Va. G. Fox v. Trey Grayson (in His Official Capacity As Sec'y Of State Of The Commonwealth Of Ky.), No. 2009-SC-000066-TG.

• Decision Date: 26 August 2010
• Docket Number: No. 2009-SC-000066-TG.
• Citation: 317 S.W.3d 1
• Parties: Virginia G. FOX, Appellant,v.Trey GRAYSON (In his Official Capacity as Secretary of State of the Commonwealth of Kentucky); Steven L. Beshear (In his Official Capacity as Governor of the Commonwealth of Kentucky); and Pam Miller, Appellees.
• Court: United States State Supreme Court — District of Kentucky

317 S.W.3d 1

Virginia G. FOX, Appellant,v.Trey GRAYSON (In his Official Capacity as Secretary of State of the Commonwealth of Kentucky); Steven L. Beshear (In his Official Capacity as Governor of the Commonwealth of Kentucky); and Pam Miller, Appellees.

No. 2009-SC-000066-TG.

Supreme Court of Kentucky.

April 22, 2010.

Rehearing Denied Aug. 26, 2010.

Paul Emmanuel Salamanca, Lexington, KY, Counsel for Appellant.

Angela C. Evans, Office of the Attorney General, Frankfort, KY, Counsel for Appellee Trey Grayson (In his Official Capacity as Secretary of State of the Commonwealth of Kentucky).

Ellen M. Hesen, General Counsel, Edmund Scott Sauer, Office of General Counsel, Office of the Governor, Frankfort, KY, Counsel for Appellee Steven L. Beshear (In his Official Capacity as Governor of the Commonwealth of Kentucky).

Dennis Lee Taulbee, Council on Postsecondary Education, Frankfort, KY, Counsel for Appellee Pam Miller.

Opinion of the Court by Chief Justice MINTON.

I. INTRODUCTION.

In 1992, the voters approved amendments to § 93 of Kentucky's Constitution. The narrow question now before this Court is whether § 93, as amended in 1992, vests in the Kentucky State Senate alone the right to confirm appointees to so-called inferior state offices and nominees to boards and commissions. After careful consideration, we hold that § 93 of the Constitution, as amended, gives the Senate the sole right of confirmation.

II. FACTUAL AND PROCEDURAL HISTORY.

In July 2007, Governor Ernie Fletcher appointed Virginia Fox to the Council on Postsecondary Education (CPE) for a term expiring December 31, 2012. Fox took her seat on the CPE immediately because the General Assembly was not in session at the time.¹ Before the next session of the General Assembly convened in January 2008, Steven L. Beshear replaced Fletcher as Governor of Kentucky.

During the 2008 regular session of the General Assembly, the Senate voted to confirm Fox's appointment to the CPE; but the House of Representatives failed to act on Fox's appointment before it adjourned sine die.² Because Fox was not confirmed timely by both legislative bodies as KRS 164.011(1) purports to require,³ Governor Beshear's general counsel informed Fox that her seat on the CPE “has become vacant by operation of law.” A few weeks later, Governor Beshear appointed Pam Miller to replace Fox on the CPE. Because the General Assembly was not in session at the time of her appointment, Miller took her seat on the CPE immediately.

Fox filed a declaratory judgment action in the Franklin Circuit Court against Miller; Governor Beshear, in his official capacity; and Trey Grayson, in his official capacity as Secretary of State of the Commonwealth of Kentucky. The heart of Fox's complaint was her contention that § 93 of the Kentucky Constitution vests the Senate with the sole power to confirm appointees such as she. For that reason, Fox argued, Miller's appointment was legally ineffective because Fox had already been duly confirmed by the Senate.

Secretary Grayson filed an answer in which he, essentially, took no position regarding the merits of Fox's complaint. Instead, Secretary Grayson asked to be relieved of any responsibility to file further responsive pleadings and to be designated as a nominal party. Governor Beshear, joined by Miller, however, took an active position against Fox's contentions, choosing-in lieu of an answer-to file a motion to dismiss under Kentucky Rules of Civil Procedure (CR) 12.02, arguing Fox's failure to state a claim upon which relief may be granted.⁴ After briefing was completed, the trial court granted the Governor's motion to dismiss.

Fox appealed that dismissal to the Kentucky Court of Appeals.⁵ Because her appeal involves issues of great and immediate public importance, we granted Fox's unopposed motion to transfer her appeal to this Court. Now, having fully considered the well-presented arguments of the parties, as well as the applicable law, we conclude that Fox's assertion that § 93 of the Kentucky Constitution provides the Senate with the sole power to confirm gubernatorial appointments is correct. We reverse the trial court's order of dismissal and remand this case to Franklin Circuit Court for all necessary further proceedings.

III. ANALYSIS.

A. Section 93 and its Constitutional Predecessors.

In order to understand fully the current version of § 93, we must first examine its historical underpinnings. As the Governor notes, our first two state constitutions each indisputably conferred upon the Senate the exclusive authority to confirm gubernatorial appointments.⁶ Our third constitution, adopted in 1850, however, did not so clearly provide the manner of appointment and confirmation of inferior state officers. Instead, Article III, § 25, of the 1850 Constitution merely provided that “inferior State officers, not specially provided for in this Constitution, may be appointed or elected in such manner as shall be prescribed by law....” ⁷

Our current Kentucky Constitution, our Commonwealth's fourth, was adopted in 1891. As originally adopted, § 93 of our current Constitution provided, in relevant part, that “[i]nferior State officers, not specifically provided for in this Constitution, may be appointed or elected, in such manner as may be prescribed by law....” So, as originally adopted, § 93 was quite similar to its predecessor in the 1850 Constitution.

Section 93 remained unchanged for about a century, during which time the voters of the Commonwealth rejected three proposed amendments to it.⁸ Then, in 1992, the General Assembly enacted SB 226,⁹ which again placed-among other things-proposed amendments to § 93 before the voters of the Commonwealth for their rejection or ratification.¹⁰ Undoubtedly, the most well-known part of SB 226 was a clause permitting many statewide constitutional officers, most notably the Governor, to serve two consecutive terms. This case focuses upon a less heralded part of that bill that gives the Senate the express right to confirm nominees.

The voters approved the proposed constitutional amendments contained in SB 226.¹¹ So, after the amendments of 1992, § 93 reads as follows: ¹²

The Treasurer, Auditor of Public Accounts, Secretary of State, Commissioner of Agriculture, Labor and Statistics, and Attorney General, Superintendent of Public Instruction and Register of the Land Office shall be ineligible to re-election for the succeeding four years after the expiration of the any second consecutive term for which they shall have been elected. The duties and responsibilities of these officers shall be prescribed by law, and all fees collected by any of said officers shall be covered into the treasury. Inferior State officers and members of boards and commissions, not specifically provided for in this Constitution, may be appointed or elected, in such manner as may be prescribed by law, which may include a requirement of consent by the Senate, for a term not exceeding four years, and until their successors are appointed or elected and qualified.¹³

B. Related Statutes.

Although the wording of § 93 is paramount in our analysis, we must also consider related statutes that have a direct bearing on this case.

We have already cited KRS 11.160(2)(h), which permitted Fox to take her seat on the CPE in the interim pending a confirmation vote. But we must also consider KRS 164.011(1), which describes the nomination procedure for members of the CPE. As originally enacted in 1992, that statutory subsection provided as follows:

There shall be a Council on Higher Education in Kentucky, appointed for a term set by law pursuant to Section 23 of the Constitution of Kentucky. The council shall be composed of the chief state school officer, and seventeen (17) lay members appointed by the Governor: one (1) from each Supreme Court district, ten (10) at large members which shall include a student member.¹⁴

In 1994, KRS 164.011 was amended in a manner not germane to this case. In 1997, however, KRS 164.011 was substantively amended to require members to be confirmed by both chambers of the General Assembly.¹⁵ After the 1997 amendments, KRS 164.011(1) provides as follows: ¹⁶

There is hereby created and established a Council on Postsecondary Education in Kentucky as an agency, instrumentality, and political subdivision of the Commonwealth and a public body corporate and politic having all powers, duties, and responsibilities as are provided to it by law, appointed for a term set by law pursuant to Section 23 of the Constitution of Kentucky. The council shall be composed of the commissioner of education, a faculty member, a student member, and thirteen (13) citizen members appointed by the Governor. The citizen members shall be confirmed by the Senate and the House of Representatives under KRS 11.160, and the commissioner of education shall serve as a nonvoting ex officio member. Citizen council members shall be selected from a list of nominees provided to the Governor under the nominating process set forth in KRS 164.005. If the General Assembly is not in session at the time of the appointment, persons appointed shall serve prior to confirmation, but the Governor shall seek the consent of the General Assembly at the next regular session or at an intervening extraordinary session if the matter is included in the call of the General Assembly.

(Emphasis added.)

C. The Main Issue and the Standard of Review.

KRS 164.011(1) clearly purports to require Fox to be confirmed by both chambers of the General Assembly. This bicameral confirmation requirement goes to the heart of Fox's complaint. Essentially, Fox argues that the bicameral confirmation requirement for members of the CPE contained in KRS 164.011(1) violates § 93 of the Kentucky Constitution. In Fox's view, § 93 permits only the Senate to confirm appointees. By contrast, the Governor contends the phrase in § 93 regarding confirmation by the Senate is merely illustrative of how appointees such as Fox could be confirmed;...