MATTHEW G. BEVIN IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY AND COMMONWEALTH OF KENTUCKY, EX REL. MATTHEW G. BEVIN, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY APPELLANTS
COMMONWEALTH OF KENTUCKY EX REL. ANDY BESHEAR, ATTORNEY GENERAL; ANDY BESHEAR, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY; KENTUCKY EDUCATION ASSOCIATION; KENTUCKY STATE LODGE FRATERNAL ORDER OF POLICE; BOARD OF TRUSTEES OF THE TEACHERS' RETIREMENT SYSTEM OF THE STATE OF KENTUCKY; AND BOARD OF TRUSTEES OF THE KENTUCKY RETIREMENT SYSTEMS APPELLEES
APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J.
SHEPHERD, JUDGE NOS. 18-CI-00379 AND 18-CI-00414.
COUNSEL FOR APPELLANT: Mark Stephen Pitt Stephen Chad
Meredith Matthew Kuhn Office of The Governor
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY EX REL. ANDY
BESHEAR, ATTORNEY GENERAL AND ANDY BESHEAR, IN HIS OFFICIAL
CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY:
Andy Be shear Attorney General of Kentucky John Michael Brown
La Tasha Arnae Buckner Steven Travis Mayo Samuel Robert Flynn
Marc Farris Office of The Attorney General
COUNSEL FOR APPELLEE KENTUCKY EDUCATION ASSOCIATION: Jeffrey
Scott Walther Victoria Frances Dickson Walther, Gay, &
COUNSEL FOR APPELLEE KENTUCKY STATE LODGE FRATERNAL ORDER OF
POLICE: David Lindsay Leightty Alison M. Messex Priddy,
Cutler, Naake & Meade, PLLC
COUNSEL FOR APPELLEE BOARD OF TRUSTEES OF THE TEACHERS'
RETIREMENT SYSTEM OF THE STATE OF KENTUCKY: Robert B. Barnes
General Counsel, Kentucky Teachers' Retirement
COUNSEL FOR APPELLEE BOARD OF TRUSTEES OF THE KENTUCKY
RETIREMENT SYSTEMS: Mark C. Blackwell Katherine I. Rupinen
Joseph Patrick Bowman Kentucky Retirement Systems
COUNSEL FOR AMICUS CURIAE, BERTRAM ROBERT STIVERS II, IN HIS
OFFICIAL CAPACITY AS PRESIDENT OF THE KENTUCKY SENATE: David
E. Fleenor R. Vaughn Murphy Tyler Peavler Office of The
COUNSEL FOR AMICUS CURIAE, DAVID W. OSBORNE, IN HIS OFFICIAL
CAPACITY AS SPEAKER PRO TEMPORE OF THE KENTUCKY HOUSE OF
REPRESENTATIVES: David Eric Lycan Office of The Speaker
Governor Matthew G. Bevin, appeals from an opinion and order
of the Franklin Circuit Court granting summary judgment to
the Kentucky Education Association, the Kentucky State Lodge
Fraternal Order of Police, the Board of Trustees of the
Teachers' Retirement System of the State of Kentucky, the
Board of Trustees of the Kentucky Retirement Systems, and
Kentucky Attorney General Andy Beshear, which together we
refer to as "Appellees." Appellants are supported
in this appeal by an Amicus Curiae brief filed by Senate
President, Bertram Robert Stivers, II, and Speaker Pro
Tempore of the Kentucky House of Representatives, David W.
Osborne, together referred to herein as Amicus.
Plaintiffs in the circuit court, Appellees filed suit
challenging the validity of Senate Bill 151 (SB 151), based
upon what they contend to be its flawed enactment. SB 151 was
passed during the 2018 session of the Kentucky General
Assembly and it ostensibly makes several modifications to the
various state government employee pension plans, including
the pension plans for teachers, state police, and county
circuit court held that in passing SB 151 the legislature
violated § 46 of the Kentucky Constitution by failing to
give the bill a reading on three different days in each
legislative chamber (the "three-readings"
requirement), and by failing to obtain 51 votes in the House
of Representatives as required for a bill which appropriates
money or creates a debt. Upon its conclusion that SB 151 was
not passed in compliance with the Kentucky Constitution, the
circuit court voided the bill without addressing the
substantive issues of whether the legislation violated the
inviolable contract status afforded to state pensions under
KRS 161.714 and whether the legislation violated
the prohibition against impairment of contracts contained in
§ 19 of the Kentucky Constitution.
appeal, Appellants first assert that a judicial
interpretation of the three-readings requirement of § 46
is a non-justiciable matter, related exclusively to the
legislative branch of government under principles connected
with separation of powers and the political question
doctrine, and thus, the circuit court erred by adjudicating
it. Consistent with that argument, Appellants further assert
that this Court is without authority to declare the meaning
of § 46.
reasons set forth below, we disagree. Upon review, we
conclude that the passage of SB 151 did not comply with the
three-readings requirement of § 46 and that the
legislation is, therefore, constitutionally invalid and
declared void. Based upon this disposition, we do not address
the arguments challenging the substantive provisions of SB
151. Our disposition renders moot the question of whether SB
151 constitutes an appropriation or created a debt subjecting
it to the 51-vote majority provision of § 46. To address
issues that may or may not recur in subsequent legislation
would be an advisory opinion. The "courts do not
function to give advisory opinions, even on important public
issues, unless there is an actual case in controversy."
Newkirk v. Commonwealth, 505 S.W.3d 770, 774 (Ky.
2016) (quoting Philpot v. Patton, 837 S.W.2d 491,
493 (Ky. 1992)). The substantive merits of any future
legislation on the subject matter before us should proceed
without being influenced by this Court's opinion on the
FACTUAL AND PROCEDURAL BACKGROUND
response to the inadequate funding of Kentucky's public
employee pension systems and a rising concern about the
ability of those systems to meet future obligations, the
Kentucky General Assembly opened its 2018 session with
ambitious plans to address the looming financial threat by
reforming the public pension systems. As an initial step
toward that goal, Senate Bill 1 (SB 1) was introduced in the
Senate on February 20, 2018. With the title, "AN ACT
relating to retirement," SB 1 would make several changes
to the Kentucky Employees Retirement System, County Employees
Retirement System, State Police Retirement System, and
Kentucky Teachers' Retirement System. The title of the
bill is important because Section 51 of the Kentucky
No law enacted by the General Assembly shall relate to more
than one subject, and that shall be expressed in the title,
and no law shall be revised, amended, or the provisions
thereof extended or conferred by reference to its title only,
but so much thereof as is revised, amended, extended or
conferred, shall be reenacted and published at length.
opponents of SB 1 complained that it reduced annual
cost-of-living-adjustments for retired public employees, put
newly-hired employees into a hybrid-cash balance plan rather
than the defined-benefits plans enjoyed by current employees,
and limited the extent to which unused sick-leave credit
could be used to enhance the retirement benefits for current
and future public employees. Resistance to SB 1 led to
protests at the Capitol and in other forums around Kentucky.
Legislative action on the bill stalled. Senate leadership
referred SB 1 back to committee for additional study. No
further action was taken on the bill, but the concern for the
solvency of the pension systems did not subside.
fifty-seventh day of the sixty-day legislative session, the
House Committee on State Government met to address
pension-reform alternatives. Consensus on a plan for reform
was reached. With time waning for legislative action, the
Committee was confronted with § 46's requirement for
the bill to be read at length on three different days.
Section 46 states 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. Every bill shall be read at length on three
different days in each House, but the second and third
readings may be dispensed with by a majority of all the
members elected to the House in which the bill is pending.
the newly agreed-upon reform, the Committee invoked the
following previously-used legislative maneuver: a different
bill which had already been given one or more readings in
each chamber would be "amended" by inserting the
newly agreed-upon pension-reform text, with the expectation
that the previous readings of the bill would count toward the
three-reading requirement. To this end, SB 151 was
had originated in the Senate with the title, "AN ACT
relating to the local provision of wastewater services."
In its original form, SB 151 consisted of eleven pages of
text concerning contracts for the acquisition of local
151 was called in the House, it was amended by a Committee
Substitute containing the pension reform language. The
Committee Substitute removed every word of the bill
pertaining to wastewater facilities and replaced those words
with 291 pages of text addressing pension reform, much of
which had been part of SB 1 but modified to remove the
language that drew the most aggressive opposition.
the Committee Substitute was introduced, SB 151 had already
received three readings on different days in the Senate and
two readings in the House. All the readings of the bill,
however, in both substance and title, were in its form as a
bill pertaining to local wastewater services. The principal
issue before us is whether any of the prior readings of SB
151 in its original form can be counted toward satisfaction
of the three-readings requirement of the bill after its
transformation from a wastewater bill to a pension reform
bill. Appellants and Amicus assert that the prior readings
should count toward the three-reading requirement, while
Appellees contend that none count.
review of SB 151 in its final 291-page version discloses that
the great majority of its text mirrors the language
previously seen in SB 1. SB 1 and SB 151 were identical in
many substantive respects, but the most significant
difference is that the more serious reforms of the
substituted version of SB 151 applied only to future public
employees. Current employees remained largely unaffected.
several legislators opposing the pension reform embodied in
SB 151 raised questions about the procedure by which it was
being considered, none specifically objected to the practice
of stripping out the wastewater services provisions and
replacing them with pension-reform language. Silence on that
aspect of the controversy lends credence to Appellants'
claim that this legislative maneuver has long been regarded
as an acceptable practice in the General Assembly. Among the
issues raised by the legislative opponents was concern that
SB 151, as amended, lacked the actuarial analysis required by
KRS 6.350; that it lacked a statutorily-required fiscal note;
and that it lacked the local government impact study required
by KRS 6.995. They also complained that public input was
averted, and that insufficient time had been allowed for
legislators to review the substitute prior to voting.
newly-inserted language transforming the act from a
wastewater bill to a pension reform bill, SB 151 was voted
out of Committee and reported favorably to the House floor,
where it was immediately called up for final passage. Bearing
only the title "AN ACT relating to the local provision
of wastewater services," SB 1 was read in the full House
"by title only" and then voted on as a pension
summarize, SB 151 with its original wastewater services title
and text was "read" twice in the House before the
introduction of the Committee Substitute that removed and
replaced all its text but left the title intact. Thereafter,
the House again "read" SB 151 by its title as a
wastewater services bill but with the substantive text of a
pension reform bill. Appellants assert that this final
reading of the bill by its title provided the third-reading
required by § 46. The House voted to pass SB 151 by a
vote of 49 to 46 with five members abstaining. After the
voting was completed, the title of SB 151 was then amended to
identify it as a measure relating to retirement and public
pensions, thus, complying with the subject-title match
requirement of Section 51 of the Kentucky Constitution.
its course through the legislative process, SB 151 received
three readings in the Senate as a bill, in substance and
title, pertaining to local wastewater services. In the House,
it received two readings as a bill, in substance and title,
pertaining to local wastewater services, and then it received
a final "reading" in the House, still designated by
title as a bill pertaining to local wastewater service but
with the its textual content relating exclusively to public
pension reform. Consequently, SB 151 was never
"read" in either chamber by its title as an act
relating to retirement and public pensions.
the final vote and in due course, the Speaker Pro Tempore of
the House signed the bill and referred it back to the Senate
the same day, where, with no additional reading by text or
title in its newly-amended form, SB 151 passed by a vote of
22-15. SB 151 was then signed by Senate President Stivers and
sent to the Governor for his signature, which occurred on
April 10, 2018.
Kentucky Attorney General and various associations
representing public employees and retirees promptly brought
an action in Franklin Circuit Court challenging the enactment
and validity of SB 151. With no dispute about the material
facts, the circuit court granted summary judgment to
Appellees. As relevant to this appeal, the circuit court held
that SB 151 was passed in violation of § 46. The circuit
court also determined that the bill constituted an
appropriation and/or the creation of a debt and was thus in
violation of the 51-vote majority requirement of § 46.
Because of the trial court's disposition of the case, it
did not reach the merits of the inviolable contract issue.
Appellants promptly appealed to the Court of Appeals. This
Court accepted immediate transfer of the proceedings pursuant
to CR 74.02.
STANDARD OF REVIEW
trial court granted summary judgment to the Appellees upon
their claims that the procedure by which SB 151 was enacted
violated § 46. The standard of review on appeal when a
trial court grants a motion for summary judgment is
"whether the trial court correctly found that there were
no genuine issues as to any material fact and that the moving
party was entitled to judgment as a matter of law."
Blackstone Mining Co. v. Travelers Ins. Co., 351
S.W.3d 193, 198 (Ky. 2010) (quoting Scifres v.
Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996)); CR 56.03.
Because there are no factual issues in dispute and all issues
before us concern issues of law, our review is de novo.
Owen v. University of Kentucky, 486 S.W.3d 266, 269 (Ky.
LEGISLATIVE COMPLIANCE WITH SECTION 46 IS A JUSTICIABLE
first consider the threshold issue raised by Appellants and
Amicus asserting that the judicial branch should abstain from
adjudicating legislative compliance with § 46's
three-reading requirement because doing so would violate the
well-established doctrine of the non-justiciability of
"political question" doctrine is natural corollary
to the more familiar concept of separation of powers.
Baker v. Carr, 369 U.S. 186, 210 (1962). The
doctrine holds that the judicial branch "should not
interfere in the exercise by another department of a
discretion that is committed by a textually demonstrable
provision of the Constitution to the other department,"
Fletcher v. Commonwealth, 163 S.W.3d 852, 860 (Ky.
2005); or seek to resolve an issue for which it lacks
judicially discoverable and manageable standards, Vieth
v. Jubelirer, 541 U.S. 267, 276 (2004).
argue that the processes and procedures by which a bill
becomes a law are exclusively assigned to the legislative
branch and that the legislature has exclusive authority to
determine what is required by § 46. They argue that
judicial intrusion into that question would violate the
stringent separation of powers doctrine embedded in
Kentucky's constitution. Amicus further contends that,
regardless of the justiciability of the three-readings
requirement, the provision is not mandatory but is instead
merely directory to the legislative branch.
recognize the wisdom and viability of the political question
doctrine, and we acknowledge our obligation to refrain from
interfering with the internal processes and internal rules by
which the other branches perform their constitutional
functions. However, in this instance we are not addressing
whether the passage of SB 151 conformed to the internal rules
and processes of the General Assembly. We are confronted,
instead, with the question of what § 46 of the Kentucky
Constitution means when it says that "[e]very bill shall
be read at length on three different days in each
House"; and whether the enactment of SB 151 comports
with that constitutional provision.
reject the argument that this Court has no voice in that
determination. The foundational principle described in
Marbury v. Madison, 5 U.S. 137, 177-78 (1803), has
been a cornerstone of the American republic for as long as
the republic has endured: "It is emphatically the
province and duty of the judicial department to say what the
law is. Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. . . . This is of
the very essence of judicial duty."
has not wavered in its allegiance to that principle. See
Stephenson v. Woodward, 182 S.W.3d 162, 174 (Ky. 2005)
[J]ust as this court will not infringe upon the independence
of the legislature, we will not cast a blind eye to our own
duty to interpret the Constitution and declare the
law."). Section 46 is not a procedural rule or policy
written and adopted by the legislature to perform its
constitutional function; it is an explicit provision of the
The issue before this Court is not a political
support of the argument that the three-readings requirement
of § 46 is a non-justiciable political question,
Appellants cite § 39 of the Kentucky Constitution, which
provides: "Each House of the General Assembly may
determine the rules of its proceedings." From this
provision, Appellants reason that the three-reading
requirement is a "procedural requirement" imposed
by the Constitution, "leav[ing] it to the General
Assembly to determine how this requirement must be met."
also cite Sibert v. Garrett, 246 S.W. 455, 457 (Ky.
1922), for the frequently-repeated observation that
"[p]erhaps no state forming a part of the national
government of the United States has a Constitution whose
language more emphatically separates and perpetuates what
might be termed the American tripod form of government than
does our Constitution . . . ." We note that
Sibert also reminds us the separation of powers
doctrine "does not destroy the power of the courts to
pronounce an act unconstitutional when its enactment is
either expressly or by necessary implication inhibited and
subversive of the purposes and intention of the makers of the
[Kentucky] constitution . . . ." Id. at 457.
emphasizes that under Kentucky's strong separation of
powers doctrine, the power to declare a legislative enactment
unconstitutional when its enactment violates constitutional
principles is solidly within the Court's constitutional
authority. We reiterated this point in Rose v. Council
To avoid deciding the case because of "legislative
discretion," "legislative function," etc.,
would be a denigration of our own constitutional duty. To
allow the General Assembly (or, in point of fact, the
Executive) to decide whether its actions are constitutional
is literally unthinkable.
790 S.W.2d 186, 209 (Ky. 1989).
Court's power to determine the constitutional validity of
a statute "does not infringe upon the independence of
the legislature." Stephenson, 182 S.W.3d at 174
f[W]e will not cast a blind eye to our own duty to interpret
the Constitution and declare the law."). Far from being
an intrusion into the arena constitutionally assigned to the
legislature, the Kentucky Constitution and the constitutions
of the United States and virtually all states vest the
ultimate authority for discerning the meaning of
constitutional provisions in the judicial branch.
Interpreting the Constitution is, after all, "the very
essence of judicial duty." Marbury, 5 U.S. at
Court's power, indeed, its duty, to declare the meaning
of constitutional provisions is a primary function of the
judicial branch in the scheme of checks and balances that has
protected freedom and liberty in this country and in this
Commonwealth for more than two centuries. The power of
judicial review is an integral and indispensable piece of the
separation of powers doctrine. To desist from declaring the
meaning of constitutional language would be an abdication of
our constitutional duty. Philpot v. Haviland, 880
S.W.2d 550, 553 (Ky. 1994).
Baker v. Can, we recognized in Philpot six
standards for determining when the Courts should defer the
resolution of an issue based upon the ...