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Westerfield v. Ward

Supreme Court of Kentucky

June 13, 2019

WHITNEY WESTERFIELD, IN HIS OFFICIAL CAPACITY AS SENATOR; WHITNEY WESTERFIELD;JOSEPH FISCHER IN HIS OFFICIAL CAPACITY AS REPRESENTATIVE; JOSEPH FISCHER MARSY'S LAW FOR KENTUCKY, LLC; AND MARSY'S LAW FOR KENTUCKY, A POLITICAL ISSUES COMMITTEE APPELLANTS
v.
DAVID M. WARD; KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, INC.;ALLISON LUNDERGAN GRIMES, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE; AND THE KENTUCKY STATE BOARD OF ELECTIONS, EX REL, ALLISON LUNDERGAN GRIMES, IN HER OFFICIAL CAPACITY AS CHAIRMAN AND CHIEF ELECTION OFFICIAL FOR THE COMMONWEALTH APPELLEES AND DAVID M. WARD AND KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, INC. APPELLANTS
v.
WHITNEY WESTERFIELD, IN HIS OFFICIAL CAPACITY AS SENATOR; WHITNEY WESTERFIELD; JOSEPH FISCHER IN HIS OFFICIAL CAPACITY AS REPRESENTATIVE; JOSEPH M. FISCHER; MARSY'S LAW FOR KENTUCKY, LLC; MARSY'S LAW FOR KENTUCKY, A POLITICAL ISSUES COMMITTEE; ALLISON LUNDERGAN GRIMES, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE; AND THE KENTUCKY STATE BOARD OF ELECTIONS, EX REL, ALLISON LUNDERGAN GRIMES, IN HER OFFICIAL CAPACITY AS CHAIRMAN AND CHIEF ELECTION OFFICIAL FOR THE COMMONWEALTH APPELLEES

          ON TRANSFER FROM COURT OF APPEALS NOS. 2018-CA-001510, 2018-CA-001552 FRANKLIN CIRCUIT COURT NO. 18-CI-00794 HONORABLE THOMAS D. WINGATE

          COUNSEL FOR APPELLANTS WHITNEY WESTERFIELD, WHITNEY WESTERFIELD, IN HIS OFFICIAL CAPACITY AS SENATOR AND JOSEPH FISCHER AND JOSEPH FISCHER IN HIS OFFICIAL CAPACITY AS REPRESENTATIVE: David E. Fleenor Office of the Senate President

          COUNSEL FOR APPELLANTS MARSY'S LAW FOR KENTUCKY, LLC; AND MARSY'S LAW FOR KENTUCKY, A POLITICAL ISSUES COMMITTEE: Sheryl G. Snyder Jason Patrick Renzelmann Samuel William Wardle Frost Brown Todd, LLC

          COUNSEL FOR APPELLEE DAVID M. WARD: James David Niehaus

          COUNSEL FOR APPELLEE KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, INC.: Robert Kenyon Meyer Dinsmore 85 Shohl, LLP

          COUNSEL FOR APPELLEE ALLISON LUNDERGAN GRIMES, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE: Katherine Lacy Crosby Jonathan Todd Salomon Tachau Meek, PLC

          COUNSEL FOR APPELLEE THE KENTUCKY STATE BOARD OF ELECTIONS, EX REL, ALLISON LUNDERGAN GRIMES, IN HER OFFICIAL CAPACITY AS CHAIRMAN AND CHIEF ELECTION OFFICIAL FOR THE COMMONWEALTH: Elizabeth Chesnut Barrera Daniel Luke Morgan McBrayer, McGinnis, Leslie & Kirkland, PLLC

          OPINION

         MINTON, CHIEF JUSTICE

         We accepted transfer of this appeal from the judgment of the Franklin Circuit Court that invalidated the submission of a proposed constitutional amendment to the voters of Kentucky in a single-sentence ballot question. We hold that the issue of whether the proposed amendment was properly submitted to and adopted by the voters is justiciable. We further hold that Sections 256 and 257 of the Kentucky Constitution require the entirety of a proposed constitutional amendment to be published and submitted to the voters irrespective of statutory requirements prescribed by the legislature. The proposed amendment as submitted to the voters in the form of the present ballot question is invalid. Accordingly, we affirm the judgment of the Franklin Circuit Court.

         I. FACTS AND BACKGROUND.

         Under Sections 256 and 257 of the Kentucky Constitution, the General Assembly has the authority to propose a constitutional amendment to be published and submitted to the people for ratification. Section 256 governs the process for submitting a proposed amendment to the electorate and provides, in pertinent part:

Amendments to this Constitution may be proposed in either House of the General Assembly at a regular session, and if such amendment or amendments shall be agreed to by three-fifths of all the members elected to each House, such proposed amendment or amendments, with the yeas and nays of the members of each House taken thereon, shall be entered in full in their respective journals. Then such proposed amendment or amendments shall be submitted to the voters of the State for their ratification or rejection at the next general election for members of the House of Representatives, the vote to be taken thereon in such manner as the General Assembly may provide, and to be certified by the officers of election to the Secretary of State in such manner as shall be provided by law, which vote shall be compared and certified by the same board authorized by law to compare the polls and give certificates of election to officers for the State at large.[1]

Section 257 governs publication of the amendment to the electorate. That section provides, in full:

Before an amendment shall be submitted to a vote, the Secretary of State shall cause such proposed amendment, and the time that the same is to be voted upon, to be published at least ninety days before the vote is to be taken thereon in such manner as may be prescribed by law.[2]

         The General Assembly enacted Kentucky Revised Statute (KRS) 118.415 ostensibly to implement Sections 256 and 257. That statute provides generally that the amendment to be published and submitted to the electorate may be in the form of a ballot question. It also provides the process by which the ballot question must be published and submitted to the electorate. The statute states, in pertinent part, the following:

(1) The General Assembly may state the substance of the amendment proposed to the Constitution of Kentucky in the form of a question in a manner calculated to inform the electorate of the substance of the amendment. When an amendment to the Constitution has been proposed by the General Assembly, the Secretary of State shall cause the question calculated to inform the electorate of the substance of the amendment which is prepared by the General Assembly or the Attorney General to be published at least one (1) time in a newspaper of general circulation published in this state, and shall also cause to be published at the same time and in the same manner the fact that the amendment will be submitted to the voters for their acceptance or rejection at the next regular election at which members of the General Assembly are to be voted for. The publication shall be made not later than the first Tuesday in August preceding the election at which the amendment is to be voted on.[3]

         On January 2, 2018, Senator Whitney Westerfield introduced Senate Bill 3 ("SB 3"), entitled "AN ACT proposing to create a new section of the constitution of Kentucky relating to crime victim's rights." SB 3, colloquially known as "Marsy's Law," proposed an amendment to the Kentucky Constitution that would provide certain rights to crime victims. Section 1 of SB 3, which contains the text of the proposed amendment, provides the following:

         SECTION 1. IT IS PROPOSED THAT A NEW SECTION BE ADDED TO THE CONSTITUTION OF KENTUCKY TO READ AS FOLLOWS:

To secure for victims of criminal acts or public offenses justice and due process and to ensure crime victims a meaningful role throughout the criminal and juvenile justice systems, a victim, as defined by law which takes effect upon the enactment of this section and which may be expanded by the General Assembly, shall have the following rights, which shall be respected and protected by law in a manner no less vigorous than the protections afforded to the accused in the criminal and juvenile justice systems: victims shall have the reasonable right, upon request, to timely notice of all proceedings and to be heard in any proceeding involving a release, plea, sentencing, or other matter involving the right of a victim other than grand jury proceedings; the right to be present at the trial and all other proceedings, other than grand jury proceedings, on the same basis as the accused; the right to proceedings free from unreasonable delay; the right to consult with the attorney for the Commonwealth or the attorney's designee; the right to reasonable protection from the accused and those acting on behalf of the accused throughout the criminal and juvenile justice process; the right to timely notice, upon request, of release or escape of the accused; the right to have the safety of the victim and the victim's family considered in setting bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction; the right to full restitution to be paid by the convicted or adjudicated party in a manner to be determined by the court, except that in the case of a juvenile offender the court shall determine the amount and manner of paying the restitution taking into consideration the best interests of the juvenile offender and the victim; the right to fairness and due consideration of the crime victim's safety, dignity, and privacy; and the right to be informed of these enumerated rights, and shall have standing to assert these rights. The victim, the victim's attorney or other lawful representative, or the attorney for the Commonwealth upon request of the victim may seek enforcement of the rights enumerated in this section and any other right afforded to the victim by law in any trial or appellate court with jurisdiction over the case. The court shall act promptly on such a request and afford a remedy for the violation of any right. Nothing in this section shall afford the victim party status, or be construed as altering the presumption of innocence in the criminal justice system. The accused shall not have standing to assert the rights of a victim. Nothing in this section shall be construed to alter the powers, duties, and responsibilities of the prosecuting attorney. Nothing in this section or any law enacted under this section creates a cause of action for compensation, attorney's fees, or damages against the Commonwealth, a county, city, municipal corporation, or other political subdivision of the Commonwealth, an officer, employee, or agent of the Commonwealth, a county, city, municipal corporation, or any political subdivision of the Commonwealth, or an officer or employee of the court. Nothing in this section or any law enacted under this section shall be construed as creating:
(1)A basis for vacating a conviction; or
(2)A ground for any relief requested by the defendant.[4]

         The General Assembly, under KRS 118.415, prepared a ballot question to be published and submitted to the voters for their ratification. That question is included in Section 2 of SB 3 and states the following:

Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?[5]

         SB 3 passed the Kentucky House and Kentucky Senate on January 24, 2019 and was enrolled on January 25, 2018. That same day, SB 3 was delivered to the Secretary of State, Alison Lundergan Grimes ("Secretary Grimes") to be published and submitted to the electorate at the November 6, 2018 election. On July 22, 2018, Secretary Grimes published the proposed question in the Louisville Courier-Journal and the Lexington Herald-Leader. On August 27, 2018, Secretary Grimes certified the question to the county clerks for placement on the November 6, 2018 ballot.

         On August 7, 2018, Appellees, David M. Ward and Kentucky Association of Criminal Defense Lawyers, Inc. (together, "KACDL") filed a declaratory judgment action in Franklin Circuit Court against Secretary Grimes in her official capacity and the State Board of Elections, seeking a declaration that the ballot question in SB 3 failed to inform the voters adequately of the substance of the amendment in violation of Kentucky's statutory and constitutional requirements. The action also sought, in the alternative, injunctive relief that would prevent Secretary Grimes from certifying the ballot question to the county clerks or would direct her to rescind her certification if made.

         On August 20, 2018, the Appellants, Senator Whitney Westerfield and Marsy's Law for Kentucky, LLC, (together, "Westerfield") filed an Intervening Answer.[6] KACDL filed a motion for summary judgment, Westerfield filed a cross-motion for summary judgment, and arguments were heard on October 9, 2018.

         On October 15, 2018, the Franklin Circuit Court ruled that the ballot question did not adequately state the substance of the amendment and thereby violated the requirement in KRS 118.415 that the question be "in a manner calculated to inform the electorate of the substance of the amendment." Accordingly, the circuit court allowed the question to appear on the ballot at the November 6, 2018 election, but enjoined Secretary Grimes from certifying the ballots cast for or against the proposed amendment. On the same day as the circuit court's ruling, Westerfield filed a Notice of Appeal, and KACDL filed a Notice of Cross Appeal, to the Court of Appeals. And this Court accepted transfer of that appeal from the Court of Appeals.

         The proposed amendment was approved by the voters at the November election with 63 percent of the vote.[7]

         II. ANALYSIS.

         1. This Court has the authority to hear a constitutional challenge to a proposed constitutional amendment after it has been adopted by the voters.

         Before addressing the merits of Westerfield's statutory and constitutional claims, we consider whether we have the authority to do so. Relying on the doctrine of separation of powers, Westerfield argues that the issue of whether the amendment was properly adopted-under either statutory or constitutionally mandated procedures-is a nonjusticiable political question because the ballot referendum has been conducted and the people have voted to adopt the amendment. In Westerfield's view, to assume jurisdiction to declare void a constitutional amendment adopted by the people would be an invasion of the legislative function of the people and would violate the "unusually forceful" separation of powers doctrine embedded in Kentucky's Constitution. Having rejected such an argument with respect to alleged constitutional violations on at least two occasions, we again find this issue to be justiciable.

         Although we recognize that Kentucky's Constitution contains a uniquely stringent separation of powers provision, [8] we note that the 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 . . . ."[9] That sentiment is especially true when the act is an amendment to the ...


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