Kuprion v. Fitzgerald

DAVID TACHAU, Special Justice,

dissenting.

While I greatly admire the Chief Justice’s progressive efforts to improve the adjudication of the “Family Court” cases, I must respectfully dissent.

I. INTRODUCTION

As this Court stated in the landmark decision Legislative Research Commission ex rel. Prather v. Brown, Ky., 664 S.W.2d 907, 914 (1984), quoting Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317 (1983): “The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.” The wisdom of these words is particularly evident in circumstances such as these, when the Court is weighing actions taken by the judiciary. Given that there is no other limitation on the judiciary’s power within the checks and balances of our system of government, the Court must be especially careful to restrain its own exercise of power.

Our state Constitution specifically gives the General Assembly the exclusive power to determine the subject matter jurisdiction of the state’s district and circuit courts. Ky. Const. §§ 112(3) and 113(3). The only exception to this exclusive power is contained in § 110(5)(b) of the Constitution, which provides that the Chief Justice “shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes ....”

Our state Constitution also “contains explicit provisions which, on the one hand, mandate separation among the three branches of government, and on the other hand, specifically prohibit incursion of one branch of government into the powers and functions of the others.” LRC v. Brown, supra, 664 S.W.2d at 912, citing Ky. Const. §§ 27 and 28. This Court has recently been extremely vigilant in upholding those provisions. See id.: “[I]t has been our view, in interpreting Sections 27 and 28, that the separation of powers doctrine is fundamental to Kentucky’s tripartite system of government and must be ‘strictly construed.’ ” (Citation omitted.); Kentucky Ass’n of Realtors, Inc. v. Musselman, Ky., 817 S.W.2d 213, 216 (1991); Diemer v. Commonwealth, Ky., 786 S.W.2d 861 (1990).

Here, the Chief Justice in March 1991 assigned judges to a new “Family Court,” and without any legislative authorization, gave the judges elements of the subject matter jurisdiction of both district and state courts. The Chief Justice did not set any limit on the length of time these special judges would serve. Some of them have now served more than three and one-half years with no end in sight.

The Chief Justice also did not explain why he made these appointments, much less whether he deemed these assignments “necessary for the prompt disposition of causes.” On the contrary, when the 1988 General Assembly authorized the “Family Court Feasibility Task Force” in House Concurrent Resolution 30, the legislature indicated it hoped the Family Court might achieve two objectives entirely unrelated to prompt decision making: “continuity of judicial decision-making” in situations involving multiple family issues, and “development of expertise in the management and disposal of family law cases by the Kentucky judiciary.” 1988 Ky.Acts Ch. 128, HCR 30.

The majority’s opinion concludes that the Chief Justice’s appointments are simply to be reviewed under an “abuse of discretion” standard, op., supra, at 684, and under that deferential standard, the appointments are “constitutionally permissible” as part of a “a temporary ‘joint research project’ of the judiciary and General Assembly.” Id., at 685. I cannot agree with either conclusion.

First, while it may be appropriate to adopt the “abuse of discretion” standard toward routine administrative actions the Chief Jus*696tice takes as “executive head of the Court of Justice,” Ky. Const. § 110(5)(b), that deferential standard of review is completely inconsistent with the Court’s separation of powers jurisprudence. Applying the “abuse of discretion” standard in this case squarely contradicts the “fundamental” doctrine that conduct by one constitutional actor involving the possible “incursion of one branch of government into the powers and functions of the others” must be “strictly construed.” LRC v. Brown, supra, 664 S.W.2d at 912.

Second, even applying the “abuse of discretion” standard, there is no support in the record for the Chief Justice’s actions, and the majority’s ruling makes the restrictive language of § 110(5)(b) meaningless. Indeed, the majority’s decision is made even more unnerving by its suggestion that the Family Court is “constitutionally permissible” because it is simply a “joint research project.” So far as I know, there is no precedent for the contention that the Constitution can be suspended for a “research project,” no matter how praiseworthy its aims.

II. THE CREATION OF THE FAMILY COURT

I completely agree with the starting point of the majority’s analysis, see Maj. op., supra, at 683:

Section 110(5)(b) of the Constitution does not confer unbridled, absolute or unlimited power on the Chief Justice in his capacity as Chief Executive of the court system. The Section refers only to temporary appointments of judges to provide for the prompt disposition of causefs], It should be pointed out that the word “temporary” relates only to the appointment of the judge. In no way can a temporary court be created by an order of the Chief Justice. Such an extraordinary action must be rooted in fact and the reason for the temporary appointment should be noted in the order of appointment.

However, I cannot agree with the majority’s apparent understanding of the record.

To begin with, the facts starkly establish that what has happened in Jefferson County is precisely the creation of a “temporary court” rather than “the appointment of the judge.” As the appellant points out, the Family Court in Jefferson County is known by that name, and its divisions are separately numbered as seven Family Court divisions rather than being known as numbered divisions of Jefferson Circuit Court or Jefferson District Court. Many of the judges appointed to the court have also changed, with new judges rotating on and off the court at frequent intervals, while the continued existence of the court remains constant.

In fact, the Family Court in Jefferson County has its own clerk, its own assignment numbers, and even its own seal. The Family Court even operates under special rules of court approved by this Court on July 28, 1993 that are distinct from other civil or criminal rules. In sum, I agree with the majority that “In no way can a temporary court be created by an order of the Chief Justice” — but that has clearly happened here, regardless of the majority’s efforts to call it a mere “division” or “pilot project.”

Likewise, contrary to the apparent views of the concurring opinion, I also agree with the majority that “Such an extraordinary action [“temporary appointments of judges to provide for the prompt disposition of cause[s]”] must be rooted in fact and the reason for the temporary appointment should be noted in the order of appointment.” But this never happened. As noted above, so far as we know, the Chief Justice has never explained in any official act or opinion, including in his March 20, 1991 Order, why he made the Family Court appointments.

Moreover, even if the appointments were made to promote the “prompt disposition of causes,” there is no basis in the record for concluding that this was “rooted in fact,” as the majority says is required. Disregarding the personal opinions of counsel at oral argument, there is simply no evidence that the Chief Justice’s “temporary” appointments “in fact” serve to promote the constitutionally sanctioned objective of “the prompt disposition of causes.”

The majority evidently concludes that the Chief Justice’s appointments were well-founded as efforts to promote “the prompt disposition of causes” because of events that *697supposedly preceded the appointments. In particular, the majority explains that the 1988 General Assembly authorized the appointment of a task force to examine the need for and the feasibility of establishing a Family Court, and subsequently:

The Task Force report in 1989 amplified the preamble to the concurrent resolution which established it by making ten findings, including the idea that fractionalization of family jurisdiction leads to a waste of time and delays, that it increases the time and expense involved in these eases and creates an inordinate delay between intake and final resolution.

Maj. op., supra, at 681.

This explanation is troubling for several reasons.

First, regardless of what the 1989 Task Force concluded, it is important to recognize that when the 1988 General Assembly authorized the Task Force, the legislature never mentioned delays in the adjudication of family disputes among the problems it sought to address, nor prompt decision making among the benefits that might result from a family court. See 1988 Ky.Acts Ch. 128, HCR 30. Instead, the legislature was focused on the “overlap[ping] ... matters of dispute or crisis within particular families,” including “matters concerning dissolution of marriage, spousal maintenance, child support, adoption, terminations of parental rights, establishment of paternity, domestic violence, and juvenile offenses.”

Thus, in its only statement of purpose for creating the Task Force, the General Assembly noted that “the establishment of a court or division of court particularly devoted to and specializing in family law might promote such continuity of judicial decision-making as well as foster development of expertise in the management and disposal of family law cases by the Kentucky judiciary.” Id. (emphasis added). In other words, the legislature has never explicitly or implicitly endorsed the only constitutionally permitted purpose for the Chief Justice’s actions. And certainly the 1988 General Assembly did not authorize the actual creation of any family courts, despite the majority’s misunderstanding to the contrary. See Maj. op., at 686 (emphasis added): “The concurrent resolution which created the pilot project requires funding periodically by the legislature.”

Second, again regardless of what the 1989 Task Force concluded, it is also important to recognize that neither the 1988 legislature, nor any other General Assembly, has ever amended the statutes establishing the jurisdiction of district and circuit courts, KRS 23A.010; 24A.010; 24A.110-130; 406.021; 403.140. This is not an insignificant problem. See, e.g., KRS 24A.020: “When jurisdiction over any matter is granted to District Court by statute, such jurisdiction shall be deemed to be exclusive unless the statute specifically states that the jurisdiction shall be concurrent.”

In 1994, a bill did pass the state Senate which would have allowed judicial districts, upon approval of the Chief Justice, to create family courts with concurrent jurisdictions from district and circuit courts. 1994 RS SB. 84. But this bill died in the state House of Representatives. The majority says this is “of no consequence in our consideration,” Maj. op., supra, at 683, although I am not so sure. At the least, it confirms that the legislature has never exercised its exclusive constitutional power to modify the subject matter jurisdiction of the state’s district and circuit courts, Ky. Const. §§ 112(3) and 113(3).

On the other hand, the majority seems to suggest that because the General Assembly has approved the judicial budget in recent years without objecting to special appropriations to the Family Court, the legislature should be considered to have agreed to the modification in district and circuit court jurisdictions. See Maj. op., supra, at 683. However, it is well-established that the “judicial budget ... [only] provides a means by which the legislative body may assess how much it must appropriate from the treasury,” and the General Assembly has no substantive role in “determining the necessity for and the propriety of expenditures” from the judicial budget. Ex parte Auditor of Public Accounts, Ky., 609 S.W.2d 682, 685 (1980). Moreover, this oblique sort of implied legislative action would seem barred by § 51 of the state *698Constitution, which requires that “No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title....” See Sweasy v. King’s Daughters Memorial Hospital, Ky., 771 S.W.2d 812, 815-16 (1989).

Third, turning now to the “findings” purportedly made in the 1989 Task Force report, it is simply erroneous to state that the report found “that fractionalization of family jurisdiction leads to a waste of time and delays.” Instead, those words are blended from two separate portions of the report. On page 2, the report restated the General Assembly’s “reasons for establishing the Task Force,” and included that overlapping jurisdictions “thereby caus[e] fraetionalization and disruption in judicial decision-making continuity.” Later, on page 4, the report concluded that “use of domestic relations commissioners ... increases the time and expense involved in these cases” (emphasis added). Otherwise, the report found that “there exists in many courts an inordinate delay between intake of a ease and final resolution,” but again the report did not find that creation of family courts would assist this problem.

Indeed, the report pointed to several benefits of creating family courts which — like the General Assembly’s statement of purposes— had nothing to do with “prompt disposition of causes.” These included promoting expertise by judiciary in addressing family disputes (“Family Court judges should be trained in matters of mental health and behavioral sciences as they relate to families”); reducing overlapping jurisdictions by district and circuit courts (“With family matters tried in both district and circuit courts, there is duplication of effort and lack of coordination” and “It would be extremely helpful if the same judge heard all matters relating to the same family, from divorce to child support to juvenile matters”); and addressing other sociological problems (“Citizens perceive decisions of district courts to be of less importance than those of circuit courts. This perception of ‘lesser status’ mitigates against the establishment of a family court at the district court level.”).

My point is not that family courts do not promote the “prompt disposition of causes.” Perhaps they do. Instead, my point is that no one told the Chief Justice that family courts would do this, including the 1989 task force. The task force report gave other reasons for establishing family courts, but none of them provides constitutional authority for what the Chief Justice did.

To summarize, although I agree with the majority’s initial framework for analyzing the constitutionality of the Chief Justice’s appointments, I cannot agree with the majority’s application of this framework to the record of this ease. Instead, I believe the majority’s decision rests on a series of unfounded or inaccurate assumptions about the evidence, and when these assumptions are corrected, the majority has no basis for upholding the Chief Justice’s appointments.

III. SEPARATION OF POWERS ISSUES

Putting aside the flawed assumptions underlying the majority’s decision, I also believe the Chief Justice’s actions cannot be upheld within the structure of this Court’s jurisprudence on separation of powers. This structure is based on Ky. Const. §§ 27 and 28, which provide:

27. The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.
28. No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Because of these provisions, we must evaluate the permissibility of the Family Court appointments not simply in terms of whether a constitutional actor has exercised his powers properly, or has “abused his discretion,” as the majority contends. Instead, because these actions potentially invaded the powers assigned by the Kentucky Constitution exclu*699sively to the General Assembly, we should “strictly construe” the Chief Justice’s authority and uphold his conduct only if it survives this heightened scrutiny.

The majority’s error is perfectly illustrated by comparing this case to Diemer v. Commonwealth, Ky., 786 S.W.2d 861 (1990). There, the Court was faced with a challenge to two provisions of the 1976 Kentucky Billboard Act. One provision prohibited signs that were “legible and/or identifiable” from a federal highway. The Court interpreted this provision to be “sufficiently definite to withstand constitutional scrutiny” after noting that “[i]t is our responsibility to read the statutes of the General Assembly so as to save their constitutionality whenever such can be done consistent with reason and common sense, although we cannot go so far as to add additional words to give constitutionally permissible meaning where none would otherwise exist.” Diemer v. Commonwealth, supra, 786 S.W.2d at 863-64.

This is comparable to the deferential approach the majority now takes to the Chief Justice’s actions, see swpra, at 684 (“We must pause to consider the status of the actions of the Chief Justice. We find them to be acts of discretion that are not an abuse of that discretion.”). This approach may be appropriate for routine budgetary and administrative actions taken by the Chief Justice as “executive head of the Court of Justice,” Ky. Const. § 110(5)(b). However, this approach is erroneous where the Chief Justice’s actions threaten to invade the proper exercise of powers by separate branches of government, as Diemer further illustrates.

After accepting the first provision of the Billboard Act, the Diemer court invalidated the second provision of the Act prohibiting certain signs “outside of an urban area.” The Court characterized this to be “a term of infinite variety depending upon the viewpoint of the person applying it,” id., at 864, and held that the legislature had improperly delegated the task of defining the term by administrative regulation to the Secretary of Transportation. The Court explained:

The requirements of the Kentucky constitutional principle of separation of powers, Kentucky Constitution Sections 27 and 28, are the same. The duty to define general terms cannot be delegated by the legislative branch to the executive branch. Kentucky is a strict adherent to the separation of powers doctrine. As we stated in Sibert v. Garrett, 197 Ky. 17, 246 S.W. 456, 457 (1922):
“Perhaps 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 ... [the Kentucky] Constitution_”

Diemer, 786 S.W.2d at 864-65.

Diemer thus illustrates that although a constitutional actor’s conduct might ordinarily be accorded deference because of concerns for comity between branches of government, that presumption of legitimacy evaporates in disputes involving separation of powers issues. In such cases, a constitutional actor’s conduct instead is subject to heightened scrutiny and a “strict construction of those time-tested provisions” of §§ 27 and 28 of Kentucky’s Constitution. LRC v. Brown, supra, 664 S.W.2d at 914; Kentucky Ass’n of Realtors, Inc. v. Musselman, Ky., 817 S.W.2d 213, 216 (1991).

Of course, I assume that just as the Court has imposed heightened scrutiny on legislative actions that raise separation of powers concerns, so also the Court would impose heightened scrutiny on actions by executive and judicial officers raising separation of powers concerns. Ky. Const. §§ 27 and 28 contain no suggestion that the different branches of government should be treated any differently in separation of powers disputes.

Indeed, the judiciary should be particularly vigilant to restrain its own exercise of power, because of its unique position as the final and unchecked arbiter of constitutional disputes. Otherwise, of course, if the judiciary fails to restrain itself, other constitutional actors will eventually be unwilling to submit to a different standard and allow courts to judge their conduct.

In the present case, the Chief Justice’s Family Court assignments explicitly altered *700the subject matter jurisdiction of certain Jefferson County district and circuit courts, despite the General Assembly’s otherwise exclusive constitutional authority to determine the subject matter jurisdiction of all district and circuit courts in the state. Ky. Const. §§ 112(3) and 113(3). In my view, and seemingly in the majority’s view as well, the Chief Justice was only allowed to make these assignments with the clearly-stated and well-founded intention of promoting the “prompt disposition of causes.” (See Maj. op., supra, at 683: “Such an extraordinary action must be rooted in fact and the reason for the temporary appointment should be noted in the order of appointment.”) But neither of these conditions was met.

In addition, the Chief Justice was also required to make these assignments for a finite term, or to address a finite amount of litigation, in order for them to be considered “temporary.” For all practical purposes, however, the very opposite occurred here, where the Chief Justice’s March 20, 1991 Order stated that his appointments “shall remain in effect until further order of this Court.”

But the most troublesome part of the majority’s entire analysis is that it attempts to resolve the thorny separation of powers problems by declaring that the Chief Justice’s actions are simply part of an acceptable “joint research project” with the legislature. See Maj. op., at 685: “The Court of Appeals properly determined that the Jefferson Family Court project is a temporary ‘joint research project’ of the judiciary and General Assembly and is structured in a constitutionally permissible manner.”

The casual tone of this statement should not be misleading. What the majority is sanctioning is a completely unprecedented and truly alarming suspension of the Constitution in the guise of a temporary “research project.”

The appellant’s criticism of this point seems to me well-founded. “[Wjhere in the constitution is there any power to experiment with the basic foundations of the three branches of government? Can we experiment by eliminating the state senate? How about eliminating the office of Governor? ... If you follow the reasoning of the Court of Appeals, it[’]s allowable as long as it is not permanent.” Brief of Appellant, at 18.

As the appellant demonstrates, there are vast problems with the idea that we can suspend the Constitution’s clear separation of powers for the purposes of a “research project.” In LRC v. Brown, supra, this Court firmly rejected the suggestion that constitutional powers can be reassigned, or delegated from one branch to another, simply because that might improve governmental functions. Yet that is exactly what the majority appears to embrace here. See Maj. op., at 686: “The final form, if any, of the Family Court will need to be detailed in legislation. That does not mean that one branch of government cannot assist another branch of government in analyzing the methods to make a system of government including the administration of judicial matters more effective.”

In conclusion, I would reverse the decision below and issue the writ requested by the appellant. Out of concern for the orderly administration of cases that have been filed since 1991, I would apply this holding prospectively. See Fischer v. State Board of Elections, Ky., 879 S.W.2d 475, 480-81 (1994); Rose v. Council for Better Education, Inc., Ky., 790 S.W.2d 186, 216 (1989); see also Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (declaring Bankruptcy Court unconstitutional but applying holding prospectively and staying judgment until Congress would have “an opportunity to reconstitute the bankruptcy courts or to adopt other valid means of adjudication without impairing the interim administration of the bankruptcy laws”). In Justice Frankfurter’s phrase, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters Bank, 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949) (dissenting opinion).