Ex parte Farley

• Decision Date: 25 July 1978
• Citation: 570 S.W.2d 617
• Parties: Ex parte Jack Emory FARLEY, Public Advocate, Office for Public Advocacy, Commonwealth of Kentucky, Larry Otis Bendingfield, and Robert E. Martin, III.
• Court: United States State Supreme Court — District of Kentucky

Page 617

570 S.W.2d 617

Ex parte Jack Emory FARLEY, Public Advocate, Office for

Public Advocacy, Commonwealth of Kentucky, Larry

Otis Bendingfield, and Robert E. Martin,

III.

Supreme Court of Kentucky.

July 25, 1978.

Jack Emory Farley, Public Advocate, Kevin Michael McNally, Erwin W. Lewis, Asst. Public Defenders, Frankfort, for petitioners.

Robert F. Stephens, Atty. Gen. by Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort.

PALMORE, Chief Justice.

This proceeding began in the form of a "Complaint for Declaration of Rights" filed by the petitioners in the Franklin Circuit Court. Named as defendants were the Supreme Court of Kentucky "both individually and collectively," the Chief Justice and individual Justices of the Supreme Court in their respective official capacities, the Administrative Office of the Courts and its Director, and the Executive Assistant to the Chief Justice. For reasons presently discussed we ordered the proceeding transferred to this court and directed that it be styled, treated and practiced as an Ex parte application for the ultimate relief desired by the petitioners, which is that they be provided "periodic inspections" and the right to copy whatever records are being compiled pursuant to KRS 532.075(6).

KRS 532.075 was enacted at the 1976 Extraordinary Session of the General Assembly as part of a series of statutory sections relating to the death penalty for serious criminal offenses. Ch. 15, Acts of 1976 (Ex. Session). These statutory sections were patterned after similar provisions enacted by the State of Georgia had passed constitutional muster in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

With exceptions not here pertinent, the laws of this state always have required that the quantum of punishment in a criminal case be prescribed, within the applicable statutory limits, by the jury. See, for example, Chapter IV, § 15, Acts of 1798, as contained in 2 Littell's Statute Laws of Kentucky, p. 14; § 1136, Carroll's Kentucky Statutes (Baldwin, 1922); Criminal Code § 258, Carroll's Kentucky Codes (Baldwin, 1938); KRS 431.130 (Baldwin, 1955). By Chapter 234, Acts of 1962, the Rules of Criminal Procedure (RCr) were recognized as superseding the old Criminal Code and, among other things, KRS 431.130 was amended to delete reference to the fixing of punishment. Since that time the jury requirement has been preserved in RCr 9.84.

From a reading of the 1976 Act (KRS 532.025-532.100, incl.) it may be seen that from the beginning of the trial in a capital case there are four successive inquiries leading to final confirmation of the death sentence. First is a trial on the question of guilt or innocence. Then if the defendant is found guilty the court is required to resume the trial and conduct a presentence hearing, at which the same jury hears evidence of aggravating and mitigating circumstances as defined in KRS 532.025(2), determines whether any of those circumstances exist, and recommends a sentence. Thirdly, whatever may be the jury's recommendation, "upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law." ¹ Lastly, if the death sentence is imposed, KRS 532.075 requires that it be reviewed by the Supreme Court "on the record." This much must be done regardless of whether there is an appeal. Cf. KRS 532.075(2), (8).

In addition to those matters that are discernible "on the record," KRS 532.075(3) introduces a question calling for another category of information (which, of course, would not appear in the record of the case) to be considered by the Supreme Court incident to its review of the sentence: "Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."

To implement this latter provision, KRS 532.075(6) provides as follows:

"(6) The chief justice shall assign to an administrative assistant who is an attorney the following duties:

(a) To accumulate the records of all felony offenses in which the death penalty was imposed after January 1, 1970, or such earlier date as the court may deem appropriate.

(b) To provide the court with whatever extracted information it desires with respect thereto, including but not limited to a synopsis or brief of the facts in the record concerning the crime and the defendant.

(c) To compile such data as are deemed by the chief justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence."

KRS 532.075(5) provides in part as follows (referring to the Supreme Court): "The court shall include in its decision a reference to those similar cases which it took into consideration."

The petitioner Farley is Public Advocate (formerly Public Defender, cf. Ch. 155, § 20, Acts of 1978) for the Commonwealth. His office is an "independent agency of state government," KRS 31.010, and its duties include the defense of indigent defendants in criminal cases. KRS 31.030. Despite this legislative designation of his office as an independent agency of state government, the Public Advocate is "directly responsible" to the Secretary of Justice. KRS 31.020. The Secretary of Justice is head of the Department of Justice, and is an executive cabinet officer appointed by the Governor. KRS 11.065, 12.020. The Office for Public Advocacy is, in fine, an agency of the executive branch of the state government, and insofar as his relationship to the Court of Justice (cf. Const. § 109) is concerned, the position of the Public Advocate is no more and no less than that of any other lawyer practicing before it.

The Court of Justice and its officers and employes are the judicial department of the Commonwealth. Const. §§ 27, 28, 109. The Court of Justice is a "unified judicial system for operation and administration." Id., § 109. In addition to its appellate jurisdiction with regard to matters in litigation, Const. § 110 expressly recognizes the authority of the Supreme Court "to exercise control of the Court of Justice." The existence of such authority at some point in the structure is, of course, indispensable to a "unified judicial system for operation and administration." Though Const. § 110(5)(b) provides that the Chief Justice "shall be the executive head of the Court of Justice," there can be little doubt that § 110 vests the supervisory and policy-making authority of the judicial department in the Supreme Court. Cf. SCR 1.020(1)(a).

Const. § 110(5) directs the Chief Justice to appoint such administrative assistants as he deems necessary. KRS 27A.015 provides for an administrative office of the courts (hereinafter AOC) and a director of that office to serve as the staff of the Chief Justice in executing the policies and programs of the Court of Justice. Clearly, this office and its director and employes are part and parcel of the judicial department of the state. They are, in fact, inseparable from the office of the Chief Justice itself.

We have recited these humdrum details in order that things may be kept in proper focus as we go along.

As of this writing, no case has been brought to this court for review of a death sentence under KRS 532.075, though at least one appears to be in the offing and the petitioners Bendingfield and Martin evidently regard themselves as likely candidates. Meanwhile, the task of accumulating the information mentioned in KRS 532.075(6) has been undertaken by personnel of AOC under the supervision of its Director and of the Chief Justice, but the court has not yet considered or determined which, if any, of the informational materials so collected (beyond the death-penalty cases since January 1, 1970) might be appropriate and relevant to the statutory questions concerning the validity of any particular death sentence or any prospective sentences of that nature.

In July of 1977 Farley's office wrote a letter to AOC expressing the desire "to have input into what types of data will be collected and . . . have access to that data." In August of 1977 another such letter was addressed to the then Chief Justice reporting that the petitioner Bendingfield had been convicted of two capital offenses and requesting all information compiled pursuant to KRS 532.075(6) so that the trial judge might be advised of the "factors . . . relevant to his decision regarding whether to accept the jury's recommendation of death for our client" and "relevant to our challenge to the constitutionality of the statute." In a reply prepared at the direction of the Chief Justice AOC advised that the work had just begun, that no information was available thus far, and that whether it would become available at some time in the future was a question to be taken up with the Chief Justice. In November of 1977 the Public Advocate wrote the present Chief Justice to the effect that although the statute did not so require, it would avoid wasteful duplication of effort if the material being accumulated by AOC were made available to his office. A reply from the Chief Justice advised the Public Advocate that the matter had been discussed with the members of the court and the court was not convinced it was desirable.

On March 21, 1978, by letter, Farley requested the opportunity of inspecting "the public records" compiled by AOC pursuant to KRS 532.075 and cited KRS 61.870, et seq., the "Open Records Law," as authority for him to do so. A reply prepared by AOC advised that the court considered the information as being for its own use and that it would not be made available until the Chief Justice determined otherwise. Meanwhile, at least two efforts were made, unsuccessfully, by members of the Public Advocate's staff to bring the desired materials into court through subpoenas served upon the Administrative Director of the Courts in criminal trial proceedings, and on April 20, 1978, the Attorney-General, replying to an appeal made by the Public Advocate under KRS 61.880 (a provision...