University of the Cumberlands v. Pennybacker

SCOTT, Justice,

concurring in part and dissenting in part.

Although I concur with the majority opinion and join Justice Cunningham’s concurring opinion as to why, historically, an appropriation to one particular college affiliated with one particular denomination — among the many in America — violates Section 189 of the Kentucky Constitution, I must respectfully dissent from the majority’s opinion that the Pharmacy Scholarship Program is special legislation and therefore in contravention of Section 59 of the Kentucky Constitution. In so doing, I must note my agreement with Justice Venters that eastern and southeastern Kentucky are geographically under-served by our state university system. To quote a comment by Justice Venters:

Nearly 40% of Kentucky’s land area, and about 25% of the state population, lies to the south and east of the line extending across the map of Kentucky from the Ohio River through Morehead State University to Eastern Kentucky University at Richmond, and from there through Western Kentucky University in Bowling Green to the Tennessee border, yet it is home to not one of this state’s eight public universities.

House Bill 380 included a three-part legislative plan for addressing the pharmacist shortage in Kentucky.16 The first part appropriated almost $80,000,000 to the University of Kentucky for the construc*690tion of a biological/pharmaceutical complex. It was envisioned that this new funding would assist the University of Kentucky College of Pharmacy in doubling its enrollment. The second part was the $10,000,000 appropriation for a new pharmacy school building at the University of the Cumberlands. The third part was the establishment of a Pharmacy Scholarship Program to encourage students to study pharmaceutical science.

The Pharmacy Scholarship Program is codified at KRS 164.7901(2)-(13). This scholarship program provides scholarship monies to individual students who direct the payment of their scholarship awards to the Kentucky pharmacy school they are attending. The awards are made by the Kentucky Higher Education Assistance Authority to the extent funds are otherwise available and allocated from coal severance tax revenues. KRS 164.7901(ll)(b). Under KRS 164.7901(3) and (ll)(a), scholarships are available to individuals who are United States citizens and Kentucky residents, who are enrolled or accepted in a full-time pharmacy program in the Commonwealth, who will serve one year as a pharmacist in Kentucky for each year that scholarship money is received, and who sign a promissory note with interest to repay the scholarship award if they fail to render the agreed service in Kentucky. The amount of the scholarship is calculated as the difference between the “in-state” tuition amount at the University of Kentucky College of Pharmacy and the prevailing tuition at the pharmacy school at which the student is enrolled.17 KRS 164.7901(4).

Thus, one of the primary purposes of H.B. 380 was to increase the training and education of pharmacists at accredited pharmacy schools in Kentucky in order to reduce the perceived shortages, particularly in rural areas. Of course, in 2006, Kentucky only had one School of Pharmacy— the one at the University of Kentucky. Thus, H.B. 380 budgeted almost $80,000,000 to expand the pharmaceutical facilities at UK with the expectation of increasing admissions and graduates.

In addition, H.B. 380 sought to fund the construction of a new pharmacy school at the University of the Cumberlands. This, too, would have successfully increased the number of pharmacy admissions and graduates had it not violated Section 189 of the Kentucky Constitution.

Finally, H.B. 380 set up a scholarship program to be administered by the Kentucky Higher Education Assistance Authority and designed to ensure that those Kentucky residents not desirous of, or able to attend, the University of Kentucky College of Pharmacy could do so at any other “institution in the Commonwealth” at the same amount charged for “in-state” tuition at the University of Kentucky College of Pharmacy, subject, however, to future adequate funding for the scholarships and a pharmacy student’s agreement to trade a year of practice in the Commonwealth for each scholarship year.

Thus, not only did the General Assembly provide the statutory framework in H.B. 380 to increase admissions and the number of pharmacy graduates, but it also designed the statutory scheme to assist those who would be more likely to practice in Kentucky, and thus, alleviate the perceived shortage.

*691The majority, however, invalidate these scholarship provisions based upon the statutory preamble which precedes the scholarship provisions and reads:

It is the intent of the General Assembly to establish a scholarship program to provide eligible Kentucky students the opportunity to attend an accredited school of pharmacy at a private four (4) year institution of higher education with a main campus located in an Appalachian Regional Commission county in the Commonwealth and become certified pharmacists in the Commonwealth.18

KRS 164.7901(1). Yet, the language contained in this statement of intent, or preamble, is not found within any of the actual scholarship provisions, which require only “an institution in the Commonwealth.” KRS 164.7901(2); see also KRS 164.7901(ll)(a) (“[Sjcholarships to eligible students studying pharmacy in schools in the Commonwealth”).

Plainly, as we noted in Jasper v. Commonwealth, 375 S.W.2d 709, 710 (Ky.1964), a “preamble is not the law. It is not necessary for its enactment, nor are its provisions binding. We cannot test the constitutionality of [an] Act by its preamble.” (Citations omitted); see also City of Elizabethtown, v. Cralle, 317 S.W.2d 184, 187 (Ky.1958) (“A preamble to a statute or ordinance, the same as a preamble to a contract, is merely an introductory clause, expressing the reasons for and objects sought to be accomplished by the body of the enactment or agreement, and is not an essential part thereof.”); but see Jones v. City of Paducah, 283 Ky. 628, 142 S.W.2d 365, 367 (1940) (“The recital may be resorted to as an aid in construction or interpretation, but it is not an essential part of the operative portions of the contract.”). Here, however, no construction of the Scholarship Program is allowed as the scholarship’s plain language necessitates no construction. In fact, the majority should go no further than to recognize the preamble’s separability from the actual scholarship provisions. KRS 446.090.19

Yet, in reliance on Milner v. Gibson, 249 Ky. 594, 61 S.W.2d 273, 277 (1933) and Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky.2005), the majority treats these mere “hopes” of the legislature as an operative part of the Scholarship Program, thus changing its wording. However, Milner dealt with a direct conflict between two legislative enactments of 1912 and 1932, which thus required construction. 61 S.W.2d at 276. In fact, the full quote in Milner reads:

Statutes in pari materia or those which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose, must be *692construed together and the legislative intention apparent from the whole enactment must be carried into effect.

Id. at 277 (emphasis added). Here, the actual scholarship provisions are very forward and clear, requiring only that the resident-student attend an “institution in the Commonwealth.” KRS 164.7901(2). Thus, no construction is required and any legislative “hope,” or intent, is irrelevant. “Where a statute is intelligible on its face, the courts are not at liberty to supply words or insert something or make additions however just or desirable it might be to supply an omitted provision.” AIK Selective Self-Insurance Fund v. Minton, 192 S.W.3d 415, 418 (Ky.2006) (quoting Berry v. Commonwealth, 782 S.W.2d 625, 626 (Ky.1990)).

Lewis also required statutory construction to resolve an apparent conflict between the words “electric” and “energy.” 189 S.W.3d at 91. Thus, the full quote reads:

The single use of the word “electric” does not vitiate its application to the remainder of the statute. The statute must be read as a whole and in context with other parts of the law. All parts of the statute must be given equal effect so that no part of the statute will become meaningless or ineffectual.

Id. at 92. Here again, there is no internal conflict within the actual scholarship provisions that would allow, or require, this Court to interpret “an institution in the Commonwealth,” KRS 164.7901(2), in any other manner than it reads, notwithstanding the “hopes” of the General Assembly as expressed in the preamble. KRS 164.7901. To do otherwise — where there is no internal need for construction — uses the preamble to change the clear acknowl-edgement in KRS 164.7901(2) and (ll)(a) that the scholarship is available for attendance at an “institution in the Commonwealth.”

Thus, the majority ultimately concludes “that the Pharmacy Scholarship Program was intended only for students attending the anticipated UC Pharmacy School. As such, it is special legislation that violates the Kentucky Constitution.” Op. at 684. By this inappropriate application of the statutory rules of construction, the majority erroneously limits the class defined to “those pharmacy students enrolled or accepted for enrollment at the planned UC Pharmacy School.” Id. at 685. This facilitates their ultimate conclusion that the scholarship program constitutes “special legislation,” since it can benefit only those students who would have gone to the UC College of Pharmacy — even though there is no UC College of Pharmacy.

Again, as noted, aside from the preamble, the actual scholarship provisions apply “to persons who declare an intent to enroll in a Pharm.D. program at an institution in the Commonwealth.” KRS 164.7901(2) (emphasis added). Thus, the actual scholarship provisions do not limit the scholarships to students attending the “anticipated UC Pharmacy School.”

Such logic also ignores the fact that the UC Pharmacy School was nothing more than a hope at the time of the enactment of KRS 164.7901 in 2006, while Sullivan University in Louisville, Kentucky, was real and in the process of starting an on-campus, private College of Pharmacy. It started its first class in 2008 and is now in the process of accreditation. Its first class will graduate in 2011.

Moreover, Midway College is currently progressing toward the opening of a private, on-campus, School of Pharmacy in Paintsville, Kentucky and is in the process of pre-candidate accreditation. Lexington Herald Leader, Monday, January 25, 2010, Paintsville’s Pharmacy School Follows a *693Familiar Path, by Dori Hjalmarson. Both Sullivan University and Midway College are secular institutions.

Legislatures hope for many things, but they plan for many more. That is their job — not ours. Things evolve and circumstances change, often beyond anyone’s imagination. Thus, we should be circumspect in limiting an act of Kentucky’s General Assembly to only one pre-determined outcome — here, the University of the Cumberlands — especially when it actually referred in the statutory framework not to UC, but to “an institution in the Commonwealth.” KRS 164.7901(2), (ll)(a). This broader reference to an institution is a sign of their wisdom and, hopefully, it will trigger ours.

Admittedly, students at the University of Kentucky College of Pharmacy cannot receive the benefit of the scholarships. But why would they? The Scholarships, if ever fully funded, can only reduce another pharmacy school’s tuition to what UK pharmacy students already pay. KRS 164.7901(4). Moreover, the statutory scheme reflects the fact that the UK School of Pharmacy is already substantially publicly funded, was the recipient of an additional $80,000,000 under H.B. 380, and the number of slots available at UK (which the legislature hoped to increase) were limited in number.

Clearly then, the General Assembly recognized that it needed to create additional slots at other schools to attack the shortage. In fact, when properly funded, KRS 164.7901(4) works no disadvantage to students of the University of Kentucky College of Pharmacy, as it does not put those attending UK at any financial disadvantage, but merely funds other slots at other schools at the same price as UK so that more Kentucky students may become pharmacists, Kentucky may reduce its pharmacist shortage sooner, and, hopefully, Kentuckians will enjoy better health.

“In order for legislation to be permissible under § 59 of the Kentucky Constitution: ‘(1) It must apply equally to all in a class, and (2) there must be distinctive and natural reasons inducing and supporting the classification.’” Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 466 (Ky.1998) (citations omitted). “In performing an analysis under § 59, determining whether the first prong of the test is satisfied should be a fairly straightforward matter. Either the laws do apply to everyone in the class equally or they do not.” Id. at 468.

The majority’s construction, paradoxically, commands the inclusion of UK’s pharmacy students in the class they envision as proper, even though the number of slots available at UK (currently the only accredited pharmacy school in Kentucky) has contributed to the shortage, and even though the scholarship funding mechanism is designed to keep the cost of new pharmacy school slots pegged at the “in-state tuition” rate of UK’s College of Pharmacy. Consequently, with the majority’s result, the Kentucky General Assembly is prohibited from solving the shortage within a quicker time frame as would be possible with other available pharmacy school slots; this, even though UK received the bulk of H.B. 380’s funds — -almost $80,000,000!

However, as hopefully can now be seen, the General Assembly appropriately drew the class to be all Kentuckians attending pharmacy school in Kentucky, who either did not want to, or could not, attend the University of Kentucky College of Pharmacy. As shown, the drawing of the class in this manner works no disadvantage to those who are qualified (and lucky enough!) to fill the limited number of slots available at UK’s College of Pharmacy. This is the class designed by the General *694Assembly in KRS 164.7901(2), (3), and (4), and, plainly, every member of this class would have the same opportunity if and when there is adequate funding available. Thus, KRS 164.7901 satisfies the first prong.

“However, deciding whether the classification itself is valid can be substantially more complex.” Yeoman, 983 S.W.2d at 468. Thus, “the burden is on the party claiming the validity of the classification to show that there is a valid nexus between the classification and the purpose for which the statute in question was drafted.” Id. “There must be substantially more than merely a theoretical basis for a distinction. Rather, there must be a firm basis in reality.” Id.

Here, “[t]he primary, or even secondary purpose of [KRS 164.7901] is clearly the improvement of the health care system in the Commonwealth.” Id. Moreover, it is clear that with one pharmacy school in the Commonwealth, we have not been able to meet the need for pharmacists in Kentucky, especially in rural Kentucky. “Thus, far from being random and arbitrary, the classification created by [KRS 164.7901] is specifically tailored” to provide more pharmacists for Kentucky, id. at 469, and provide them more quickly than just one school could. Thus, “[t]he requirement that there be a valid nexus between the classification and the intent is thereby satisfied.” Id. Plainly then, KRS 164.7901 satisfies the requirement of Section 59 of the Kentucky Constitution.

Thus, I must respectfully dissent from the majority’s conclusion that KRS 164.7901 violates it.

VENTERS, J., joins.

. "The fact remains: Kentucky has a shortage of pharmacists, particularly in Southeastern Kentucky.” Quote from former-Governor Ernie Fletcher, April 24, 2006. "We face a tremendous shortage of licensed pharmacists across the Commonwealth, and therefore KPhA [Kentucky Pharmacists’ Association] encourages expansion of pharmacy training slots in Kentucky as long as the need exists.” Extract from Kentucky Pharmacists' Association public statement in regards to pharmacy provisions in H.B. 380.

. By virtue of H.B. 406, the general appropriations bill for fiscal years 2008-2009 and 2009-2010, the General Assembly directed that "no funds should be transferred to the Pharmacy Scholarship Program Fund." Executive Budget, 2008 Acts, Ch. 127 (H.B. 406), reprinted in KRS Chapter 47.

. The Appalachian Regional Commission counties in Kentucky are: Adair, Bath, Bell, Boyd, Breathitt, Carter, Casey, Clark, Clay, Clinton, Cumberland, Edmondson, Elliot, Es-till, Fleming, Floyd, Garrard, Green, Green-up, Harlan, Hart, Jackson, Johnson, Knott, Knox, Laurel, Lawrence, Lee, Leslie, Letcher, Lewis, Lincoln, McCreary, Madison, Magof-fin, Martin, Menifee, Metcalfe, Monroe, Montgomery, Morgan, Nicholas, Owsley, Perry, Pike, Powell, Pulaski, Robertson, Rockcastle, Rowan, Russell, Wayne, Whitley, and Wolfe.

. KRS 446.090 reads:

It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.