COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT DIVISION II CASE NO. 17-CI-1246

Transcription

1 KENTUCKY HOUSE OF REPRESENTATIVES COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT DIVISION II CASE NO. 17-CI-1246 PLAINTIFF v. DEFENDANT S RESPONSE BRIEF OPPOSING PLAINTIFF S MEMORANDUM IN SUPPORT OF COMPLAINT AND NOTICE OF APPEAL BLUEGRASS INSTITUTE FOR PUBLIC POLICY SOLUTIONS * * * * * DEFENDANT Defendant, Bluegrass Institute for Public Policy Solutions ( Bluegrass Institute ), by counsel, submits the following response opposing Plaintiff s Memorandum in Support of F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of Complaint and Notice of Appeal ( Memorandum ) filed contemporaneously with its Complaint in this Open Meetings Act case. In its memorandum, the Kentucky House asserted that the office of the Attorney General erred in its November 1, 2017, open meetings decision 17-OMD-228, In re: Bluegrass Institute for Public Policy Solutions/Kentucky House of Representatives by concluding that [t]he House of Representatives violated the Open Meetings Act in holding a closed meeting with a quorum present to discuss pension reform. For the reasons that follow, the open meetings decision of the Attorney General should be affirmed, the House s Complaint dismissed, and judgment entered in Bluegrass Institute s favor. COUNTERSTATEMENT OF FACTS On August 29, 2017, the Kentucky House of Representatives conducted a meeting at which a quorum of its members attended for the purpose of discussing pension reform. DANIEL DESROCHERS, It affects everything. What s at stake as Kentucky s pension war begins,

2 Lexington Herald-Leader (Aug. 29, 2017). Although non-house members were in attendance as presenters, the meeting was closed to the media and the public. Id. On September 6, 2017, the Bluegrass Institute s Center for Open Government submitted an Open Meetings complaint to then-speaker of the House Jeff Hoover pursuant to KRS (1). [Plaintiff s Exh. 1.] 1 In its complaint, Bluegrass Institute argued that because the August 29th meeting consisted of a quorum of the Kentucky House at which the body discussed public business in the form of pension reform, and because the meeting did not fall within one of the enumerated exceptions to open meetings under the Act, the Kentucky House s exclusion of the public from the meeting violated KRS (1), which provides that [a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of which any action is taken by the agency, shall be public meetings, open to the public at all times. Id. (emphasis added). Bluegrass Institute further proposed remedies for the Open Meetings violation, including: (1) an acknowledgement by the House that it violated the Act; (2) disclosure of copies of any written or recorded materials from the August 29th meeting; and (3) issuance of a resolution committing the House to future compliance with the Open Meeting Act. [Plaintiff s Exh. 1.] The House, in responding to Bluegrass Institute s complaint, rejected the notion that it violated the Open Meeting Act. [Plaintiff s Exh. 2.] In did so by characterizing the August 29th meeting as merely a meeting of the House Majority Caucus, which was open to the members of the House Minority Caucus. [Id.] Thus, the House reasoned that the August 29th meeting did 1 In this brief, Bluegrass Institute will cite to Plaintiff s Exhibits 1-5 filed with its Complaint because those exhibits are true and accurate copies of the parties correspondence (and the Attorney General s opinion) for which duplicate exhibits are unnecessary. 2

3 not violate the Act because both entities [the majority and minority caucuses] are specifically exempt from the Open Meetings Law. [Id. (citing KRS (1)(i).] Unpersuaded by the House s analysis, Bluegrass Institute, pursuant to KRS (2), initiated a timely appeal of the House s denial of its Open Meeting complaint to the office of the Attorney General on October 17, [Plaintiff s Exh. 3.] Bluegrass Institute argued that the House s argument relied upon a flawed legal premise, i.e., that a meeting at which a quorum of that body (comprised of members from both parties) is present can constitute a caucus meeting. [Id.] Bluegrass Institute further explained that the authorities upon which the House relied were inapposite since the August 29th meeting was neither a caucus meeting of the majority party nor of both the majority and minority parties, collectively. In support of its F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of argument, Bluegrass Institute pointed to Open Meetings decisions 93-OMD-63 and 93-OMD-64 as the relevant (and governing) precedent for its position. [Attached collectively as Defendant s Exh. 1.] On November 1, 2017, the Attorney General issued 17-OMD-228 affirming the Bluegrass Institute s position. [Plaintiff s Exh. 5.] Citing 93-OMD-63 and 93-OMD-64, the Attorney General refused to depart from that precedent and concluded that because there was a quorum present and members of both the majority and minority caucuses present... the meeting was not a caucus meeting and [was] subject to the Open Meetings Act. The Attorney General further concluded that no statutory exception permitted closing the August 29th meeting to the public, thus doing so violated the Act. [Id. at 4.] The House then initiated this Open Meeting action seeking to overturn 17-OMD-288. However, as is explained below, the Attorney General correctly concluded both that the August 29th meeting did not constitute a statutorily exempt caucus meeting and that the meeting was 3

4 subject to the required openness mandated by the Act for which no other exception applied. Thus, 17-OMD-228 is legally correct and should be affirmed in full. ARGUMENT I. BECAUSE A QUORUM OF THE HOUSE, CONSISTING OF MEMBERS OF BOTH PARTIES, ATTENDED THE AUGUST 29th MEETING, THE MEETING WAS NOT A CAUCUS MEETING EXEMPT FROM THE OPEN MEETINGS ACT. The central question in this case is relatively straightforward may the House of Representatives evade the requirements of the Open Meetings Act by simply characterizing a meeting of a quorum of its members (which are comprised of members of both the majority and minority parties) as a caucus meeting? This question closely mirrors one presented to the F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of Attorney General twice in 1993, and a careful review of the Open Meetings Act and those decisions reveal that the answer to this question is plainly no. 2 Specifically, in 93-OMD-63 and 93-OMD-64, the Attorney General analyzed challenges to a nearly identical closed meeting of the members of the House of Representative. The complainants alleged that the House violated KRS (1) when its members conducted a closed meeting to discuss Governor Brereton Jones s health care reform proposal. As a threshold matter, the Attorney General determined that the House was bound by the requirements of the Open Meetings Act as a public agency. In doing so, the Attorney General noted that KRS (2)(b) defines public agency to include [e]very state or local legislative board, commission, and committee. And the Attorney General further observed that KRS (1)(i) created an exception for closed session discussions of [c]ommittees of the General 2 The appellate standard for review of open meetings determinations is de novo. KRS (3); Kentucky Bd. of Exam'rs of Psychologists v. The Courier - Journal & Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992); Webster Cnty. Bd. of Educ. v. Franklin, 392 S.W.3d 431, (Ky. App. 2013); Bd. of Commissioners of the City of Danville v. Advocate Communications, Inc. d/b/a The Advocate Messenger, 527 S.W.3d 803, 806 (Ky. 2017). 4

5 Assembly other than standing committees a provision that would be unnecessary if the House were generally exempt from the statute s provisions. Id. at *2 ( If the House of Representatives was, generally, excluded from the coverage of the Open Meetings Act, then the law would not make a distinction as to what kinds of House Committees are excluded from the provisions of the Act. ). Of particular relevance here, the Attorney General also addressed the House s assertion that the closed meeting was merely a caucus meeting. But the Attorney General specifically rejected that assertion, noting that Webster s Third New International Dictionary (1963) defines caucus... as... [a] conference of party or organization leaders (as in legislators) to decide on policies, plans, appointees and candidates; a local or regional meeting of party members to F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of choose candidates or delegates. The Attorney General further observed that if invitations were extended to all members [of the House], regardless of party affiliation, then, by definition, the meeting was not a caucus meeting. 93-OMD-63, at *2 (May 28, 1993); 93-OMD-64, at *2 (May 28, 1993). In those cases, however, the Attorney General lacked any information to controvert the House s assertion that a quorum of its members did not attend the meeting; thus, the Attorney General was unable to conclude that the closed-door meeting violated the Open Meetings Act. 93-OMD-63, at *3 (May 28, 1993); 93-OMD-64, at *3 (May 28, 1993). As in 93-OMD-63 and 93-OMD-64, there is no reasonable dispute here that members of both the majority and minority parties attended the August 29th meeting. [See Memorandum in Support of Plaintiff s Complaint and Notice of Appeal, at 2 ( Speaker Hoover did not refuse the entry of any members of the House Minority Caucus who [wished to attend the August 29th meeting] ); DANIEL DESROCHERS, It affects everything. What s at stake as Kentucky s pension war begins, Lexington Herald-Leader (Aug. 29, 2017); ADAM BEAM, Kentucky House Holds 5

6 Private Meeting to Discuss Pensions, Associated Press (Aug. 29, 2017) (noting that Rep. Jim Wayne appeared to be the only lawmaker to leave the meeting after he requested that it be open to the public).] And that fact alone precludes the August 29th meeting from being a caucus meeting within the meaning of the Open Meetings Act because the Attorney General s observations regarding the parameters of what constitutes a caucus meeting is highly persuasive authority that should be afforded great weight by this court. In matters relating to open records requests, we are bound to give great weight to the Attorney General's open record decisions. See York v. Commonwealth, 815 S.W.2d 415, 417 (Ky.App.1991); Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328, 330 (Ky.App.2008). 3 Moreover, unlike the 1993 Open Meetings decisions, there is no evidentiary shortcoming F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of here regarding whether a quorum of the House members attended the August 29th meeting. [See, e.g., Memorandum in Support of Plaintiff s Complaint and Notice of Appeal, at 2; ADAM BEAM, Kentucky House Holds Private Meeting to Discuss Pensions, Associated Press (Aug. 29, 2017) (noting that Rep. Jim Wayne appeared to be the only lawmaker to leave the meeting after he requested that it be open to the public).] Nor has the House made any assertions to the contrary, such as in the 1993 decisions. [See attached Defendant s Exh. 2: Plaintiff s Response to Defendant s First Set of Interrogatories and Requests for Production of Documents, at 4 (in response to Interrogatory No. 2, House refused to provide names of the individuals who attended the August 29th meeting).] Thus, because the August 29th meeting consisted of a quorum of a 3 The Attorney General s conclusion is also consistent with well-recognized principles of statutory construction, in that statutory language, if not specifically defined, must be construed as it is generally understood in the context of the matter under consideration. Utilities Management Group, Id., citing Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (internal quotation marks omitted). 6

7 public agency discussing public business, it was properly subject to the requirements of the Open Meetings Act. In an attempt to avoid the consequences of having improperly closed the August 29th meeting, however, the House ostensibly seeks to re-define caucus meeting to include meetings comprised of both majority and minority members, even when a quorum of its members are present. But this argument, if accepted, would allow the Open Meeting Act exception for caucus meetings under KRS (1)(i) to swallow the general rule of openness because the House would be free to call any meeting of a quorum of its members a caucus meeting. Such a result is fundamentally at odds with the underlying policy of the Act which states that the formation of public policy is public business and shall not be conducted in secret and the F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of exceptions provided for by KRS shall be strictly construed. KRS (emphasis added). Nor do the House s cited authorities compel a different conclusion. Following the 1993 Open Meeting Act decisions by the Attorney General, both the House and Senate adopted resolutions recognizing their majority and minority caucuses as [c]ommittees of the General Assembly other than standing committees. But, even though the Attorney General, in 94-OMD- 23, indicated that a properly constituted caucus might qualify for exclusion from the requirement of public meetings, that is inapplicable here because a meeting of the full legislative body (involving members of both parties) cannot reasonably be characterized as a caucus meeting. Similarly, in 05-OMD-148, the Attorney General reaffirmed a longstanding interpretation of KRS that excluded from the Act s requirements meetings of committees of the General Assembly. But that decision did not involve a properly constituted caucus meeting; rather, it involved the Louisville Arena Task Force. Thus, it, too, is inapposite. 7

8 And in 96-OMD-28, the Attorney General affirmed a closed meeting of the House Committee of Investigation, which had been formally constituted by House resolution as a [c]ommittee of the General Assembly other than a standing committee. The Attorney General did so noting that all of the evidence presented on the subject indicates that the House Committee of Investigation is not a standing committee of the General Assembly... But, as noted above, the evidence here establishes that the August 29th meeting was of the House as a whole at which a quorum (comprised of members of both the majority and minority parties) attended. As such, 96-OMD-28 is simply inapplicable. Because the August 29th meeting was a meeting of a public agency at which a quorum of its members was present and public business was discussed, and because members of both the F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of majority and minority parties were present, no statutory exception exists to render the meeting beyond the openness requirements of Kentucky s Open Meetings Act. Thus, the House s failure to allow the public entry into the August 29th meeting violated the Act. II. NEITHER SEPARATION OF POWERS NOR LEGISLATIVE IMMUNITY PRECLUDE ENFORCEMENT OF THE OPEN MEETINGS ACT AGAINST THE HOUSE. The House also asserts that irrespective of the Open Meetings Act, legislative immunity authorized it to exclude the public from its August 29th meeting because no statute or court rule will override the immunity provided in the Kentucky Constitution for the Legislature. [Memorandum in Support of Plaintiff s Complaint and Notice of Appeal, at 7 (quoting Wiggins v. Stuart, 671 S.W.2d 262, 264 (Ky. App. 1984).] In doing so, the House seeks to convince the court to adopt a rule of statutory construction that, if accepted, would require courts to defer whenever the House declares (unilaterally) that a statutory obligation imposed upon it conflicts with a legislative rule. To fully appreciate the magnitude of the error contained in the House s 8

9 argument and the dangerous precedent it would set if accepted by this Court, one must closely examine the flawed premise upon which it is based. Specifically, the House invokes its inherent (and uncontroversial) authority to adopt and enforce its own legislative rules and to unilaterally change those rules in accordance with its internal mechanisms for doing so. But the House then goes on to assert that in construing any duly enacted legislation that impacts the manner in which it conducts its business (as unilaterally determined by the House, itself), courts must accept that such statutes are intended by the legislature to be applied in the nature of its own legislative rules. Unstated by the House, of course, is that it may unilaterally adopt, repeal, modify, or otherwise replace its own rules at any time. Thus, accepting the House s argument would require courts to construe statutory language applicable to the House in light of its purported impact (as determined solely by the House) upon legislative rules that may not even have existed when the statute was enacted. Such a conclusion is simply inconsistent with fundamental principles of statutory construction and, if adopted, would expand legislative authority at the expense of the judiciary s ability to provide a meaningful check on that authority particularly where, as here, the legislature has explicitly delegated to the courts that authority. KRS (1) ( The Circuit Court of the county where the public agency has its principal place of business... shall have jurisdiction to enforce the provisions of [the Open Meetings Act] as they pertain to that public agency, by injunction or other appropriate order ) (emphasis added); Stephenson v. Woodward, 182 S.W.3d 162, 167 (Ky. 2005), as modified (Jan. 19, 2006) (holding that where the General Assembly has specifically conferred jurisdiction upon the courts to adjudicate issues constitutionally reserved to the legislature, the courts are able to do so). 9

10 Nor are the cases cited by the House Wiggins v. Stuart, 671 S.W.2d 262, 264 (Ky. Ct. App. 1984) and Bd. of Trustees of Judicial Form Ret. Sys. v. Attorney Gen. of Com., 132 S.W.3d 770, (Ky. 2003) supportive of its position. First, Wiggins involved a declaratory judgment suit brought against members of the Kentucky legislature in their official capacity (as purported necessary parties) in a case challenging legislation to increase legislative pensions. 671 S.W.2d at 264 ( The sole issue presented on this appeal is whether members of the Kentucky legislature are immune from a declaratory judgment suit, which is brought against them in their official capacity, when they are the beneficiaries of the subject matter of the suit. ). In rejecting plaintiffs official-capacity claims against the members of the legislature, the Court of Appeals observed that no Kentucky statute or court rule will override the [legislative] immunity F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of provided in the Kentucky Constitution. Id. at 264. Wiggins, therefore, is simply inapposite to the situation presented here in which the statutory framework adopted by the General Assembly in the Open Meetings Act applies, by its own terms, to the meetings of the General Assembly unless the meeting falls within one of the statutorily proscribed exceptions. Thus, violations of the Act can, in fact, be enforced by this court notwithstanding the House s purported attempt to assert legislative immunity. See Department of Corrections v. Furr, 23 S.W.3d 615 (Ky. 2000) (rejecting invocation of sovereign immunity against claims brought under the Kentucky Civil Rights Act because to do otherwise would frustrate[] the act s purpose and intent, deprive[] many... citizens of its protection, and render[] meaningless its pledge against discrimination, and would be inconsistent with the act itself which, by its own terms, applied to the state thus conferring on individuals a cause of action against it). 10

11 Similarly, the Board of Trustees decision is also distinguishable from this action. First, that case involved a challenge to a statutory enactment on the basis that, inter alia, the legislature failed to obtain an actuarial analysis in accordance with state law. Board of Trustees, 132 S.W.3d at 772. In concluding that the legislature s failure to obtain the statutorily proscribed actuarial analysis did not undermine the validity of the challenged statute, the Kentucky Supreme Court noted that the requirement to obtain an actuarial analysis constituted a procedural rule governing the manner in which the General Assembly would exercise its legislative function. As such, the actuarial assessment requirement was wholly within the General Assembly s ambit of legislative authority rendering the question of whether (or not) to comply with it within the General Assembly s sole discretion. Id. at 777. The Court further concluded that the fact that the F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of procedural rule was codified by statute did not alter its conclusion. Here, by contrast, the Open Meetings Act requirement does not constitute a mere procedural rule impacting the manner in which the General Assembly enacts a statute. Rather, it confers a right upon the public to observe government meetings at which public business is conducted. Moreover, the General Assembly has made itself subject to the Act, and such a delegation is enforceable in the courts. Stephenson, 182 S.W.3d at 167 (holding that despite having no inherent power to pass on the... eligibility of [legislative] candidates, legislative delegation of authority to judicial branch to do so confers jurisdiction upon the courts and is therefore enforceable by the courts). As such, this court may reach the central issue of this case whether the August 29th meeting violated the Open Meetings Act and, by appropriate orders, enforce the Open Meetings Act against the House because it has specifically conferred authority to do so pursuant to KRS , et seq. 11

12 CONCLUSION In Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012), the Kentucky Supreme Court reaffirmed the underlying principle of the Open Meetings Act, i.e., that the formation of public policy is public business and shall not be conducted in secret. Id. (quoting KRS ). The few exceptions to the Act s requirements must be strictly construed so as to avoid improper or unauthorized closed, executive or secret meetings. Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923 (Ky.1997); KRS ( [T]he exceptions provided for by KRS or otherwise provided for by law shall be strictly construed. ). In this case, the House conducted public business behind closed doors on August 29th, and it did so with a quorum of its members (from both parties) present. As such, the meeting F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of cannot legally (or logically) be described as a caucus meeting that is exempt from the requirements of the Open Meetings Act. That is the conclusion reached by the office of the Attorney General in 17-OMD-228, and that decision should be affirmed in full by this Court. To do otherwise would broaden the narrow exception for caucus meetings contained in the Open Meetings Act to encompass any meeting of the House or Senate, a result that is incompatible with the underlying purpose for the Act and inconsistent with the relevant authority. Respectfully submitted, s/ William E. Sharp William E. Sharp BLACKBURN DOMENE &BURCHETT PLLC 614 West Main Street, Suite 3000 Louisville, Kentucky (502) wsharp@bdblawky.com - and - 12

13 Amye Bensenhaver Bluegrass Institute Center for Open Government 322 Mallard Drive Frankfort, Kentucky Counsel for Defendant Bluegrass Institute CERTIFICATE OF SERVICE It is hereby certified that the foregoing was served on March 22, 2018, via the Court s electronic filing system, which will send notice electronically to the following: F23A9A46-1F2F-4FDD-AC8D-B0E69C6C332F : of Anne Tyler Morgan, Esq. Laura Hendrix, Esq. anne.morgan@lrc.ky.gov laura.hendrix@lrc.ky.gov Counsel for Kentucky House of Represenatives /s William E. Sharp William E. Sharp Counsel for Defendant Bluegrass Institute It is further certified that the foregoing was served on March 22, 2018, via electronic mail, to the following: Hon. Matt James, Assistant Attorney General matt.james@ky.gov /s William E. Sharp William E. Sharp Counsel for Defendant Bluegrass Institute 13