RENDERED: MAY 21, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0629-MR
LEGISLATIVE RESEARCH COMMISSION APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 19-CI-00116
DAVID LEIGHTTY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: The Legislative Research Commission (“Appellant” or
“LRC”) appeals from an order of the Franklin Circuit Court entered on April 6,
2020, denying its motion to dismiss an action filed by David Leightty
(“Appellee”). Appellant argues that the Franklin Circuit Court erred in failing to
conclude that legislative immunity shields the disclosure of records requested by
Appellee, that legislative immunity was not waived as to the requested records, and
that the General Assembly’s policy regarding a member’s telephone and electronic
mail records is a nonjusticiable political question. For the reasons addressed
below, we find no error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
On April 2, 2018, Appellee made an open records request with former
LRC director David Byerman in which he sought: 1) all records of messages left
for Representative Jason Nemes through the Legislative Message Line (1-800-372-
7181) from January 2, 2018, to the present; and 2) all records of messages left for
Representative Jason Nemes through his “Email Your Legislator” and “Legislative
In-Box” web pages for the same dates. Within three business days, LRC General
Counsel Greg Woosley informed Appellee that the requested messages were
confidential and privileged communications pertaining to the business of the
General Assembly and were protected from disclosure by various provisions of
Kentucky Revised Statutes (“KRS”) Chapters 7 and 61, as well as Kentucky
Constitution Section 43.
Appellee then filed the instant action in Franklin Circuit Court on
February 1, 2019, in which he sought a judicial declaration that Appellant’s
response violated the Kentucky Open Records Act.1 Prior to answering the
1
KRS 61.870, et seq.
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complaint, and pursuant to Kentucky Rules of Civil Procedure (“CR”) 12.02(a),
(b), and (e), Appellant filed a motion to dismiss the complaint for lack of subject
matter jurisdiction and lack of personal jurisdiction due to insufficient service of
process. On the issue of subject matter jurisdiction, Appellant argued that
Appellee was required to submit a “request for review” directed to the LRC,
without which the circuit court was without subject matter jurisdiction to hear a
requester’s claim. Appellant also asserted a general claim of legislative immunity.
On the question of personal jurisdiction, Appellant asserted that it was improperly
served. It noted that Appellee served the complaint on President of the Senate and
Co-Chair of the LRC, Senator Robert Stivers, via certified mail. Further, a person
identified as Brian Howard signed the receipt, and Appellant stated that this person
was not associated with the LRC.
The matter proceeded in Franklin Circuit Court, whereupon the circuit
court entered an order on April 6, 2020, denying the motion to dismiss. In support
of the order, the circuit court found that the applicable statutes do not require a
request for review before a party may commence an action in a circuit court. As to
Appellant’s argument that the circuit court lacked subject matter jurisdiction, the
circuit court determined that the requested information, i.e., messages from
constituents and other parties to a member of the General Assembly, does not
involve any legislative act implicating legislative immunity. Finally, as to the
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claim that the circuit court lacked personal jurisdiction due to improper service of
process, the court determined that even if service were initially improper, a
subsequent re-issuance of the summons could easily remedy the problem as no
prejudice resulted and Appellee was yet to file an answer. In addition, it found that
Kentucky courts have routinely held that defective service issued in good faith may
be sufficient to commence an action. Ultimately, the Franklin Circuit Court denied
Appellant’s motion to dismiss, and this appeal followed.2
ARGUMENTS AND ANALYSIS
Appellant argues that the Franklin Circuit Court erred in failing to
conclude that legislative immunity applies to shield the disclosure of the requested
records. After directing our attention to provisions of the United States
Constitution and Kentucky Constitution granting a privilege for debate or speech in
either House,3 Appellant asserts that the requested records directly relate to the
legislative process and are thus shielded by legislative immunity. Appellant argues
that the telephonic and electronic messages communicated by constituents and the
general public to state legislators are relied upon by those members when they
2
The order on appeal is not designated as final and appealable. As a general rule, the denial of a
motion to dismiss is not appealable. Halle v. Banner Industries of N.E., Inc., 453 S.W.3d 179,
184 (Ky. App. 2014). The denial of a motion to dismiss based on immunity, however, is an
exception to the general rule and is immediately appealable. Breathitt County Bd. of Educ. v.
Prater, 292 S.W.3d 883, 887 (Ky. 2009) (“an order denying a substantial claim of absolute
immunity is immediately appealable even in the absence of a final judgment.”).
3
U.S. CONST. art. I, § 6, cl. 1, and KY. CONST. § 43.
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propose, debate, and ultimately vote upon legislation. These communications, it
argues, are related to core legislative functions of speech, debate, and legislative
enactment, and are directly tied to the legislative process; therefore, they are
privileged and immune from disclosure. Appellant argues that such
communications could be used to improperly question why a member of the
General Assembly chose to take or not to take a particular official act. Appellant
also asserts that the privilege was not waived. Finally, Appellant maintains that the
General Assembly’s policy regarding a member’s telephone and electronic mail
records is a nonjusticiable political question. Believing that a legislative political
question is not subject to judicial review, Appellant argues that the Franklin Circuit
Court lacked subject matter jurisdiction to consider the claims raised by the
Appellee. In sum, Appellant seeks an opinion reversing the ruling of the Franklin
Circuit Court as to legislative immunity and subject matter jurisdiction and
remanding the matter with directions to dismiss Appellee’s complaint.
The United States Constitution, Article 1, Section 6, and the Kentucky
Constitution, Section 43, grant legislative immunity protecting legislators from
liability for actions related to legislative acts. “State and federal legislators are
generally immune from civil or criminal actions for acts committed or statements
made in their official capacities.” Wiggins v. Stuart, 671 S.W.2d 262, 264 (Ky.
App. 1984). This immunity applies not only to speech and debate, “but also to
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voting, reporting and every official act in the execution of legislative duties while
in session.” Kraus v. Kentucky State Senate, 872 S.W.2d 433, 440 (Ky. 1993)
(citing Wiggins, supra). This immunity covers matters which are integral to the
deliberative and communicative processes with respect to both the consideration
and passage of legislation as well as other constitutional acts within the jurisdiction
of the legislature. Gravel v. United States, 408 U.S. 606, 625, 92 S. Ct. 2614,
2627, 33 L. Ed. 2d 583 (1972). The protections of legislative immunity are well-
established and are inculcated into the common law of the United States and the
Commonwealth, Baker v. Fletcher, 204 S.W.3d 589, 593 (Ky. 2006), and are to be
liberally construed. Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed.
1019 (1951).
The first question for our consideration is whether the requested
records, i.e., messages from third parties maintained on the Legislative Message
Line and Email Your Legislator services, constitute legislative acts, or are
otherwise reasonably characterized as official acts protected by the broad scope of
legislative immunity.4 In considering this question, the Franklin Circuit Court was
4
As noted below, the Franklin Circuit Court considered only the limited question of whether it
had jurisdiction to consider Appellee’s complaint. The circuit court did not examine the
requested documents and expressly made no determination as to whether there were legitimate
grounds to withhold the records from public disclosure. In like fashion, the scope of this appeal
is limited to whether the Franklin Circuit Court properly denied Appellant’s motion to dismiss.
Nothing herein should be construed as addressing the ultimate question of whether there are
legitimate grounds to withhold the records from public disclosure.
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unable to identify any legislative act which was entitled to immunity. Having
closely examined the record and the law, we find no error in that conclusion.
Appellee did not request any records prepared by or communicated by
Representative Nemes. Rather, Appellee sought records of communications made
by third parties to Representative Nemes. As the circuit court properly so found,
these messages are unconnected with the deliberative process of considering,
passing, or rejecting legislation. Gravel, supra. These messages, presumably from
constituents and other interested persons, were not generated by Representative
Nemes, his staff, nor Appellant, and are not part of the legislative process for
purposes of Appellant’s motion to dismiss.
When considering a motion to dismiss, the pleadings should be
“construed in a light most favorable to the plaintiff and all allegations taken in the
complaint to be true.” Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987)
(citing Ewell v. Central City, 340 S.W.2d 479 (Ky. 1960)). On appeal, we must
also take the allegations as true. James v. Wilson, 95 S.W.3d 875, 889 (Ky. App.
2002). A circuit court should not grant a motion to dismiss “unless it appears the
[plaintiff] would not be entitled to relief under any set of facts which could be
proved in support of his claim.” Mims v. Western-Southern Agency, Inc., 226
S.W.3d 833, 835 (Ky. App. 2007) (quoting James, 95 S.W.3d at 883-84). When
construing the pleadings in a light most favorable to Appellee and taking all
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allegations in the complaint as true, we conclude that the Franklin Circuit Court
did not err in denying the motion to dismiss on this issue.
In a related argument, Appellant contends that the General Assembly
did not waive immunity. It forwards this argument in response to Appellee’s
claim, as set out in his complaint and supportive pleadings, that the General
Assembly waived legislative immunity. The General Assembly expressly
provided for a right to judicial review of Appellant’s denials of open records
requests. See Harilson v. Shepherd, 585 S.W.3d 748, 759 (Ky. 2019) (reaffirming
the Franklin Circuit Court’s proper exercise of subject matter jurisdiction over
open records requests). By establishing a mechanism for seeking open records and
providing for judicial review of adverse decisions of Appellant, the General
Assembly waived legislative immunity. We find no error in the Franklin Circuit
Court’s conclusion on this issue.
Lastly, Appellant argues that the General Assembly’s policy regarding
a member’s telephone and electronic mail records is a nonjusticiable political
question outside the jurisdiction of the circuit court. It asserts that although this
issue was not addressed by the circuit court, it may be raised at any time because it
is jurisdictional in nature. Appellant directs our attention to Des Moines Register
and Tribune Company v. Dwyer, 542 N.W.2d 491 (Iowa 1996), wherein the Iowa
Supreme Court considered a challenge by the Des Moines Register under the Iowa
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open records law to the Iowa Senate’s refusal to release records of telephone calls
made by and to Iowa state senators. The Iowa high court determined that it was
entirely the prerogative of the legislature to make, interpret, and enforce its own
procedural rules as to telephonic records, and that such procedures were outside the
scope of judicial review unless constitutional questions were implicated. Id. at
496. Appellant argues that as in Dwyer, the present case involves a request by
Appellee for records of phone and electronic mail messages from members of the
public to members of the Kentucky House of Representatives. Appellant asserts
that in light of Dwyer, and as no constitutional question is presented, the decision
to disclose or not to disclose the requested records is a nonjusticiable political
question over which the Franklin Circuit Court has no jurisdiction. Accordingly,
Appellant argues that the circuit court lacks subject matter jurisdiction to consider
Appellee’s complaint.
We do not find this argument persuasive for at least three reasons.
First, Dwyer is an extra-jurisdictional case which has no precedential value in the
Commonwealth. While one may argue that its reasoning is or is not persuasive in
Kentucky courts, we are not bound by its holding. Second, the facts of Dwyer are
distinguishable from those before us. Whereas in Dwyer the Des Moines Register
requested records of phone calls made by Iowa state senators, in the matter before
us the requested records do not implicate calls made by Representative Nemes.
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Rather, Appellee requested records of calls made and messages left by third parties
to electronic systems. Finally, as the matter is before us on appeal from the denial
of a motion to dismiss, we must again construe the pleadings in a light most
favorable to Appellee on this question and regard all allegations in the complaint as
true. Gall, supra.
CONCLUSION
In denying Appellant’s motion to dismiss, the Franklin Circuit Court
expressly held that its decision was a narrow one addressing only the question of
whether the circuit court had jurisdiction to consider the claims raised by Appellee.
The circuit court did not examine the requested documents and made no
determination as to whether there were legitimate grounds to withhold those
records from public disclosure.
In similar fashion, we have considered the sole question of whether
the Franklin Circuit Court properly denied Appellant’s motion to dismiss. Having
closely examined the record and the law, we conclude that for the limited purpose
of Appellant’s motion to dismiss, legislative immunity does not deprive the
Franklin Circuit Court of jurisdiction to consider Appellee’s complaint. Finally,
we do not believe that the General Assembly’s policy regarding a member’s
telephone and electronic mail records is a nonjusticiable political question outside
the jurisdiction of the circuit court. We make no determination as to whether there
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may be legitimate grounds to withhold the requested records outside the context of
a “motion dismiss.” We affirm the order of the Franklin Circuit Court denying
Appellant’s motion to dismiss.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT BRIEF AND ORAL ARGUMENT
FOR APPELLANT: FOR APPELLEE:
Gregory A. Woosley Benjamin S. Basil
Frankfort, Kentucky Louisville, Kentucky
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