Democratic Party of Kentucky v. Graham

COOPER, Justice.

We are called upon in this action to determine not whether the petitioners will be or should be indicted by a special grand jury empaneled by the Franklin Circuit Court, but only the narrow legal issue of whether a grand jury can return an indictment for a violation of a campaign finance law, KRS Chapter 121, absent a preliminary finding of probable cause by the Registry of Election Finance (Registry). Respondent William L. Graham, regular judge of the Franklin Circuit Court, has determined that the special grand jury can do just that. In these consolidated actions, the petitioners seek the issuance of a writ of mandamus ordering Judge Graham to prohibit the special grand jury from returning any such indictments until and unless the Registry determines that there is probable cause to believe that a violation of a campaign finance law has occurred.

I. FACTS.

In 1995, the Democratic slate won the Kentucky gubernatorial election by a margin of 21,560 out of 980,014 total votes cast. Shortly thereafter, the Republican Party of Kentucky filed a sworn complaint with the Registry alleging that the Democratic Party violated the campaign finance laws during that election campaign. KRS 121.140(1). The Democratic Party countered with a complaint alleging similar violations on the part of the Republican Party. The Kentucky State Police (KSP) was already conducting its own investigation into allegations of election law violations. In April 1996, the Attorney General, at the request of the Governor, KRS 15.200, assumed control of the KSP’s investigation. On April 10, 1996, the Attorney General and the chairman of the Registry entered into a “Joint Investigation Agreement” establishing a joint task force to coordinate their investigations. Paragraph 1 of that agreement provides as follows:

The Task Force will be operated jointly by the Office of the Attorney General and the Kentucky Registry of Election Finance. All matters in which there is deemed to be only a civil violation of the campaign finance laws will be referred to the Kentucky Registry of Election Finance. All matters in which the Kentucky Registry of Election Finance determines that there is probable cause to believe that a campaign finance statute has been knowingly committed (sic) will be referred to the Office of the Attorney General or the appropriate prosecutor.

In a letter to the Attorney General dated November 7, 1996, the chairman of the Registry expressed his opinion that the Attorney General could not seek an indictment on a campaign finance matter without first referring the matter to the Registry for a probable cause determination. On April 14, 1997, pursuant to a motion and affidavit filed by the Attorney General’s office, Judge Graham entered an order empaneling a special grand jury to hear evidence concerning allegations of criminal conduct with respect to the 1995 gubernatorial election. KRS 29A.220. The motion specifically identified certain persons *425and organizations as targets of that investigation, including the Democratic Party of Kentucky and the Teamsters Union, ie., General Drivers, Warehousemen and Helpers Local Union No. 89, who are petitioners in this action. Local 89 immediately filed suit in the Franklin Circuit Court seeking to enjoin the Attorney General from presenting evidence to the special grand jury on the same grounds which they assert in this petition. That action was dismissed on a finding that there was no justiciable controversy in the absence of some evidence that the grand jury intended to return an indictment prior to a probable cause determination by the Registry. The dismissal was affirmed by the Court of Appeals. General Drivers, Warehouseman & Helpers Local Union No. 89 v. Chandler, Ky.App., 968 S.W.2d 680 (1998).

On May 18, 1998, at the request of the special grand jury and pursuant to RCr 5.24(1), Judge Graham entered an order granting disclosure to the Registry of all evidence presented to the grand jury and ordering the grand jury to remain in session pending receipt of an opinion from the Registry. On July 27, 1998, both the Attorney General and the Registry requested permission to publicly disclose all of the evidence heard by the grand jury. The Registry is of the opinion that its hearings must be open to the public; and, therefore, its proposed probable cause hearing with respect to the 1995 gubernatorial election would require public disclosure of the grand jury evidence. Judge Graham denied the disclosure requests, rescinded his May 18,1998 order, and instructed the grand jury to proceed with its deliberations and the performance of its duties, ie., return either an indictment or a finding of “no true bill .” That order was reduced to writing and entered on July 29, 1998. Local 89 filed its petition in the Court of Appeals on August 8,1998, and the Democratic Party filed its petition on August 13. On August 19, the Court of Appeals entered an order recommending transfer, and we granted transfer that same day. CR 74.02(5).

II. JUSTICIABLE CONTROVERSY.

The preliminary issue is the same one resolved adversely to Local 89 by the Court of Appeals in General Drivers, Warehouseman & Helpers Local Union No. 89 v. Chandler, supra, viz: Do the petitioners presently have standing to raise the issues addressed in them petitions, or, put another way, is there a present justiciable controversy?

The gist of the petitioners’ claim in this regard is that the Attorney General and the grand jury are acting without jurisdiction. Thus viewed, the argument is analogous to that raised in Goodwin v.. City of Louisville, 309 Ky. 11, 215 S.W.2d 557 (1948), in which the plaintiff brought an action to enjoin a threatened prosecution for violation of zoning laws. Therein, we stated:

The concept of the term jurisdiction embraces action, or contemplated action, by the body without power and in the given case, it is necessary for the judiciary to restrain the agency in order to prevent irreparable injury.

Id., 215 S.W.2d at 559.

That, of course, raises the question of whether the return of an indictment would constitute irreparable injury per se. Petitioners assert that irreparable injury need not be proven if the challenged statute infringes on First Amendment free speech rights. See Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996). However, petitioners are not challenging the provisions of KRS Chapter 121 in this action, but are relying on those provisions to support their claim for relief. Nor are we persuaded that the notoriety and embarrassment which might accompany the return of an indictment constitutes irreparable injury. Cf. Jones v. Hogg, Ky., 639 S.W.2d 543 (1982). Petitioner Fields posits that the mere return of an indictment against him would result in his automatic removal from office as president of Local 89. For this proposition, he cites the Consent Decree entered in the United States District Court for the Southern District of New York in the case of United States of America v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 88 CIV. 4486(DNE). A perusal of that Decree reveals no language which could be interpreted as providing for *426an automatic removal from office upon the mere return of an indictment.

Nevertheless, because of the importance of the issue raised in this action and the certainty of its recurrence, especially if indictments are returned against any of these petitioners, we choose not to decide this case on the basis of whether the return of an indictment would result in irreparable harm, but to proceed instead to the merits.

III. THE GRAND JURY.

The grand jury system originated in England with the issuance of the Assize of Clarendon by King Henry II in 1166. When the Magna Charta was signed in 1215, it did not specifically mention the grand jury; but, as interpreted by English legal philosopher Edward Coke, it did establish the right to the preservation of life, liberty and property subject to the “law of the land,” which we now more commonly refer to as due process of law. 2 E. Coke, Institutes of the Laws of England 45 (William S. Hein Co.1986 reprint). Blackstone interpreted Coke’s due process requirement as mandating that a person not be deprived of (at least) life without first an indictment by a grand jury, then a separate guilt determination by a petit jury. 4 W. Blackstone, Commentaries on the Laws of England 343 (University of Chicago Press-1979 facsimile). The first grand jury was empaneled in colonial America in 1635. Its early independence from governmental influence was exemplified by the case of John Peter Zenger, a newspaper publisher, who criticized the king’s withdrawal of jury trials in New York. Three successive grand juries refused to indict Zenger for seditious libel and criticized the monarchy for attempting to indict other criminal suspects by information. Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 Fla.St.U.L.Rev. 1, 11 (1996). Although neither the United States Constitution nor the Judiciary Act of 1789 established grand juries, the Fifth Amendment to the Constitution provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury....” This requirement has defined the role of the grand jury primarily as the protector of the accused, rather than as the accuser.

Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive prosecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.

Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962). The hallmark of the grand jury is its independence from outside influence.

There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And in this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor.

Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); Rice v. Commonwealth, Ky., 288 S.W.2d 635, 638 (1956).

Section 248’ of the Constitution of Kentucky provides that a grand jury shall consist *427of twelve persons, nine of whom concurring may find an indictment. Section 12 provides that “[n]o person, for an indictable offense, shall be proceeded against criminally by in-formation_” An indictable offense is a felony, Lakes v. Goodloe, 195 Ky. 240, 242 S.W. 632, 639 (1922), and an indictment is an accusation made in behalf of the people by nine or more grand jurors in proper session. Nicholas v. Thomas, Ky., 382 S.W.2d 871 (1964). Thus, the grand jury is an institution of constitutional origin in Kentucky.

It is generally accepted that an indictment represents a finding that there is probable cause to believe that a crime has been committed, see, e.g., Branzburg v. Hayes, 408 U.S. 665, 686, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972), Kuhnle v. Kassulke, Ky., 489 S.W.2d 833, 835 (1973), Braden v. Commonwealth, Ky.App., 600 S.W.2d 466, 468 (1978), although “[n]o law has been enacted and no constitutional amendment has been adopted that requires an indictment to be founded on probable cause.” King v. Venters, Ky., 595 S.W.2d 714, 714 (1980). Unlike some jurisdictions, a grand jury in Kentucky cannot file a report which reflects on the character of a citizen or public officer unless that report is accompanied by an indictment against that citizen or officer., Bowling v. Sinnette, Ky., 666 S.W.2d 743, 745 (1984). This is consistent with the requirement that grand jury proceedings remain secret, RCr 5.24; for one of the reasons for secrecy is to protect witnesses and the good names of innocent persons who are investigated, but not indicted. Greenwell v. Commonwealth, Ky., 317 S.W.2d 859, 861 (1958).1

IV. THE REGISTRY.

The Registry of Election Finance was created by the 1966 legislature. 1966 Ky.Acts ch. 216, § 3 [originally compiled as KRS Chapter 123]. Its primary function was to receive and inspect campaign expenditure reports. KRS 123.086 (repealed, 1974 Ky.Aets ch. 130, § 198). Any delinquency in filing statements and reports was to be reported to the Attorney General and the Commonwealth’s attorneys. KRS 123.991 (repealed, 1974 Ky.Acts ch. 130, § 198). The present version of the campaign finance law was substantially enacted as the 1974 Corrupt Practices Act.1974 Ky.Acts ch. 253. This reform legislation gave the Registry supervisory control over all election financing. Lee v. Commonwealth, Ky.App., 565 S.W.2d 634, 636 (1978). For the first time, the Registry was authorized to investigate complaints of campaign finance violations and to initiate civil actions for injunctive, declaratory, or other relief to enforce compliance. 1974 Ky. Acts ch. 253, § 2 [now compiled as KRS 121.120(l)(e) ]. Of course, the Registry had no power to initiate criminal proceedings, and was required to notify the Attorney General or the appropriate Commonwealth’s attorney if it had reasonable cause to believe that a violation had occurred. 1974 Ky.Aets ch. 253, § 3 [now compiled as KRS 121.140(5)].

Petitioners believe that they are being investigated by the special grand jury for an alleged violation of KRS 121.150(1). A “knowing” violation of that statute is a class D felony. KRS 121.990(1). Since a class D felony is an indictable offense, the investigation of these allegations would prima facie fall within the traditional function of the grand jury. However, the petitioners interpret the provisions of KRS 121.120(5) and KRS 121.140(5) as precluding any grand jury from returning an indictment for a violation of a campaign finance law until and unless the Registry first determines that there is probable cause to believe that a knowing violation has occurred. If this interpretation were correct, the petitioners would be entitled to two bites of the probable cause apple. Both the Registry and the grand jury would be required to make probable cause determinations before an indictment could be returned. If either failed to find probable cause, there could be no indictment. This theory is not one of first impression.

In Naegele Outdoor Advertising Co. v. Moulton, 773 F.2d 692 (6th Cir.1985), cert. denied, 475 U.S. 1121, 106 S.Ct. 1639, 90 *428L.Ed.2d 184 (1986), it was claimed that KRS 121.140 vested the Registry with exclusive jurisdiction to initially investigate alleged unlawful campaign violations, and that local prosecutors and law enforcement agencies were precluded from initiating a criminal investigation until and unless the Registry determined that there was probable cause to believe that a willful violation had occurred.. The United States Court of Appeals for the Sixth Circuit found no language in KRS 121.140 vesting the Registry with such exclusive authority and held that the Registry’s statutory authority was only supplementary to that of traditional law enforcement agencies. Id. at 700.

KRS 121.140(1) authorizes the Registry upon receipt of a sworn complaint to investigate an alleged violation of the campaign finance law. Subsections (2), (3) and (4) of that statute contain provisions for the imposition of civil sanctions by the Registry in the event of a finding that “there is probable cause to believe that the law has been violated.” When Naegele was decided in 1985, what is now KRS 121.140(5) was compiled as KRS 121.140(3) and read in pertinent part as follows:

If the registry concludes that there is probable cause to believe that the law has been violated willfully, it may refer such violation to the Attorney General or to the appropriate local prosecutor for investigation and prosecution. The Attorney General or appropriate local prosecutor shall have responsibility for prosecutions under the law and may request from the registry all evidence collected in its investigation.

The statute was amended in 1988 as follows:

If the registry concludes that there is probable cause to believe that the campaign finance law has been violated willfully, it [may] shall refer such violation to the Attorney General [or to the- appropriate local-prosecutor] for [investigation and] prosecution. The Attorney General [or appropriate local prosecutor shall-have responsibility for prosecutions under the law] may request the registry’s attorney or the appropriate county or Commonwealth’s attorney to prosecute the matter and may request from the registry all evidence collected in its investigation. In the event the Attorney General or the appropriate local prosecutor fails to prosecute in a timely fashion, the registry may petition the Circuit Court to appoint the registry’s attorney to prosecute, and upon such motion for good cause shown, the court shall enter an order to that effect.

1988 Ky.Acts ch. 341, § 42. In 1992, the legislature substituted the culpable mental state of “knowingly” for “willfully,” presumably to comply with KRS 501.030(2), and inserted the words “timely filed” before “for good cause shown.” 1992 Ky.Acts ch. 288, §§ 30,46.

Petitioners assert that the 1988 amendment effectively repealed the power of the Attorney General and traditional law enforcement agencies to investigate alleged violations of the campaign finance laws. However, we view those amendments as (1) clarifying that the Registry’s probable cause determination relates only to alleged violations of the campaign finance law; (2) removing from the Registry any discretion as to whether to refer a knowing violation to the Attorney General; (3) recognizing that the Attorney General’s authority to investigate suspected criminal activity is set forth more specifically in other statutes (more on this, infra) and that repetition of that fact in this statute was surplusage; and (4) authorizing the Registry to intervene if it believes that the Attorney General and/or appropriate local prosecutors are either dragging their feet or unwilling to prosecute an alleged criminal violation of a campaign finance law. In Naegele, the Sixth Circuit found no intent in the pre-1988 statutory scheme to vest exclusive control in the Registry to the exclusion of traditional law enforcement authorities to investigate campaign finance violations. Naegele, 773 F.2d at 700. We find no legislative intent in the subsequent amendments to depart from this interpretation.

Specifically, we do not find the deletion of the words “investigation and” from KRS 121.140(5) to evidence an intent to divest the Attorney General of his duty to investigate violations of penal statutes. In the same *429chapter of the legislation which deleted the words “investigate and” from KRS 121.140(5), the legislature enacted KRS 15.242 (1988 Ky.Acts ch. 341, § 1), which provides as follows:

The Attorney General shall possess jurisdiction, concurrent with that of county and Commonwealth’s attorneys, to investigate and prosecute violations of the election laws. The Attorney General, county attorneys, and Commonwealth’s attorneys shall notify the Registry of Election Finance of any investigation or prosecution of alleged election law violations.

KRS Chapter 121 is but one of nine chapters included in Title X of the Kentucky Revised Statutes, wherein all election laws are compiled. While the Registry’s authority is limited to civil enforcement of violations of KRS Chapter 121, KRS 15.242 clearly vests the Attorney General, county attorneys and Commonwealth’s attorneys with authority to investigate and prosecute alleged criminal violations of all election laws, including campaign finance laws, restricted only by the requirement that notice of any such investigation or prosecution be given to the Registry.

In substantially reenacting a statute, the legislature is well aware of the interpretation of the existing statute and has adopted that interpretation unless the new law contains language to the contrary. Brown v. Harrodsburg, Ky., 252 S.W.2d 44 (1952). If the legislators intended to depart from the existing statutory interpretation, it is incumbent that they use “plain and unmistakable language” which leaves no doubt that a departure from the prior interpretation is intended. Long v. Smith, 281 Ky. 512,136 S.W.2d 789 (1940).

Butler v. Groce, Ky., 880 S.W.2d 547, 549 (1994). In view of its enactment of KRS 15.242 within the same chapter of the legislation which amended KRS 121.140(5), we cannot conclude that the legislature plainly and unmistakably intended by that legislation to depart from the Naegele interpretation of KRS 121.140.

Finally, the petitioners rely on the 1992 enactment of KRS 121.120(5) (1992 Ky. Acts eh. 288, § 44), which reads as follows:

All policy and enforcement decisions concerning the regulation of campaign finance shall be the ultimate responsibility of the registry. No appointed or elected state officeholder or any other person shall, directly or indirectly, attempt to secure or create privileges, exemptions, or advantages for himself or others in derogation of the public interest at large in a manner that seeks to leave any registry member or employee charged with the enforcement of the campaign finance laws no alternative but to comply with the wishes of the officeholder or person. Registry members and employees shall be free of obligation or the appearance of obligation to any interest other than the fair and efficient enforcement of the campaign finance laws and administrative regulations. It shall not be considered a violation of this subsection for an officeholder or other person to seek remedies in a court of law to any policy or enforcement decision he considers to be an abridgement of his legal rights. (Emphasis added.)

Petitioners would have us read the first sentence of this statute out of context and interpret it to preclude law enforcement officials from prosecuting a criminal violation of a campaign finance law except upon referral from the Registry. “However, it is well-settled that ‘in expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole and to its object and policy.’ ” Wathen v. General Electric Co., 115 F.3d 400, 405 (6th Cir.1997) quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 1555, 95 L.Ed.2d 39 (1987); accord Department of Motor Transp. v. City Bus Co., Inc., Ky., 252 S.W.2d 46 (1952); Henry v. Commonwealth, 312 Ky. 491, 228 S.W.2d 32 (1950). KRS 121.120(5) is itself a penal statute, the violation of which is also a class D felony. KRS 121.990(18). Its obvious purpose is to criminalize any attempt by a public official or anyone else to influence the Registry with respect to the performance of its statutory duties. Those duties do not include the prosecution of criminal violations, which are specifically assigned to the Attorney General, county attorneys, and Common*430wealth’s attorneys by KRS 15.242. Viewing the statute as a whole, we discern no legislative intent to divest traditional law enforcement agencies of their authority to investigate and prosecute alleged criminal violations of the campaign finance laws.

V. CONCLUSION.

We agree with the Sixth Circuit’s interpretation of KRS Chapter 121 as set forth in Naegele, supra. While the legislature has empowered the Registry to investigate alleged violations of KRS Chapter 121 and to impose civil sanctions for non-criminal violations, its investigative authority is not exclusive, but is concurrent with and supplementary to that of traditional law enforcement agencies to investigate suspected criminal activity. In fact, it is the Registry’s authority, not that of the Attorney General, which is limited by KRS 121.140(5). Once the Registry concludes that there is probable cause to believe that a felony has been committed, its authority to investigate terminates and it is required to refer the matter to the Attorney General.2 This does not mean that the Attorney General must wait for the Registry to make such a determination before conducting his own investigation and submitting his evidence to a properly constituted grand jury. Presumably, that is why the statute contains a provision permitting the Registry to intervene if it perceives foot-dragging or unwillingness to prosecute on the part of the Attorney General or local prosecutors, but does not contain a similar provision providing relief to prosecuting authorities if they perceive foot-dragging or unwillingness on the part of the Registry to make a probable cause determination. Prosecutors do not need such a provision, because they are not required to defer prosecution while waiting for the Registry to act.

The majority of this Court having concluded that the statutory scheme does not purport to restrict the authority of the grand jury to render an indictment, we find no need to address whether a different statutory scheme might violate the constitutional requirement of separation of powers. Cf. Commonwealth v. Halsell, Ky., 934 S.W.2d 552 (1996); American Trucking Ass’n v. Commonwealth, Transp. Cab., Ky., 676 S.W.2d 785, 789 (1984) (if there are two ways to reasonably construe a statute, one upholding its validity and the other rendering it unconstitutional, we must adopt the construction which sustains the constitutionality of the statute).

Accordingly, the petitions for a writ of mandamus are DENIED and the order of August 19, 1998 granting emergency relief is VACATED.

GRAVES, JOHNSTONE, LAMBERT and WINTERSHEIMER, JJ., concur. STEPHENS, C.J., dissents by separate opinion. STUMBO, J., not sitting.

. While it has long been the public policy of this Commonwealth to keep secret the proceedings of the grand jury, Bazzell v. Illinois Cent. R. Co., 203 Ky. 626, 262 S.W. 966, 967 (1924), that has not always been the case. See White v. Fox, 4 Ky. (1 Bibb) 369, 370 (1809).

. The dissenting opinion suggests that a probable cause finding by the Registry would usurp the power of the grand jury to make its own independent determination, or somehow would usurp the power of a district judge to make a probable cause finding at the conclusion of a preliminary hearing held pursuant to RCr 3.14. Of course, a preliminary hearing is held only when the defendant is under arrest for the alleged offense, but not yet indicted. When a case is submitted directly to the grand jury, there is no proceeding under RCr 3.14. King v. Venters, Ky., 595 S.W.2d 714 (1980). And, as we have concluded in this majority opinion, the grand jury can proceed with the performance of its constitutional duties whether or not the Registry makes a finding of probable cause.