Kentucky Commission on Human Rights v. Barbour

• Decision Date: 21 September 1979
• Citation: 587 S.W.2d 849
• Parties: KENTUCKY COMMISSION ON HUMAN RIGHTS and Ethel Clay, Appellants, v. Nelson BARBOUR, Appellee.
• Court: Kentucky Court of Appeals

Page 849

587 S.W.2d 849

KENTUCKY COMMISSION ON HUMAN RIGHTS and Ethel Clay Appellants, v. Nelson BARBOUR, Appellee.

Court of Appeals of Kentucky.

Sept. 21, 1979.

Galen A. Martin, Thomas A. Ebendorf, Samuel H. DeShazer, Kentucky Commission on Human Rights, Louisville, for appellants.

William E. Johnson, Johnson, Judy & Gaines, Frankfort, for appellee.

Before HAYES, LESTER and WHITE, JJ.

HAYES, Judge.

In this appeal from the Franklin Circuit Court, we are faced with the difficult and sensitive task of reviewing the constitutionality of KRS 344.230(3)(h). That statute authorizes the Kentucky Human Rights Commission to award monetary damages for embarrassment and humiliation suffered as a result of unlawful discrimination. The power to make such an award is one of the enumerated forms of "affirmative action" which the Commission may take based on findings of fact and conclusions of law that such relief was warranted.

The Board, pursuant to a complaint filed by Ethel Clay, held a full public hearing according to the procedures set out in KRS Chapter 344 and 104 Kentucky Administrative Regulations § 1:020. It awarded $750.00 to Ms. Clay for embarrassment and humiliation pursuant to its findings that she had experienced housing discrimination on the basis of race at the hands of the appellee Nelson Barbour. The Board did not explain why that particular sum was deemed appropriate. There was no finding that she had suffered more tangible monetary losses because of appellee's unlawful action.

The decision was appealed to the Franklin Circuit Court, which voided the award on the basis that the statute authorizing it was unconstitutional for " . . . vagueness, overly-broad delegation of Legislative authority, and usurpation of judicial authority. . . ." The rest of the Commission's findings and orders were undisturbed.

The specific fault found with the provision was that it contains no "standards or guidelines" for the exercise of the discretion conferred upon the Commission. The trial court's Opinion and Order noted that no monetary ceiling is specified for damages awarded to compensate for embarrassment and humiliation. The court below believed that neither the provision that the award must be based upon the Commission's findings, nor the statutory provision for review in circuit court of Commission findings, cures the legislative failure to limit recovery for embarrassment and humiliation.

We first note that the necessity for standards or guidelines accompanying legislative delegations was expressly rejected by the former Kentucky Court of Appeals in Butler v. United Cerebral Palsy of Northern Kentucky, Inc., Ky., 352 S.W.2d 203 (1961). That opinion placed Kentucky in the forefront of states adopting the "safeguards" test proposed by Professor Kenneth Culp Davis. Butler quoted Davis' Administrative Law Treatise at some length on the reasons for the adoption of a "safeguards" standard and the policies to be followed in applying that standard:

The typical opinion of a state court on a delegation problem is quite unfortunate both in what it says and what it fails to say. It says that (1) legislative power may not be delegated, (2) that "filling up the details" is not an exercise of legislative power, (3) that legislative power is not delegated if the Legislature has laid down a standard to guide the exercise of the power, and (4) that presence or absence of vague verbalisms like "public interest" or "just and reasonable" make all the difference between valid legislation and unlawful delegation.

The typical state court opinion on delegation fails to say anything about (1) the reasons for the legislative choice to make the particular delegation, (2) the practical consequences of allowing the Legislature to do what it is trying to do, (3) the usual lack of practical advantage in compelling the Legislature to dress up the statute with vague verbiage that the judges call standards, (4) the questions whether in the circumstances good government calls for a headlong choice of policy by the legislative body or whether it requires the working out of policy by case-to-case adjudication conducted by those who have the advantage of knowing the facts of particular cases, (5) the need for protection against unfairness, arbitrariness, and favoritism, (6) the importance of procedural...