dissenting.
I must respectfully dissent from the majority opinion because it is internally contradictory and externally confusing, and accordingly I am unable to join the reasoning of the majority.
In one paragraph the majority opinion announces that “We hesitate to address the merits of this controversy at this time.” Later the opinion intones that the majority “Intends to dismiss the action as moot without prejudice and await the rules which will be enacted at the next session of the General Assembly.” Finally the major*495ity opinion states that As the law of the case that if the Senate reenacts this rule or similar rule, the circumstances of this case will be relevant as an evidentiary basis for challenging the constitutionality of this rule.” Earlier the opinion declared that the Senate rule had expired along with the legislative session on April 15.
In addition to being confusing, the opinion is rather foreboding and could be taken as a threat against the Senate of Kentucky that if it enacts a similar rule and if a lawsuit is filed, grave consequences will follow in regard to the merits in “this controversy.” Which controversy? What is the Senate to do? It is disappointing to see the majority opinion adopt avoidance and actually embrace evasion in an effort to duck the entire issue.
It is difficult, if not impossible, to reconcile the reasoning of the majority opinion with Rose v. Council on Better Education, Ky., 790 S.W.2d 186 (1989). That case determined that the General Assembly is not immune from suit in a declaratory judgment action to decide whether their method of operation violates a constitutional requirement.
Rose, supra, held that a declaratory judgment over constitutionality is not limited to deciding the constitutionality of statutes but extends to the failure to enact statutes or rules complying with the Constitution. Consequently, the mere fact that Senate Rule 48 died at the end of the 1992 term does not moot the controversy over a legislative system with a hundred year history which has been reenacted verbatim ever since 1979. Obviously such a rule falls squarely within the parameters of an issue of public importance, capable of repetition yet evading review. Lexington Herald Leader Co., Inc. v. Meigs, Ky., 660 S.W.2d 658 (1983).
The controversy over the specific legislation that the two senators wish to call before the full Senate may now be moot, but the merits of the underlying controversy which relate to the method of bringing matters before the full Senate is not moot. Against a background of a hundred years of history, there can only be some doubt that a similar rule will be enacted in the next session, and there is a strong probability that the situation will repeat with another or different bill at the next legislative session. There is reasonable certainty that there will once again be no way to address the grievance of the minority in a timely fashion that will permit a bill buried or bottlenecked in committee to come to the floor during the session. Certainly the minority members have a constitutional right but are without remedy unless we review the merits of the case.
The method chosen by the majority opinion to redress this situation has ominous overtones. In effect it holds a sword over the Senate which tells the legislative body that if you enact the same procedure again, then this Court will consider any new lawsuit on the merits. I find this posture totally inappropriate.
I firmly believe that we cannot tell either house of the General Assembly what system or rules it can enact. However, it is our responsibility to decide in a proper case whether rules or procedures comply with the Constitution of Kentucky. It is the function of the judicial branch to resolve conflicts and to apply and interpret the laws. This dispute is between members of the legislature, specifically the Senate, and not a controversy between the legislative branch and the judicial branch. The legislative branch enacts statutes, but if any person is aggrieved and believes there is a conflict between the Constitution and the statutory law, the courts have an absolute responsibility to consider the matter and to ascertain whether the statutes or rules in question are constitutional or otherwise.
This case is not moot and it presents a situation that is capable of repetition yet evading review.