Constitution -- in crisis or at work?
Kentucky's General Assembly has a fascinating situation on its hands regarding one of its newly-elected members -- at least, the Senate has determined that she was elected. In November's elaction for the 37th District seat, Republican Dana Seum Stephenson faced off against Democrat Virginia Woodward for the right to represent that district in the Kentucky Senate. On November 1, one day before the election but over two weeks after absentee balloting had begun on October 15, Woodward filed a lawsuit in Jefferson County, alleging that Stephenson failed to meet Kentucky's residency requirement for the Senate. The following day, Stephenson out-polled Woodward by approximately 1,000 votes to win the election the democratic way. Subsequently, the Jefferson Circuit Court held that Stephenson was not a duly qualified candidate, handing Woodward the election the Democratic way.
Stephenson did not appeal the circuit judge's ruling, instead filing a challenge with the Senate. Under Section 38 of the Kentucky Constitution, "[e]ach House of the General Assembly shall judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law." The Senate voted to seat Stephenson as the duly-elected Senator; Woodward has filed suit in Franklin Circuit Court asking a judge to award her the seat and to prevent Stephenson from acting in her senatorial capacity.
The Franklin County lawsuit represents a potentially monumental struggle between the courts and the legislature over who has the ability to determine who may be seated as a member of the legislature. Article 27 of the Kentucky Constitution states, "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." Article 28 then states, "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."
Essentially, Woodward is now asking a court to force the legislature to seat her as the duly elected senator from the 37th District. Does a court have the power, under the Constitution, to do so? One former chief justice of the Kentucky Supreme Court thinks so. The highly respected former justice, John Palmore, speaking of the Jefferson Circuit Court's ruling, stated, "Right or wrong, when a judge decides something, it is binding on the people involved if they don't appeal."
This is true as far as it goes. But if the Court does not have the authority to make the decision in the first place, there is no binding effect on anyone resulting from a piece of paper that a judge may choose to issue from his chambers. For instance, a judge may issue a decree declaring Dan Rather or Michael Moore to be paragons of media objectivity, but that does not necessarily make it so.
The crucial questions in this case are, was this a properly contested election, and if so, what are the procedures designated by law to determine the dispute? If this was not a properly contested election, which most Senate Republicans apparently believe, no court -- not even the Kentucky Supreme Court -- can tell the Senate who it must recognize as a member of that body.
In 1900, in Beckham v. Taylor, the highest Court in Kentucky examined a challenge to the legislature's determination of the winner of a gubernatorial election. The Court, while stating that it was "firmly convinced . . . that the General Assembly . . . [had] done two faithful, conscientious, and able public servants an irreparable injury in depriving them of the offices to which they were elected by the people of this Commonwealth; and a still greater wrong has been done a large majority of the electors of this Commonwealth who voted under difficult circumstances to elect these gentlemen to act as their servants in the discharge of the duties of these great offices," nevertheless refused to intervene:
"[T]he courts of the State, under the limitations imposed by the Constitution have no power to go behind the legislative journals, and review the judgment of the General Assembly in a proceeding over which they are given, by the Constitution, exclusive jurisdiction, and from whose determination of the question no appeal is provided. . . . [I]t appears from the exhibits filed with the petition that the General Assembly have, pursuant to these regulations, decided the contests for the offices of Governor and Lieutenant Governor in favor of the contestants, and if no appeal or power to review their finding is given to the courts by the Constitution, which is the basis of all power both in the Legislature and in the courts, their finding would seem to be conclusive of the question."
Even if this century-old case does not provide the resolution to the current fiasco, all parties would be better served to faithfully remember the emphasized portion of the text.
For the record, the actions of the Senate Republicans are pretty shoddy, and appear to be motivated by the desire to have a supermajority to work with in the immediately pending off-year session. Elections are to be conducted by rules that are put in place before the election occurs, and should not be changed during the middle of the contest. This was one of the driving principles in Florida in the 2000 presidential election. Interestingly, the residency requirement is what forced Hunter Bates off the gubernatorial ticket as Ernie Fletcher's running mate. I know that Democrats still outnumber Republicans in Kentucky in terms of voter registration, but doesn't the GOP have enough Kentucky residents to place on the ballot for elections? This is becoming an embarassing (and recurring) problem for Republicans in the Commonwealth.
Stephenson did not appeal the circuit judge's ruling, instead filing a challenge with the Senate. Under Section 38 of the Kentucky Constitution, "[e]ach House of the General Assembly shall judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law." The Senate voted to seat Stephenson as the duly-elected Senator; Woodward has filed suit in Franklin Circuit Court asking a judge to award her the seat and to prevent Stephenson from acting in her senatorial capacity.
The Franklin County lawsuit represents a potentially monumental struggle between the courts and the legislature over who has the ability to determine who may be seated as a member of the legislature. Article 27 of the Kentucky Constitution states, "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." Article 28 then states, "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."
Essentially, Woodward is now asking a court to force the legislature to seat her as the duly elected senator from the 37th District. Does a court have the power, under the Constitution, to do so? One former chief justice of the Kentucky Supreme Court thinks so. The highly respected former justice, John Palmore, speaking of the Jefferson Circuit Court's ruling, stated, "Right or wrong, when a judge decides something, it is binding on the people involved if they don't appeal."
This is true as far as it goes. But if the Court does not have the authority to make the decision in the first place, there is no binding effect on anyone resulting from a piece of paper that a judge may choose to issue from his chambers. For instance, a judge may issue a decree declaring Dan Rather or Michael Moore to be paragons of media objectivity, but that does not necessarily make it so.
The crucial questions in this case are, was this a properly contested election, and if so, what are the procedures designated by law to determine the dispute? If this was not a properly contested election, which most Senate Republicans apparently believe, no court -- not even the Kentucky Supreme Court -- can tell the Senate who it must recognize as a member of that body.
In 1900, in Beckham v. Taylor, the highest Court in Kentucky examined a challenge to the legislature's determination of the winner of a gubernatorial election. The Court, while stating that it was "firmly convinced . . . that the General Assembly . . . [had] done two faithful, conscientious, and able public servants an irreparable injury in depriving them of the offices to which they were elected by the people of this Commonwealth; and a still greater wrong has been done a large majority of the electors of this Commonwealth who voted under difficult circumstances to elect these gentlemen to act as their servants in the discharge of the duties of these great offices," nevertheless refused to intervene:
"[T]he courts of the State, under the limitations imposed by the Constitution have no power to go behind the legislative journals, and review the judgment of the General Assembly in a proceeding over which they are given, by the Constitution, exclusive jurisdiction, and from whose determination of the question no appeal is provided. . . . [I]t appears from the exhibits filed with the petition that the General Assembly have, pursuant to these regulations, decided the contests for the offices of Governor and Lieutenant Governor in favor of the contestants, and if no appeal or power to review their finding is given to the courts by the Constitution, which is the basis of all power both in the Legislature and in the courts, their finding would seem to be conclusive of the question."
Even if this century-old case does not provide the resolution to the current fiasco, all parties would be better served to faithfully remember the emphasized portion of the text.
For the record, the actions of the Senate Republicans are pretty shoddy, and appear to be motivated by the desire to have a supermajority to work with in the immediately pending off-year session. Elections are to be conducted by rules that are put in place before the election occurs, and should not be changed during the middle of the contest. This was one of the driving principles in Florida in the 2000 presidential election. Interestingly, the residency requirement is what forced Hunter Bates off the gubernatorial ticket as Ernie Fletcher's running mate. I know that Democrats still outnumber Republicans in Kentucky in terms of voter registration, but doesn't the GOP have enough Kentucky residents to place on the ballot for elections? This is becoming an embarassing (and recurring) problem for Republicans in the Commonwealth.
posted by Hal | 4:02 PM
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