Brown v. Barkley, 81-SC-592-DG

• Decision Date: 05 March 1982
• Docket Number: No. 81-SC-592-DG,81-SC-592-DG
• Citation: 628 S.W.2d 616
• Court: United States State Supreme Court — District of Kentucky
• Parties: John Y. BROWN, Jr., Governor of the Commonwealth of Kentucky, et al., Movants, v. Alben W. BARKLEY II, Commissioner of Agriculture, Respondent.

Page 616

628 S.W.2d 616

John Y. BROWN, Jr., Governor of the Commonwealth of Kentucky, et al., Movants, v. Alben W. BARKLEY II, Commissioner of Agriculture, Respondent.

No. 81-SC-592-DG

Supreme Court of Kentucky.

March 5, 1982.

As Amended March 17, 1982.

Lawrence E. Forgy, Jr., Wyatt, Tarrant & Combs, Lexington, William H. Cull, J. Patrick Abell, Frankfort, for movants.

Julius Rather, Lexington, R. Hughes Walker, J. Michael Noyes, Frankfort, for respondent.

PALMORE, Chief Justice.

On January 14, 1981, the Governor of Kentucky issued an executive order (numbered 81-55) transferring various functions, personnel and funds from the Department of Agriculture (hereinafter called Agriculture) to another executive agency and, among other things, placing it and several other agencies within a newly-created Energy and Agriculture Cabinet. The Commissioner of Agriculture ¹ thereupon brought suit challenging the validity of the order. The trial court adjudged it invalid on the ground that it was not authorized by KRS 12.025(1), the enabling statute pursuant to which it was issued. On appeal by the Governor the Court of Appeals held that the order did come within the literal authority of KRS 12.025(1) but was prohibited by a proviso added in 1980 to KRS 12.020, a related statute.

Our conclusion is that the trial court was correct in determining that KRS 12.025(1) does not authorize the transfer of functions, personnel and funds directed by the order. We have considered also whether the Governor nevertheless has constitutional power to effect such a reorganization regardless of the statute, and have determined that he does not.

Before discussing the merits it is necessary that we clear up a misunderstanding with regard to appellate practice. In the trial proceeding the Commissioner contended that even if KRS 12.025(1) purports to authorize the transfer, it is invalid as an unconstitutional attempt to delegate to the executive branch of government a power that is essentially legislative in nature and can be exercised only by the General Assembly itself. The trial court addressed that issue and held the statute valid, but determined that it does not authorize the transfer. The Court of Appeals declined to consider the constitutional issue because the Commissioner did not cross-appeal. We are moved to point out, however, that appeals are taken from judgments, not from unfavorable rulings as such. A party must be aggrieved by a judgment in order to appeal from it. Cf. Miller v. Miller, Ky., 335 S.W.2d 884, 886 (1960); Civil Service Comm. v. Tankersley, Ky., 330 S.W.2d 392, 393 (1959). A cross-appeal is appropriate only when the judgment fails to give the cross-appellant all the relief he has demanded or subjects him to some degree of relief he seeks to avoid. The relief sought by the Commissioner was an injunction against the enforcement of the executive order. The judgment gave him that relief. That the trial court decided the case on one of the grounds urged by the successful party while rejecting the other does nothing to diminish the relief he was granted. We recognize, of course, that a document styled as a "judgment" may embrace within its four corners opinions, observations, recitations or rulings leading to or in support of its operative effect, but in contemporary parlance it is the "bottom line" that is the ultimate judgment and source of aggrievement providing the basis for an appeal.

Some of our past opinions ² suggesting the necessity of a cross-appeal in order for an appellee to bring an adverse ruling of the trial court under review by an appellate court appear to have fostered confusion by failing to distinguish between those instances in which the judgment gives the appellee the ultimate relief for which he has contended and those in which the judgment gives him something less. In the latter case he cannot challenge the shortcomings of the judgment without a cross-appeal. He can, however, by way of bolstering the judgment against the possibility that the appellate court may accept the appellant's claim of error, make the point that he was nevertheless entitled to the judgment on a theory that was properly presented but erroneously rejected by the trial court. To cite a familiar example, if in a damage suit the judgment reflects a jury verdict in favor of the defendant, there is no reason why he cannot argue to the appellate court that certain errors raised on appeal by the losing plaintiff are immaterial because the defendant had moved for and was entitled to a directed verdict anyway. In short, "cross-appeals can be maintained only when the effect of the trial judgment is to place some obligation on appellee" (or, of course, to deny him something for which he has asked). Clark v. Wells-Elkhorn Coal Co., 215 Ky. 128, 284 S.W. 91, 93 (1926).

It was not necessary for Barkley to cross-appeal in order to preserve his contention that the statute is unconstitutional.

The centerpiece of this litigation is KRS 12.025(1), which originated in 1960 as part of an act reorganizing the executive branch of the state government. ³ This statute provides that the Governor may:

"(1) Establish, abolish or alter the organization of any agency or statutory administrative department, including changing the name of a department to explain more clearly the functions performed by it. Also included in this authority shall be permission to transfer functions, personnel, funds, equipment, facilities and records from one (1) department to another. Reorganization made under this section shall be set forth in an executive order, signed by the governor and filed in the office of the secretary of state, which shall explain the changes made and designate the functions, personnel, funds, equipment, facilities and records, as applicable, to be transferred. The governor shall recommend legislation to the next following session of the general assembly to confirm reorganizations effected under the provisions of this section." (Emphasis added.)

The term "statutory administrative department" used in KRS 12.025 (1) related directly to KRS 12.020, by which, as amended in the same legislation, the various executive and administrative agencies of the state were classified as (1) "Constitutional Administrative Departments," (2) "Statutory Administrative Departments," and (3) "Independent Agencies." The Governor and the Departments of State, Law, Treasury, Agriculture, Education, and Military Affairs were enumerated as the "constitutional" administrative departments. As may be observed, this designation included all of the departments corresponding with the offices created by Const. Sec. 91 except for the Auditor of Public Accounts, whose office was classified among the "Independent Agencies," and the Register of the Land Office, which had been abolished pursuant to Const. Sec. 94; and it included one, the Department of Military Affairs, which does not relate to any of the offices named in Const. Sec. 91 but obviously falls under the military powers vested in the Governor by Const. Sec. 75.

Clearly, when it was enacted in 1960 KRS 12.025(1) would not have applied to those departments, including Agriculture, that were classified in KRS 12.020 as "constitutional" rather than "statutory." Today, however, though KRS 12.025 remains substantially unaltered, KRS 12.020 has been so amended that the term "statutory administrative department" has become an anachronism.

Whereas in 1960 the executive departments and agencies enumerated in KRS 12.020 were classified as "constitutional," "statutory," and "independent agencies," at the next regular session of the General Assembly ⁴ they were reclassified according to whether they were headed by elected officers or by appointed officers. In 1974 they were further reclassified as "Departments headed by elected officers," "Cabinet Departments headed by appointed officers," and "Other Departments headed by appointed officers," ⁵ and through the amendments which have been enacted from that time until today this has remained the terminology by which KRS 12.020 classifies most of the administrative departments within the executive branch of government. The elected officers listed as such in KRS 12.020 are the Governor, Lieutenant Governor, Railroad Commissioner, and all of the officers named in Const. Sec. 91 except for the now-defunct Register of Lands.

In the massive reorganization statute enacted in 1974 ⁶ the following sentence was added to KRS 12.020:

"Every authority, board, bureau, interstate compact, commission, committee, conference, council, office or any other form of organization shall be included in or attached to the Department or program cabinet in which they are included or to which they are attached by statute or executive order."

In 1980 ⁷ the foregoing sentence was amended by addition of the following proviso, and this new language in KRS 12.020 is the basis on which the Court of Appeals held that the Governor cannot, under KRS 12.025, transfer functions, funds, personnel, etc., from Agriculture to another executive agency or department:

"Provided, however, that where the attached department or administrative body is headed by a constitutionally elected officer such attachment shall be solely for the purpose of dissemination of information and coordination of activities and shall not include any authority over the functions, personnel, funds, equipment, facilities, or records of such department or administrative body."

It is argued by counsel for the Governor that Agriculture is in fact a statutory department, hence it is subject to the reorganizational authority specified by KRS 12.025. In that Const. Sec. 91 does no more than to create certain offices, by naming the officers to be elected to them, and does not expressly establish any department or organizational structure to be headed by those officers, we agree that the departments now headed by them are not truly "constitutional" ...