Bevin v. Commonwealth ex rel. Beshear
| Decision Date | 13 December 2018 |
| Docket Number | 2018-SC-000421-TGE,2018-CA-001200-MR,2018-SC-000419-TGE |
| Citation | 563 S.W.3d 74 |
| Parties | Matthew G. BEVIN in His Official Capacity as Governor of the Commonwealth of Kentucky and Commonwealth of Kentucky, ex rel. Matthew G. Bevin, in His Official Capacity as Governor of the Commonwealth of Kentucky, Appellants v. COMMONWEALTH of Kentucky EX REL. Andy BESHEAR, Attorney General; Andy Beshear, in His Official Capacity as Attorney General of the Commonwealth of Kentucky; Kentucky Education Association; Kentucky State Lodge Fraternal Order of Police; Board of Trustees of the Teachers’ Retirement System of the State of Kentucky; and Board of Trustees of the Kentucky Retirement Systems, Appellees |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT: Mark Stephen Pitt, Stephen Chad Meredith, Matthew Kuhn, Office of The Governor.
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY EX REL. ANDY BESHEAR, ATTORNEY GENERAL AND ANDY BESHEAR, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY: Andy Beshear, Attorney General of Kentucky, John Michael Brown, La Tasha Arnae Buckner, Steven Travis Mayo, Samuel Robert Flynn, Marc Farris, Office of The Attorney General.
COUNSEL FOR APPELLEE KENTUCKY EDUCATION ASSOCIATION: Jeffrey Scott Walther, Lexington, Victoria Frances Dickson, Walther, Gay, & Mack, PLC.
COUNSEL FOR APPELLEE KENTUCKY STATE LODGE FRATERNAL ORDER OF POLICE: David Lindsay Leightty, Alison M. Messex, Louisville, Priddy, Cutler, Naake & Meade, PLLC.
COUNSEL FOR APPELLEE BOARD OF TRUSTEES OF THE TEACHERS' RETIREMENT SYSTEM OF THE STATE OF KENTUCKY: Robert B. Barnes, General Counsel, Kentucky Teachers' Retirement.
COUNSEL FOR APPELLEE BOARD OF TRUSTEES OF THE KENTUCKY RETIREMENT SYSTEMS: Mark C. Blackwell, Katherine I. Rupinen, Joseph Patrick Bowman, Kentucky Retirement Systems.
COUNSEL FOR AMICUS CURIAE, BERTRAM ROBERT STIVERS II, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE KENTUCKY SENATE: David E. Fleenor, R. Vaughn Murphy, Tyler Peavler, Office of The Senate President.
COUNSEL FOR AMICUS CURIAE, DAVID W. OSBORNE, IN HIS OFFICIAL CAPACITY AS SPEAKER PRO TEMPORE OF THE KENTUCKY HOUSE OF REPRESENTATIVES: David Eric Lycan, Office of The Speaker.
Appellant, Governor Matthew G. Bevin, appeals from an opinion and order of the Franklin Circuit Court granting summary judgment to the Kentucky Education Association, the Kentucky State Lodge Fraternal Order of Police, the Board of Trustees of the Teachers' Retirement System of the State of Kentucky, the Board of Trustees of the Kentucky Retirement Systems, and Kentucky Attorney General Andy Beshear, which together we refer to as "Appellees." Appellants are supported in this appeal by an Amicus Curiae brief filed by Senate President, Bertram Robert Stivers, II, and Speaker Pro Tempore of the Kentucky House of Representatives, David W. Osborne, together referred to herein as Amicus.
As Plaintiffs in the circuit court, Appellees filed suit challenging the validity of Senate Bill 151 (SB 151), based upon what they contend to be its flawed enactment. SB 151 was passed during the 2018 session of the Kentucky General Assembly and it ostensibly makes several modifications to the various state government employee pension plans, including the pension plans for teachers, state police, and county employees.
The circuit court held that in passing SB 151 the legislature violated § 46 of the Kentucky Constitution by failing to give the bill a reading on three different days in each legislative chamber (the "three-readings" requirement), and by failing to obtain 51 votes in the House of Representatives as required for a bill which appropriates money or creates a debt. Upon its conclusion that SB 151 was not passed in compliance with the Kentucky Constitution, the circuit court voided the bill without addressing the substantive issues of whether the legislation violated the inviolable contract status afforded to state pensions under KRS 161.7141 and whether the legislation violated the prohibition against impairment of contracts contained in § 19 of the Kentucky Constitution.2
On appeal, Appellants first assert that a judicial interpretation of the three-readings requirement of § 46 is a non-justiciable matter, related exclusively to the legislative branch of government under principles connected with separation of powers and the political question doctrine, and thus, the circuit court erred by adjudicating it. Consistent with that argument, Appellants further assert that this Court is without authority to declare the meaning of § 46.
For the reasons set forth below, we disagree. Upon review, we conclude that the passage of SB 151 did not comply with the three-readings requirement of § 46 and that the legislation is, therefore, constitutionally invalid and declared void. Based upon this disposition, we do not address the arguments challenging the substantive provisions of SB 151. Our disposition renders moot the question of whether SB 151 constitutes an appropriation or created a debt subjecting it to the 51-vote majority provision of § 46. To address issues that may or may not recur in subsequent legislation would be an advisory opinion. The "courts do not function to give advisory opinions, even on important public issues, unless there is an actual case in controversy." Newkirk v. Commonwealth , 505 S.W.3d 770, 774 (Ky. 2016) (quoting Philpot v. Patton , 837 S.W.2d 491, 493 (Ky. 1992) ). The substantive merits of any future legislation on the subject matter before us should proceed without being influenced by this Court’s opinion on the present legislation.
In response to the inadequate funding of Kentucky’s public employee pension systems and a rising concern about the ability of those systems to meet future obligations, the Kentucky General Assembly opened its 2018 session with ambitious plans to address the looming financial threat by reforming the public pension systems. As an initial step toward that goal, Senate Bill 1 (SB 1) was introduced in the Senate on February 20, 2018. With the title, "AN ACT relating to retirement," SB 1 would make several changes to the Kentucky Employees Retirement System, County Employees Retirement System, State Police Retirement System, and Kentucky Teachers' Retirement System. The title of the bill is important because Section 51 of the Kentucky Constitution requires:
No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be reenacted and published at length.
Vocal opponents of SB 1 complained that it reduced annual cost-of-living-adjustments for retired public employees, put newly-hired employees into a hybrid-cash balance plan rather than the defined-benefits plans enjoyed by current employees, and limited the extent to which unused sick-leave credit could be used to enhance the retirement benefits for current and future public employees. Resistance to SB 1 led to protests at the Capitol and in other forums around Kentucky. Legislative action on the bill stalled. Senate leadership referred SB 1 back to committee for additional study. No further action was taken on the bill, but the concern for the solvency of the pension systems did not subside.
On the fifty-seventh day of the sixty-day legislative session, the House Committee on State Government met to address pension-reform alternatives. Consensus on a plan for reform was reached. With time waning for legislative action, the Committee was confronted with § 46 ’s requirement for the bill to be read at length on three different days. Section 46 states in pertinent part:
No bill shall be considered for final passage unless the same has been reported by a committee and printed for the use of the members. Every bill shall be read at length on three different days in each House , but the second and third readings may be dispensed with by a majority of all the members elected to the House in which the bill is pending.
(emphasis added).
To pass the newly agreed-upon reform, the Committee invoked the following previously-used legislative maneuver: a different bill which had already been given one or more readings in each chamber would be "amended" by inserting the newly agreed-upon pension-reform text, with the expectation that the previous readings of the bill would count toward the three-reading requirement. To this end, SB 151 was selected.3
SB 151 had originated in the Senate with the title, "AN ACT relating to the local provision of wastewater services." In its original form, SB 151 consisted of eleven pages of text concerning contracts for the acquisition of local wastewater facilities.
When SB 151 was called in the House, it was amended by a Committee Substitute containing the pension reform language. The Committee Substitute removed every word of the bill pertaining to wastewater facilities and replaced those words with 291 pages of text addressing pension reform, much of which had been part of SB 1 but modified to remove the language that drew the most aggressive opposition.
When the Committee Substitute was introduced, SB 151 had already received three readings on different days in the Senate and two readings in the House. All the readings of the bill, however, in both substance and title, were in its form as a bill pertaining to local wastewater services. The principal issue before us is whether any of the prior readings of SB 151 in its original form can be counted toward satisfaction of the three-readings requirement of the bill after its transformation from a wastewater bill to a pension reform bill. Appellants and Amicus assert that the prior readings should count toward the three-reading requirement, while Appellees contend that none count.
Our review of SB 151 in its final...
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