Baker v. Fletcher, No. 2005-SC-000208-TG.

• Decision Date: 15 June 2006
• Docket Number: No. 2005-SC-000208-TG.
• Citation: 204 S.W.3d 589
• Parties: Lisa BAKER, et al., Appellants, v. Ernie FLETCHER, in his Official Capacity as the Governor of the Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 589

204 S.W.3d 589

Lisa BAKER, et al., Appellants, v. Ernie FLETCHER, in his Official Capacity as the Governor of the Commonwealth of Kentucky, Appellee.

No. 2005-SC-000208-TG.

Supreme Court of Kentucky.

June 15, 2006.

Rehearing Denied November 22, 2006.

COPYRIGHT MATERIAL OMITTED

Ron Parry, Parry, Deering, Futscher & Sparks, PSC, Covington, Phillip J. Shepherd, Frankfort, Counsel for Appellants.

James L. Deckard, General Counsel, Office of the Governor, Frankfort, Sheryl G. Snyder, M. Holliday Hopkins, Jason Patrick Renzelmann, Frost Brown Todd LLC, Louisville, Counsel for Appellee.

Opinion of the Court by Chief Justice LAMBERT.

The question before this Court is whether the General Assembly may retroactively suspend KRS 18A.355, a statute that provides all employees of the Commonwealth of Kentucky an annual increment in their salaries of not less than five percent. The trial court answered in the affirmative. A notice of appeal was filed and this Court granted transfer of the appeal.¹

FACTS

The facts, as well-stated by the able trial court, are as follows.

In August of 2004, the Plaintiffs, Lisa Baker, Jeffrey Howard, John Meehan, and Stanley C. Nickell, filed this class action complaint in the Franklin Circuit Court, requesting declaratory and injunctive relief pursuant to KRS 418.040 and CR 57, against the named Defendant Ernie Fletcher, in his official capacity as Governor of Kentucky.

The origin of the Plaintiffs' complaint emerges from the Kentucky General Assembly's failure to fulfill its constitutional and statutory duty to enact a comprehensive balanced budget appropriating revenues to fund the Executive Branch. As a result of the General Assembly's neglect and in the absence of a budget appropriation, then Governor Paul E. Patton declared a state of emergency and issued an Executive Order (2002-727) for the fiscal year beginning July 1, 2002. Pertinent to the case at hand, Governor Patton's Executive Spending Plan contained language seeking to suspend operation of KRS 18A.355(1) and alternatively provide for a two and seven-tenths (2.7%) annual salary increment for state employees.

The 2003 regular session of the General Assembly proved to be more productive; and on March 25, 2003, the Legislature promulgated a biennial budget for the fiscal year beginning July 1, 2002 and ending on June 30, 2003, and for the fiscal year beginning July 1, 2003, and ending on June 30, 2004. The enacted budget bill also contained language suspending KRS 18A.355(1) and providing a cost-of-living adjustment of two and seven-tenths percent (2.7%) for the fiscal year 2002-2003 on the base salary or wages of each eligible state employee on their anniversary date.

The crux of the Plaintiffs' complaint focuses on the interim period (July 1, 2002 to March 25, 2003) in which the Executive Branch of the Commonwealth was funded solely from the Executive Order of Governor Patton. During this time period, the named Plaintiffs were all state employees, each having their annual increment dates fall between July 1, 2002 and March 25, 2003. Pursuant to the Executive Order, the Plaintiffs received a two and seven-tenths (2.7%) annual increment. They maintain however, that they were entitled to a full five percent (5%) annual increment as provided under KRS 18A.355(1).

The Plaintiffs now seek declaratory and injunctive relief requiring the Defendant to implement a full five percent (5%) salary increase for them and all similarly situated state employees under KRS 18A.355 for the fiscal year beginning July 1, 2002. In support, the Plaintiffs maintain that the Governor was without authority to suspend the statutory mandates of KRS 18A.355(1) and an Executive Order attempting otherwise represents a violation of Section 15 and Section 81 of the Kentucky Constitution. The Plaintiffs further assert that they are entitled to an upward adjustment in their base salary and/or retirement benefits for each fiscal year after the adoption of the Executive Order to reflect the increased salary to which they claim they are entitled.

DISCUSSION OF THE LAW

It is beyond dispute that the General Assembly possesses power to suspend statutes. Section 15 of the Kentucky Constitution states that "[n]o power to suspend laws shall be exercised unless by the General Assembly or its authority." This section, like the majority of the Kentucky Bill of Rights,² was modeled after a similar provision in the Pennsylvania Constitution,³ and was originally designed to reflect the will of the framers to prevent suspension of duly-enacted laws by any entity other than the constitutionally-elected legislative body, a power the British government had ruthlessly exercised over the colonies.⁴ Prevailing precedent of this Court provides that the General Assembly may also suspend statutes in a budget bill.⁵ Moreover, the General Assembly may retroactively suspend statutes in some circumstances, provided that the legislature clearly manifests its intent to do so.⁶ These principles of Kentucky jurisprudence, while instructive, fall short of resolving the case before us, as it calls into question whether the General Assembly may retroactively suspend the salary-increment statute in the middle of a budget cycle, after employee rights may have become vested.

The parties agree that actions relevant to the adjudication of this case were taken by the General Assembly. Counsel for Appellants began his oral argument by informing the Court that this case was about "[w]hether state employees who have a statutory right to a five percent pay raise can have that statutory right retroactively revoked by implication of ambiguous language in a subsequently enacted budget." Similarly, the Governor's counsel posited that "[t]he question before this Court is not the validity of Governor Patton's executive order. The question before this Court is the validity of an act of the General Assembly subsequent to that executive order." Thus, the parties agree that the legal issue is the scope of legislative authority.

But this claim was brought against the Governor, one who took no authorized action in the case. The General Assembly retroactively suspended the statute, and we have discovered no means whereby the Governor could have properly accommodated Appellants' claims. It is axiomatic that a plaintiff may not obtain relief from one who did him no wrong.⁷ However, further analysis is appropriate to explain why relief cannot be adjudged against the Governor and to address lingering questions as to who are proper parties in cases of this type.

The Governor appears to have been named as the defendant because the Appellants asserted that his action in suspending KRS 18A.355 in his Executive Spending Plan violated their right to the annual increment. However, Fletcher v. Commonwealth⁸ is dispositive of this contention.

The Governor possesses no "emergency" or "inherent" powers to appropriate money from the state treasury that the General Assembly, for whatever reason, has not appropriated. . . . Nor does the Court of Justice have the power to confer such authority.

We also held that Governor Patton was not empowered to suspend statutes.

The suspension of statutes by a Governor is also antithetical to the constitutional duty to "take care that the laws be faithfully executed." Ky. Const. § 81. A fortiori, the suspension of any statutes by the Governor's Public Services Continuation Plan was unconstitutional and invalid ab initio.

Therefore, Governor Patton's attempted suspension of the statute in the Executive Order was void ab initio, and no damages could have resulted from that legal nullity. Even if one assumes that Appellants' theory is correct that the retroactive suspension of the statute improperly divested them of vested rights, Appellants were nevertheless obligated to bring their claims against parties whose actions caused their damages. Logically that party would be the General Assembly, since it was its retroactive suspension of the five percent statute that makes up this controversy.

However, in matters concerning the General Assembly, Section 43 of the Kentucky Constitution grants privileges and immunities to its members—such that they shall not be questioned in any court for speech or debate in either House — therefore, no member, nor the body, can be held to account for suspension of the statute. This Court is required to determine whether the suspension was lawful, but the privileges and immunities clause prevents a plaintiff from seeking redress from members. This is not a novel rule of law; rather it is consistent with cases interpreting the United States Constitution. And, as will be seen, this is as it should be.

The constitutional privileges granted to members of the Kentucky General Assembly mirror word-for-word the privileges granted to members of the Congress of the United States in the Speech and Debate Clause.⁹ In fact, the privilege is a century older than our federal constitution, dating at least to the time of the English Bill of Rights of 1689, which stated that "the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament."¹⁰ James Wilson, a Pennsylvania delegate to the Constitutional Convention in Philadelphia and an esteemed attorney, defended the privilege in 1791:

In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.¹¹

In fact, according to Professor Akhil Amar in his new book America's Constitution: A Biography, Kentucky legislators relied upon their immunity to speak out against federal lawmakers when many others withheld criticism due to fear of prosecution under the...