitol Center Drive
Suite 320
Frankfort, Kentucky 40601
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