Workforce Development Cabinet v. Gaines

Dissent by

Special Justice ROYSE.

Respectfully, I dissent. I would reverse the decision of the Court of Appeals because Ms. Gaines failed to satisfy the express statutory prerequisites for initiating an action under KRS 61.102, and thus, the Franklin Circuit Court acted properly in granting summary judgment against her on this statutory cause of action. I believe the interpretation of KRS 61.102 is straightforward under well-established principles of statutory construction.

The basic question before this Court is: Did Ms. Gaines provide the required notice under KRS 61.102, considering that her report of alleged wrongdoing was made through her counsel to counsel for the Cabinet for whom she worked and against whom she was complaining. Neither the Cabinet nor its General Counsel is among the agencies and individuals enumerated in KRS 61.102(1). Thus, the only inquiry for this Court is whether the Cabinet, through its General Counsel, qualifies as “... any other appropriate body or authority ...” as set forth in the statute. We must determine this question by employing Kentucky canons of statutory construction to arrive at an objective interpretation of the statute that accurately reflects the General Assembly’s actual intent. As Justice Cooper explained in Travelers Indem. Co. v. Reker, 100 S.W.3d 756 (Ky.2003):

[T]he applicable rule of construction with respect to matters not expressed in a statute is that a court must refer to the words used in enacting the statute rather than surmising what may have been intended but was not expressed ... Vhere a statute is intelligible on its ee, the courts are not at liberty to supply words or insert some-thi g or make additions which amount, as ,ometimes stated, to providing for a casus omissus, or cure an omission.

Id. at 765 (internal citations and quotations omitted).

Kentucky’s courts, until today, have abided by the long-standing doctrine of ejusdem generis. As explained by this Court, ejusdem generis “is used as a tool of construction when a general word or phrase follows a list of specific persons or things. The general word or phrase will be interpreted to include only persons or things of the same type of those listed.” Com. v. Plowman, 86 S.W.3d 47, 50 (Ky.2002). “Where specific items or classes are followed by more general language, the general words should be restricted by the specific designations so that they encompass only items of the same class or those specifically stated.” Rainey v. Mills, 733 S.W.2d 756, 758 (Ky.App.1987).

Although absent from the Majority Opinion, this canon of construction was apparently still alive and well in Kentucky just two years ago, as demonstrated in the case of Garcia v. Com., 185 S.W.3d 658 (Ky.App.2006). In that case, now-Justice Schroder and now-Chief Justice Minton joined with Judge Taylor in relying on the doctrine of ejusdem generis to determine whether a cracked windshield constituted a nuisance under KRS 189.020. That statute provides:

Every vehicle when on a highway shall be so equipped as to make a minimum of noise, smoke or other nuisance, to protect the rights of other traffic, and to promote the public safety.

In Garcia, a police officer found ten (10) bricks of marijuana as a result of a traffic stop purportedly for a cracked windshield, *796which the officer believed was a violation of KRS 189.020. The three-judge panel of the Court of Appeals concluded that the trial court should have suppressed the ten (10) bricks of marijuana from evidence because the traffic stop violated the Fourth Amendment inasmuch as a cracked windshield is not a violation of KRS 189.020. Judges Schroder, Minton and Taylor relied extensively on the doctrine of ejusdem generis to conclude that the statutory phrase “other nuisance” could only be interpreted to include those nuisances of a kind similar to noise and smoke, and that a cracked windshield did not qualify (unless it was so severely cracked as to constitute a driving hazard, which the court concluded was not the case). Id. at 664-65.

To effectuate legislative intent, we believe “other nuisance” should be interpreted as including only those nuisances of a similar kind as noise and smoke. Accordingly, we do not interpret the term “other nuisance” in KRS 189.020 as encompassing a cracked windshield.

Id. at 664 (emphasis added).1

In the case at hand, we see that KRS 61.102(1) expressly enumerates seven agencies or classes of individuals to whom a report can be made: (1) the Kentucky Legislative Ethics Commission, (2) the Attorney General, (3) the Auditor of Public Accounts, (4) the General Assembly of the Commonwealth of Kentucky or any of its members or employees, (5) the Legislative Research Commission or any of its committees, members or employees, (6) the judiciary or any member or employee of the judiciary, and (7) any law enforcement agency or its employees. Each of these agencies or classes of individuals is viewed as having investigatory and/or adjudicatory authority within the Commonwealth. Applying the principle of ejusdem generis, it cannot be reasonably concluded that an in-house lawyer for the Workforce Development Cabinet, the very agency where Ms. Gaines worked, is of the same class or nature as the individuals and entities enumerated in the statute.

To construe the phrase “any other appropriate body or authority” in the manner adopted by the Majority not only fails to adhere to the concept of ejusdem generis, but it wholly negates the specific enumerations that the General Assembly did choose to include. If the only requirement is that a report be made to “an appropriate body or authority,” as the Majority suggests, then the General Assembly’s enumeration of seven acceptable classes of individuals and agencies is, for all practical purposes, rendered meaningless. “The presumption is that the Legislature intends an Act to be effective as an entirety. No rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect shall, if possible, be accorded to every part of the Act.” George v. Scent, 346 S.W.2d 784, 789 (Ky.1961). “It *797is elementary that a statute should be construed, if possible, so that no part of it is meaningless or ineffectual.” Brooks v. Meyers, 279 S.W.2d 764 (Ky.1955).

The Majority has today decided that a public employee satisfies the prerequisites for KRS 61.102 if she makes a report to her employer, regardless of who that employer may be or whether the employer is enumerated in KRS 61.102. An employer is ipso facto an “appropriate body or authority.” In reality, the Court has added an eighth enumerated category to the list: “the individual’s employer.” Notably, in KRS 61.101(2), the General Assembly specifically undertook to define the word “Employer” for purposes of KRS 61.102 and 61.103. Yet nowhere in KRS 61.102(1) does that term appear as an acceptable body whom to report. Likewise, in KRS 61.102(2), the General Assembly gave protection to those who aid an employee who “makes public” any wrongdoing set forth in KRS 61.102(1). This certainly evinces a legislative intent to require some manner of external report to trigger the statutory whistleblower protections.2

It is important to remember that the cause of action under which Ms. Gaines sought relief is one created out of whole cloth by the General Assembly. It does not find its origin in the common law nor does it have any underpinnings in jural rights. Thus, we must respect the fact that if the General Assembly undertakes to create a legislative cause of action it certainly retains the authority, within constitutional bounds, to prescribe the elements, limitations and/or prerequisites for one who seeks to pursue such an action. See Com., Revenue Cabinet v. Gossum, 887 S.W.2d 329 (Ky.1994) (“It is to be recognized that a right to a refund of illegally or improperly collected taxes does not derive from the common law, but is a matter of legislative grace. It follows that if appel-lees are to be successful in this action, they must bring themselves within the terms of the statute authorizing a refund.”) Moreover, KRS 61.101(2) is not the only statutory protection the General Assembly has provided for public employees. Other protections are afforded, for instance, under the state personnel procedures in KRS Chapter 18A and the Kentucky Civil Rights Act, KRS Chapter 344.

The Majority points out that the subject statute is “remedial,” and therefore, must be “liberally construed.” While this is true, simply because a statute is remedial in nature does not mean that it carries with it transcending powers that trump well-accepted canons of construction or firmly established principles of separation of powers. “While liberal construction is proper to effect a beneficent purpose, a statute should not be construed so as to give it a meaning which the language of the statute does not fairly and reasonably support as it is neither the duty nor the prerogative of the judiciary to breathe into the statute that which the Legislature has not put there.” Com. v. Garnett, 8 S.W.3d 573, 576 (Ky.App.1999) (internal citations and quotations omitted).

Respectfully, the Majority’s interpretation of the statute grafts additional language onto the statute which the General Assembly did not undertake to do. “Our duty is to ascertain and give effect to the intent of the General Assembly. We are *798not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used.” Beckham v. Board of Educ. Of Jefferson County, 873 S.W.2d 575, 577 (Ky.1994); see also City of Covington v. Kenton, County, 149 S.W.3d 358, 362 (Ky.2004). “[I]t is neither the duty nor the prerogative of the judiciary to breathe into the statute that which the Legislature has not put there.” Com. v. Gaitherwright, 70 S.W.3d 411, 413 (Ky.2002).

The fundamental premise for today’s decision is that “statutes are to be liberally construed with a view to promote their objects and carry out the intent of the legislature.” As this Court noted in Bob Hook Chevrolet Isuzu, Inc. v. Com., 933 S.W.2d 488 (Ky.1998). however, “[a] con; - sponding rule of construction is that . statute should be const» ued, if possible, s» that no part of its provi ions are rendered meaningless.” The interpretation of the phrase “or any other appropriate body or authority” reached today b the Majority, engulfs the entire statute and renders the fifty-seven (57) words immediately preceding that phrase mere surplusage.

While the Majority persuasively articulates various reasons why it might be better to allow internal reporting to one’s employer as a sufficient prerequisite, our task is not to make such policy determinations, but instead, to determine what the legislature actually intended, gleaning this intent from the four corners of the unambiguous statutory language the legislature chose to employ. Gathright v. H.M. Byllesby & Co., 154 Ky. 106, 157 S.W. 45, (1913) (“Courts are interpreters and not makers of the law; it is not the province of the courts to usurp the functions of the Legislature.... ”); Chapman v. Chapman, 498 S.W.2d 134, 137 (Ky.1973) (“[I]; is for this court to interpret the law, not > enact legislation.”) Thoughtful polic makers could ct rtainly have a lively deb; e about the wisi- sm of the Kentucky Gen ;ral Assembly in its ch- ice of enumerat 1 agencies and h. lividu-.-s to whom rep ts may be made. Iwway >f example, mai states extend protc don ,o internal disc, sure.-',3 some states r .quii . an internal d- closu: ; prior to an externa; disclosure,4 a, d Congress has seen fit to treat whistloplowing requirements differently under different legislative acts.5 In each of these instanc*799es, the legislative body has applied its legislative judgment to declare the circumstances under which it will allow a private cause of action for whistleblowing. The point is that these debates must be left to thoughtful policymakers, not judges, no matter how thoughtful they may be.

[A] conclusion might appear to be harsh, but courts are not responsible for conditions brought about by statutory enactments. Their duty ceases when the task of construction is performed and when it is found that the statute transgresses no inhibition of the Constitution. Neither are courts authorized to inject into a statute a provision, or part o' another independent one, upon the ts :ory that there is no substantial rea- £ , for its omission iron the statute u ler consideration, sine they are not a ziorized to amend a atute to con-f n to what may be oncluded a. a b ter reason for its ( .-ictment, no> to s ply a reason when the Legisls. ire e, eting it has not dono so.

Taylor v. Fidelity & Casualty Co. New York, 246 Ky. 598, 55 S.W.2d 410, 413 (1982).

The Majority justifies its interpretation in this case so as not to allow the infamous “absurd result.” Without more, however, this same justification could be used to reach a more desirable legislative result in any case of statutory interpretation — without regard for canons of construction or separation of powers. A logically absurd, clearly unintended result, however, is something quite different than a result which is simply contrary to what we might believe is good policy or better procedure. The Judiciary is not charged with interpreting statutes so as to improve upon inartfully worded or even ill-conceived statutes.

Under the Kentucky Constitution, the General Assembly is left to its own devices to pass bad laws, or badly drafted ones; so long as it does not pass unconstitutional ones. Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 580 (1948) (“Another rule that is uniformly invoked in statutory construction is that the propriety, wisdom and expediency of legislation is exclusively a legislative question.”); Mondie v. Com., 158 S.W.3d 203, 209 (Ky.2005) (“It is the province of this Court under the constitution to decide whal the law is .nd not to declare what it s< uld be.” if the statute “is unwise o' impolitic, the remedy rests with the L(- Nature; not wifi the courts.”). Abser. some fatal flaw p h as unconstitutional ambiguity or va< <,eness — neither of which are even alleged here — it is th Judiciary’s solemn duty to hold that line and to do so with unwavering discipline and restraint. Ky. Const. § 27; Vaughn v. Knopf, 895 S.W.2d 566, 568 (Ky.1995) (“[I]t has been our view, in interpreting Section[s] 27 and 28, that the separation of powers is fundamental ... and must be ‘strictly construed.’ ”)

While a minor entreat into legislative draftsmanship may seem wholly justified *800and appropriate in a given case, we must keep in mind that the separation of powers is just as important for the Judiciary’s autonomy as it is for the other two branches of government, lest we be the ones to blur the very line that protects our own authority. As Justice Keller wrote for a unanimous Supreme Court in Elk Horn Coal Corp. v. Cheyenne Resources, Inc., 163 S.W.3d 408, 422 (Ky.2005):

Because of the judiciary’s unique position as the final unchecked arbiter of constitutional disputes, we should be particularly vigilant to restrain our own exercise of power. It is important that the powers of the Legislature should not stand or fall according as they appealed to the approval of the judiciary; else one branch of government, and that the most representative of the people, would be destroyed, or at least completely subverted to the judges. (Internal quotations and citations omitted.)

An equally eloquent pronouncement of this important principle was articulated by Justice Scott in his vigorous dissent in Stephenson v. Woodward, 182 S.W.3d 162 (Ky.2005) (Scott, J. Dissenting):

[E]ach of our three branches of government were intentionally hampered in some areas, so that they would all remain equal; so no one branch, could ever become greater than the others, could ever garner enough power, to overcome the greatest part of government — the people. This government, or structure, they built, consists of 264 parts, or sections (the Constitution), and when you change one of these sections, you change the whole structure. Maybe just a little today, but that change will grow in time and then someday, you will find, to your dismay, that the whole structure has changed.

Id. at 211.

Because I believe the Franklin Circuit Court properly granted summary judgment by applying the plain language of KRS 61.102, I would reverse the Court of Appeals. For this reason, I would not reach the Cabinet’s alternate argument that it was entitled to summary judgment because Ms. Gaines could not demonstrate a factual issue on retaliation inasmuch as the decision to transfer her allegedly preceded her whistleblowing. More importantly, it does not appear the Circuit Court was even presented with, much less decided, a motion for summary judgment on that issue. The Court of Appeals certainly did not address such a ruling. Thus, I agree with Ms. Gaines that this question is not properly before this Court.

For the foregoing reasons, I respectfully dissent.

MINTON, C.J. and Special Justice STEWART E. CONNOR join this dissent.

. The last two centuries of Kentucky jurisprudence unequivocally demonstrate that the doctrine of ejusdem generis is, and has always been, a fundamental canon of statutory construction in this Commonwealth, See e.g., Fiscal Court of Jefferson County v. Brady, 885 S.W.2d 681, 685 (Ky.1994) (in which Justice Leibson explains and applies ejusdem generis as a “primary rule of statutory construction”, and refers the reader to Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387 (1939) and Jefferson County Fiscal Court v. Jefferson County, 278 Ky. 68, 128 S.W.2d 230 (1939)); Robinson v. Ehrler, 691 S.W.2d 200, 204 (Ky.1985) ("The rule of ejusdem generis applies. Such words are general words, not to be construed in their widest extent, but to be held as applying only to things of the same general kind or class as those specifically mentioned.”); Barren River State Boat Dock, Inc. v. K & R Mfg. Co., 167 S.W.3d 676 (Ky.App.2005); Smith v. Cochran, 7 Bush 147, 70 Ky. 147 (Ky.1870).

. The Majority attempts to support its conclusion with the provision in KRS 61.102(1) that "no employer shall require any employee to give notice prior to making such a report, disclosure, or divulgence." This provision actually contradicts the Majority's interpretation. The obvious intent of this provision is to make clear that an employee need not give internal notice prior to making a report to one of the statutorily enumerated individuals or entities.

. Alaska, AS § 39.90.100- 150; Colorado, C.R.S.A. §§ 24-50.5-101-107; Illinois, I.L.C.S. 174/1-174/35; Louisiana, LSA-R.S. 23:967; Minnesota, M.S.A. § 181.932; Missouri, V.A.M.S. § 105.055; Montana, MCA § 39-2-901-915; Nevada, N.R.S. §§ 281.611-.671; North Carolina, N.C.G.S.A. §§ 126-84-88; Pennsylvania, 43 P.S. §§ 1421-1428; South Carolina, SC ST §§ 8-27-10-50; West Virginia, W. Va.Code §§ 6c-1-1-8; and Wisconsin, W.S.A. §§ 230.80-.90.

. Indiana, IC § 4-15-10-4, IC § 22-5-3-3; Maine, 26 M.R.S.A. §§ 831-840; New Hampshire, N.H.Rev.Stat. §§ 275-E:l-E:2; Ohio, R.C. §§ 4113.51-4113.53.

. The Whistleblower Protection Act protects “any disclosure" without regard to whom that disclosure is made. 5 U.S.C. § 2302(b)(8). Sarbanes-Oxley protects certain private sector employees only when they provide specific categories of information to "a Federal regulatory or law enforcement agency; any Member of Congress or any committee of Congress; or a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct).” 18 U.S.C. § 1514A (a)(1). Other federal statutes do not address the person to whom disclosures should be made, but rather protect disclosures only in the context of specific proceedings. See, e.g., 29 U.S.C. § 1140 (protecting employees who have "given information” or "testified” in an ERISA "inquiry or proceeding”); 33 U.S.C. § 1367 (protecting employees who "filed, instituted, or caused to be filed or instituted any proceeding" under the Clean Water Act).

The case of Davidson v. Com., Dept, of Military Affairs, 152 S.W.3d 247 (Ky.App.2004) is inapposite. The Davidson Court quoted an *799earlier opinion in acknowledging that the Kentucky statute is similar in almost every respect to the federal whisteblower statute, and thus, it was acceptable to look to federal precedent for guidance. Id. at 255. Importantly, the context in which the Court reviewed these authorities was with regard to whether a report of publicly known information is a protected disclosure. On that issue, both the Kentucky statute and the federal statute were silent, and thus, it was appropriate to consider federal precedent. Notably, the Davidson Court specifically analyzed whether the report was made to a proper party under the express language of the Kentucky statute. Id. at 253-54. Obviously, the Davidson Court did not believe the Kentucky statute was similar in this respect, because no such analysis is required under the federal statute which protects "any disclosure," without limitation as to whom the disclosure is made.