State Bd. for Elementary and Secondary Educ. v. Howard

• Citation: 834 S.W.2d 657
• Decision Date: 04 June 1992
• Docket Number: 91-SC-643-TG,Nos. 91-SC-606-T,s. 91-SC-606-T
• Parties: 76 Ed. Law Rep. 1211 STATE BOARD FOR ELEMENTARY AND SECONDARY EDUCATION and Commonwealth of Kentucky, Appellants, v. Raymond HOWARD, Bettie Weyler and Terry Williams, Appellees. The LEGISLATIVE RESEARCH COMMISSION, Appellant. v. Raymond HOWARD, Bettie Weyler and Terry Williams, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 657

834 S.W.2d 657

76 Ed. Law Rep. 1211

STATE BOARD FOR ELEMENTARY AND SECONDARY EDUCATION and Commonwealth of Kentucky, Appellants, v. Raymond HOWARD, Bettie Weyler and Terry Williams,

Appellees.

The LEGISLATIVE RESEARCH COMMISSION, Appellant. v. Raymond HOWARD, Bettie Weyler and Terry Williams,

Appellees.

Nos. 91-SC-606-TG, 91-SC-643-TG.

Supreme Court of Kentucky.

June 4, 1992.

Chris Gorman, Atty. Gen., Robert V. Bullock, Ann M. Sheadel, D. Brent Irvin, Asst. Attys. Gen., and Charles J. Cronan, IV, Judith A. Villines, and Mark R. Overstreet, Stites and Harbison, Frankfort, for appellants.

John Frith Stewart and Dennis Franklin Janes, Segal, Isenberg, Sales, Stewart & Cutler, Louisville, for appellees.

WINTERSHEIMER, Justice.

This appeal is from a summary judgment in a declaratory judgment action. The appeal arises from a constitutional challenge by public school employees to K.R.S. 161.164 and 161.990 which prohibit their involvement in political campaigns for the election of members of local boards of education. The school board employees were successful in the circuit court and the State Board of Elementary and Secondary Education and Commonwealth of Kentucky and the Legislative Research Commission appealed from the summary judgment declaring the statutes to be unconstitutional and enjoining the enforcement of them.

Initially, the circuit court entered a temporary restraining order prohibiting the State Board of Elementary and Secondary Education and other related Boards from enforcing the statute. Subsequently, the circuit court certified Howard, Weyler and Williams as a class consisting of local school district employees in the Commonwealth of Kentucky who have taken part or wish to take part in the management or activities of any political campaign for school board. Thereafter the Legislative Research Commission, by and through Senator John A. Rose and Representative Donald J. Blandford, in their representative capacities as co-chairmen of the LRC, was granted leave to intervene.

Raymond Howard resides in Jefferson County but is employed by the Board of Education of Bullitt County. Bettie Weyler and Terry Williams reside in Bullitt County and are employed by the Board of Education of Bullitt County.

Howard, Weyler and Williams allege that prior to July 13, 1990, the effective date of the Kentucky Education Reform Act, they and members of their families were actively engaged in political campaigns for the Boards of Education for the school districts in which they reside and in which they are employed. The stipulated facts provide that they and their families contributed money and services to school board candidates and campaign committees; made independent expenditures relating to school board election campaigns; contributed money and services to political action committees for school board campaigns; expressed their views both publicly and privately regarding school board elections and cast votes in the school board elections. Howard, Weyler and Williams claim that K.R.S. 161.164(1), 161.164(2), 161.990(1) and 161.990(2) prohibit them from engaging in activities such as these and are therefore unconstitutional.

K.R.S. 161.164(1) prohibits employees of local school districts from taking part in the "management or activities of any political campaign for school board." K.R.S. 161.164(2) forbids school board candidates from soliciting or accepting "any political assessment, subscription, contribution or service of any employee of the school district." K.R.S. 161.990(1) and (2) establish penalties for the violation of K.R.S. 161.164. The employees allege that these statutes are unconstitutional because they deprive them of their right of free speech, free association, free assembly, equal protection of the law, substantive due process and procedural due process. The circuit court entered an injunction prohibiting the enforcement of the statutes and determined that the statutes were unconstitutional. This appeal followed.

Both the State Board of Education and the LRC appeal the judgment of the circuit court urging that this Court declare the statutes valid and enforceable and vacate the injunction barring their enforcement. The State Board of Education argues that the statutes are essential to Kentucky Education Reform so that the state school system will operate in a constitutionally efficient manner required by the Kentucky Constitution as construed by this Court. They assert that similar statutes have been upheld by the U.S. Supreme Court and other states when challenged for vagueness and overbreadth.

The LRC contends that these statutes are narrowly drawn to serve a compelling state interest, and that they are not susceptible to arbitrary enforcement. They claim they are intelligible and unambiguous and neither vague nor overbroad and must be upheld. The LRC also argues that pursuant to K.R.S. 446.090, there is an opportunity to sever any possible unconstitutional parts of the statutes.

This Court, in Rose v. Council for Better Education, Ky., 790 S.W.2d 186 (1989), determined that Section 183 of the Kentucky Constitution placed a duty on the General Assembly to establish an efficient common school system free from political influence. The statutes in question were enacted by the General Assembly in an effort to comply with this Court's directive. Our task is to determine whether the statutes are valid or whether they are vague or overbroad.

It is beyond question that the challenged statutes invade areas of constitutionally protected conduct, from contributing to political races to becoming actively involved and managing campaigns of such candidates and even to voting. Under the circumstances, a reviewing court must consider whether such statutes are narrowly tailored to serve a compelling state interest. Government has the right to prohibit state employees from active participation in politics provided that the limitation is expressed in terms that an ordinary person exercising common sense can sufficiently understand and comply with. City of Louisville v. Fitzgerald, Ky., 600 S.W.2d 456 (1978). This Court has previously noted that among the most fundamental of constitutional rights is the right of citizens to involve themselves in the electoral process. Commonwealth v. Foley, Ky., 798 S.W.2d 947 (1990). As we consider this matter, the crucial element is the balancing of compelling state interests against the interests of citizens in participating in the political process. Foley, supra. The critical question is whether the legislature in restricting the political expression of school employees has unnecessarily infringed on the constitutional rights of the employees.

The threat of dismissal from public employment is a powerful means of inhibiting free speech. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). No statute may unnecessarily chill the exercise of the rights guaranteed constitutional protection. A statute is unconstitutionally overbroad if it needlessly prohibits constitutionally protected activities or may be enforced in an arbitrary manner. Foley.

Historically, statutes such as those enacted by the Kentucky legislature and challenged in this case are not new. Since the inception of this nation, persons concerned with insuring effective governmental service free from undue political influence, have had to consider the necessary tension between the right of free political expression and the legitimate concern of government service. The United States Supreme Court has on several occasions, upheld state laws which limit the participation of government employees in political activities. The seminal case in this area is ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882). Originally the early cases related to political involvement of federal government employees. United States v. Wurzback, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947). One of the leading cases in construing the Hatch Act, 5 U.S.C. Sec. 7324(a)(2), which limited participation by federal employees in election matters was United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). The U.S. Supreme Court reaffirmed the earlier principles and held that neither the First Amendment nor any other provision of the Constitution invalidates a law barring certain kinds of partisan political conduct by federal employees. Contemporaneous with Letter Carriers, supra, the United States Supreme Court rendered Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), which addressed the restrictions of the State of Oklahoma on political activities of its employees.

Here, the employees first argue that the restrictions placed on their political speech and association are unconstitutionally overbroad and vague. The controlling Kentucky decision in this regard is Foley which examined the constitutionality of K.R.S. 119.205, a statute that imposed criminal penalties on those who received anything of value for the purpose of procuring or influencing a vote.

A statute is vague if "men of common intelligence must necessarily guess at its meaning." Broadrick, supra. In Kentucky the test has been expressed as "whether a person disposed to obey the law could determine with reasonable certainty whether contemplated conduct would amount to a violation." Foley.

In reviewing the standard for vagueness, this Court and the United States Supreme Court have followed two general principles underlying the concept of vagueness. First, a statute is impermissibly vague if it does not place someone to whom it applies on actual notice as to what conduct is prohibited; and second, a statute is impermissibly vague if it is written in a manner that encourages arbitrary and discriminatory enforcement. Cf. Musselman v....