Philpot v. Patton

• Citation: 837 S.W.2d 491
• Decision Date: 24 September 1992
• Docket Number: No. 92-SC-261-I,92-SC-261-I
• Parties: Senator Tim PHILPOT and Senator David Williams, in their capacity as members of the Kentucky State Senate, Appellants, v. Paul PATTON, in his capacity as Lt. Governor of Kentucky and President of the Kentucky State Senate; et al., Appellees.
• Court: United States State Supreme Court (Kentucky)

Page 491

837 S.W.2d 491

Senator Tim PHILPOT and Senator David Williams, in their capacity as members of the Kentucky State Senate Appellants, v. Paul PATTON, in his capacity as Lt. Governor of Kentucky and President of the Kentucky State Senate; et al Appellees.

No. 92-SC-261-I.

Supreme Court of Kentucky.

Sept. 24, 1992.

Senator Tim Philpot, Senator David Williams, Frankfort, for appellants.

Chris Gorman, Atty. Gen., Thomas J. Hellmann, Asst. Atty. Gen., Frankfort, for appellees.

LEIBSON, Justice.

This suit originated with a Complaint filed in Franklin Circuit Court on March 26, 1992, by two Kentucky State Senators against the presiding officer of the Kentucky State Senate, which was then in session, and, by name, all of the remaining members of that body, in their official capacity.

The Complaint stated as a cause of action: (1) that the Senate Judiciary Committee had refused and failed to report within a reasonable time, three bills properly filed and referred to that Committee; (2) that Senators Philpot and Williams were empowered by Section 46 of the Kentucky Constitution to have these bills "called up" and "considered as though they had been reported; and (3) that their constitutional rights as members of the Senate to a proper consideration of these bills has been thwarted by Senate Rule 48. Senate Rule 48 required "a majority of the members elected to the Senate [to] concur" in a discharge petition before "the bill shall be considered as though it had been regularly reported."

The Complaint sought declaratory relief through an order of court declaring Senate Rule 48 "unconstitutional to the extent that it does not comply with Section 46 of the Constitution," and injunctive relief in the form of a court order to the Clerk and members of the Senate that these bills be placed "on the Orders of the Day for the third time and move upon said bills for passage, or in the alternative, immediately be placed on the Orders of the Day for passage, called up and voted upon on their merits."

The final judgment in the trial court denied injunctive relief, declared the members of the Senate immune from suit regarding their official actions and also immune from judicial interference with their internal operations, and, finally, decided on the merits that "Senate Rule 48 of the 1992 Kentucky General Assembly is not violative of Section 46 of the Kentucky Constitution but is a rule of procedure within Section 46 as contemplated by Section 39 of the Kentucky Constitution."

On appeal the appellants have restructured their claim for relief, both in their brief and in oral argument, to conform more specifically to the constitutional language, which states in Kentucky Constitution Section 46, 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.... But whenever a Committee refuses or fails to report a bill submitted to it in a reasonable time, the same may be called up by any member, and be considered in the same manner it would have been considered if it had been reported."

Under Senate Rule 56, which stands unchallenged in these proceedings, no further action was to be taken on a bill reported from Committee unfavorably or without the expression of opinion unless a majority of the members of the Senate concur therein. At this stage of the present case Senators Philpot and Williams seek only the right to have their bills called to the floor and placed in the same posture as a bill reported from Committee unfavorably or without the expression of opinion.

Since Kentucky Constitution Section 42 specifies that "no regular session shall extend beyond April 15," both the Senators' bills and the Senate Rules for the regular session were within two weeks of expiration when the trial court entered its judgment. Thus, in addition to appealing, the Senators sought extraordinary relief, first in the Court of Appeals pursuant to CR 65.07 and 65.08, and when that was denied, in this Court pursuant to CR 65.09(3) and 76.33. Chief Justice Robert Stephens heard and denied the request for emergency relief under CR 76.33, and the legislative session expired before the entire Court could undertake review under CR 65.09. A hearing was set before the full Court on this Motion on May 5, 1992, and, in the interim, the Court of Appeals recommended, and we granted, transfer of the direct appeal from the trial court's judgment. Briefs were filed and oral argument was held on both the CR 65.09 motion and the direct appeal on the date specified.

The threshold question is whether the controversy over Senate Rule 48 is moot because the legislative session has expired. Appellees argue:

"Since a legislative body 'ceases to exist at the moment of its adjournment,' Legislative Research Com'n v. Brown, Ky., 664 S.W.2d 907, 915 (1984), the rules of a particular session of that body must necessarily cease to exist at that same moment."

The three bills in question expired in the same manner.

Two conditions are necessary to revive this controversy: (1) Senate Rule 48 must be reenacted at the next legislative session in the same form, calling for a majority vote in favor of a discharge petition before a member of the Senate can call to the floor a bill he believes is being unreasonably withheld in Committee; and (2) these bills must be reintroduced or other bills introduced before the Senate at the next regular session of the General Assembly. Even then, for this case to be in the same posture as it is now, it will be necessary for the Senate Judiciary Committee or other Senate Committee to again refuse to report, or fail to report, the bills from Committee beyond the Committee's last meeting. Accordingly, the appellants point to the substantial likelihood that even if their complaints here are legally justified, when reintroduced at the next session of the Senate, their bills will once again be buried in Committee, they will once again be denied, without recourse, their constitutional right to call such bills to the floor where they can move that they be put on the calendar.

Appellants claim, and appellees concede, that Senate Rule 48, or one sufficiently similar to accomplish the same purpose, has been reenacted by the Senate as part of its rules at every session for many years. Thus appellants take the position that, while the controversy over the particular bills the appellants wished to call up before the Senate is now moot, the merits of the underlying controversy are not similarly moot. Given the strong probability that the same rule will be enacted for the next session, and the strong likelihood that the present situation will be repeated with another bill at the next legislative session, and the reasonable certainty that there will once again be no way to address the grievance in timely fashion which would permit a bill buried in Committee to come to the floor during the session, appellants claim they have a constitutional right but are left without a remedy unless we review the merits of this case.

In Lexington Herald-Leader Co., Inc. v. Meigs, Ky., 660 S.W.2d 658 (1983), we addressed the merits of a controversy that was moot, under "the standard, 'capable of repetition, yet evading review.' " Id. at 661. We did so because the case involved "important questions ... related to public access, and more particularly news media access, to criminal trials," more specifically, voir dire examination. By its nature voir dire examination takes place over a brief span, usually a day or two, and if the public or press is excluded from all or any part of such examination and questions the constitutionality of such exclusion, the trial will progress past the point where relief is possible and before an appellate court can consider the merits of the controversy. Whether to apply the exception to the rule that a case will be dismissed when the issues are moot which we have recognized when the issues are "capable of repetition, yet evading review," involves more than just an important public question that is difficult to review. Our courts do not function to give advisory opinions, even on important public issues, unless there is an actual case in controversy. The decision whether to apply the exception to the mootness doctrine basically involves two questions: whether (1) the "challenged action is too short in duration to be fully...