Kraus v. Kentucky State Senate

• Decision Date: 24 November 1993
• Docket Number: No. 92-SC-960-DG,92-SC-960-DG
• Citation: 872 S.W.2d 433
• Parties: David L. KRAUS, Appellant, v. The KENTUCKY STATE SENATE, the Kentucky House of Representatives Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 433

872 S.W.2d 433

David L. KRAUS, Appellant, v. The KENTUCKY STATE SENATE, the Kentucky House of Representatives Workers' Compensation Board, Appellees.

No. 92-SC-960-DG.

Supreme Court of Kentucky.

Nov. 24, 1993.

As Modified on Grant of Rehearing March 24, 1994. ^*

Fred R. Radolovich (David L. Kraus, of counsel), Louisville, for appellant.

Chris Gorman, Atty. Gen., Thomas J. Hellmann, Asst. Atty. Gen., Frankfort, L.T. Grant, Com'r, Valerie L. Salven, Gen. Counsel, Dept. of Workers' Claims, Frankfort, for appellees.

WINTERSHEIMER, Justice.

David L. Kraus challenges the authority of the Kentucky State Senate to grant to itself the power to consent to the employment by an executive board of the Workers' Compensation Commission of an Administrative Law Judge pursuant to K.R.S. 342.230(3). This appeal is from a decision of the Court of Appeals which affirmed the circuit court order sustaining the constitutionality of the statute and denying Kraus damages and injunctive relief. The circuit court determined that the statute was constitutional and that the Senate and the Workers' Compensation Board are immune from suit for injunctive relief in this matter.

The specific questions raised are whether the circuit court erred or misinterpreted Legislative Research Com'n v. Brown, Ky., 664 S.W.2d 907 (1984) when it found the statute constitutional and whether the Court of Appeals was in error when it held that immunity was a bar to suing the Senate and the Workers' Compensation Board for injunctive relief or damages.

Kentucky Workers' Compensation laws were amended in 1987 to establish a system in which ten Administrative Law Judge positions were created. In 1990, the statute was further amended to increase the number of ALJ positions to fifteen. These positions were to be filled by the Workers' Compensation Board subject to the approval of the Kentucky State Senate. K.R.S. 342.230(3).

Kraus was contacted by the Chairman of the Workers' Compensation Board and advised of his selection as one of the five ALJs to be appointed pursuant to the 1990 enlargement. He was told that his appointment was subject to senate approval but that he should be ready to begin work on May 1, 1990. In April, he appeared before the Senate but his nomination was rejected. He filed a declaration of rights action seeking to have the statute declared unconstitutional and requesting damages and "reinstatement" to the ALJ position. Named as parties to the suit were the Kentucky State Senate and the Kentucky House of Representatives, the Department of Labor and the Workers' Compensation Board. The Department of Labor was dismissed by agreed order. Kraus specified that all defendants were sued in their official, and not in their individual, capacities. The circuit court ruled by a judgment on the pleadings that the statute was constitutional and that both the state and federal civil rights claims were barred by the immunity provided by the speech and debate clause of Kentucky Constitution Section 43 and U.S. Constitution, Article I, Section 6. The circuit court further determined that Kraus had only an expectancy of employment and not a right.

The complaint in circuit court contends that the statute is unconstitutional by virtue of being in violation of Sections 27, 28, 29 and 69 of the Kentucky Constitution.

The Kentucky Court of Appeals reversed the circuit court on two issues when it determined that Kraus had standing to bring the action challenging the constitutionality of the statute and that the complaint presented a justiciable controversy. This Court granted Kraus's motion for discretionary review of the Court of Appeals decisions that the statute is constitutional and that the Kentucky State Senate and House of Representatives are immune from suit. It should be noted that the House is not involved in the confirmation process.

Initially, we will consider Kraus's argument that the Senate does not have the authority to consent to executive branch appointments and that to permit such consent would be a violation of the separation of powers provision of the Kentucky Constitution.

The seminal case which considers the separation of powers doctrine under the Kentucky Constitution is Legislative Research Com'n v. Brown, supra. Two of the issues addressed by the court in Brown, supra, were the power of the LRC to act in the place of the General Assembly after it had adjourned, and the authority of the LRC and the legislative leadership to appoint members to serve on various boards and commissions. LRC v. Brown, held that a statute making the Legislative Research Commission an independent agency with powers to legislate while the General Assembly was adjourned was unconstitutional as being in violation of the separation of powers provision of the Kentucky Constitution. Brown also held that the legislature could not constitutionally appoint inferior state officers.

An important distinction must be made immediately, and that is that there is a difference between the power to appoint and the power to confirm or reject an appointment by another branch of government. Clearly this is a rather mixed situation involving the three principal functions of government. An ALJ performs certain judicial functions insofar as he or she may take evidence, hold hearings and render final opinions in a worker's compensation matter subject to further appeal both to the Workers' Compensation Board and the established judicial system. The appointments are made by the executive branch, and pursuant to statute are subject to legislative confirmation.

In Brown, this Court held invalid a number of statutes which delegated to the LRC the legislature's role of advice and consent on executive appointments. See Brown at 924. Brown left intact the power of the legislature itself to consent to the executive appointments where properly provided by appropriate statute.

We recognize that unlike the Federal Constitution, the Kentucky State Constitution contains express separation of powers provisions. Brown; Sheryl G. Snyder and Robert M. Ireland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of LRC v. Brown, 73 Ky.Law Journal 165 (1984-85).

The provisions of constitutional sections 27 and 28 divide the governmental power into three branches, executive, legislature and judicial, and provide that no person in one branch shall exercise power belonging to another branch.

Kraus contends that K.R.S. 342.230(3) is unconstitutional because the Senate has granted unto itself the power of filling or withholding appointments in contravention of authority of the executive branch. See Const. § 76; Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136 (1901). We must also understand that LRC v. Brown determined that any statute which purportedly contravenes Sections 27 and 28 of the Kentucky Constitution must be strictly construed. Brown, supra.

The question of appointment is not before this Court because the Senate does not appoint an ALJ under the statute but only consents to the appointment by the Workers' Compensation Board.

The important distinction between the power to appoint and the power to consent to an appointment has been recognized previously in Sewell v. Bennett, 187 Ky. 626, 220 S.W. 517 (1920). In that case, the highest court of this state considered whether the provisions of the Workers' Compensation Act allowing the Governor to appoint members of the Workers' Compensation Board were in conflict with K.S. 3750 which gave the Senate the power to confirm executive appointments. This Court held that the section in question did not in any manner interfere with the power of the Governor to appoint. "It merely provides that, when he does appoint, his appointment shall be subject to the approval of the senate."

The court in Sewell, supra, acknowledged the constitutionality of the legislation of K.S. 3750 because the court stated that this section would be applied by the court only "when there is nothing in the constitution ... in conflict with the provisions of this statute." Sewell, 220 S.W. at 520. The decision in Sewell did not involve the question of whether the legislature had the power to make such appointments because the specific legislation conferred that power on the governor. The only issue in Sewell was whether the power of appointment was subject to a provision requiring advice and consent by the Senate. Similarly, in Kentucky Ass'n of Realtors v. Musselman, Ky., 817 S.W.2d 213 (1991), a statute required a private body to submit a list of nominees to the governor who then was to make an appointment from that list. This was found by the court to not violate Sections 27 and 28 because the statute:

Gives the General Assembly no voice in the selection of committee members; its reach extends solely to providing a method of selection with reasonable criteria to generate commission members qualified for the position....

Brown did not overrule Sewell and recognized the distinction between the power to appoint and the power to consent. This Court in Brown did not dispute that the legislature had the power to advise and consent but not through their agent, the LRC, while the General Assembly was in recess. In order to determine that the General Assembly had improperly delegated its authority, the court must have had to first recognize that the legislature had such power.

The delegates to the 1890 Constitutional Convention and the Kentucky Constitution itself acknowledge the authority of the Senate to consent to certain appointments by the executive branch. Section 209 of the Constitution provides that the Governor was given power to appoint the first three members of the railroad commission with the advice and consent of the Senate. Kraus claims that the Senate does not have authority to advise and consent because the constitutional convention amended and deleted specific mandatory "advice and consent"...