Ruling against pension law win for public’s right to know
Published 5:33 am Wednesday, July 4, 2018
Apply it to other situations, and Kentucky Republicans’ rejoinder to the overturning of their new pension law would sound something like: “But, Officer, I have driven drunk and run red lights hundreds, if not thousands, of times, you can’t stop me now.”
The Kentucky Constitution is outdated in some ways, but the provision at the heart of Franklin Circuit Judge Phillip Shepherd’s ruling against Gov. Matt Bevin was foresighted and as relevant now as 127 years ago.
That provision protects Kentuckians’ ability to know what the legislature is doing and to voice their concerns when it matters, before lawmakers vote.
The conflict over the pension bill is easily cast as partisan politics. But Shepherd’s ruling, if upheld by the state Supreme Court, will be an important victory for the public and the public’s right to know and participate in the making of Kentucky’s laws.
And, as the constitutional drafters would have said, the ruling also protects the integrity of the legislature itself.
What happened on the 57th day of this year’s 60-day session is exactly what the drafters of the constitution were trying to prevent. The Republicans who control the legislature gutted a bill “relating to the local provision of wastewater services” and replaced its contents with 291 pages of changes to public pension laws, then, within a few hours, voted on and approved the measure in both chambers.
Shepherd’s ruling quotes from the 1891 constitutional debates in which, he writes, “the drafters were greatly concerned with the ‘fraudulent substitution of bills.’” They had seen bills passed and sent to the governor in a single day and “believed that this ‘hasty mode of legislation ought to be checked, not only in the interest of the people, but in the interest of the legislative body itself.”” So they enacted Section 46, requiring that bills receive readings on three different days in each chamber, “to,” as they said at the time “throw guards around hasty legislation, and render it impossible for … bills to be railroaded through the Legislature.”
Section 46 also requires that any legislative act that appropriates money or creates debt receive a majority of votes from all the elected members of both chambers.
The way the sewer/pension bill was enacted failed on both counts, making it, as Shepherd ruled, unconstitutional.
Republicans are warning that the ruling invalidates other laws that were enacted using the same unconstitutional process.
House Speaker Pro Tem David Osborne said the ruling jeopardizes “decades of enacted revisions to Kentucky statutes.” Bevin’s office issued a dire warning that “our legal system will descend into chaos” if the “hundreds, if not thousands of bills” that were enacted through the same process as the sewer/pension bill are invalidated.
Such concerns are overblown. No other laws will be invalidated unless they’re challenged in court. And the legislature can always re-enact them using the proper process as it has done before when laws were struck down on constitutional procedural grounds.
A far greater threat to the rule of law would be accepting the argument that if you do something that’s wrong and unconstitutional over and over again, it somehow becomes sacrosanct.
The railroading through of the sewer/pension bill this year was the culmination of a trend that started after Republicans took control of the Senate in 2000 and began more frequently resorting to procedural shortcuts to speed legislation and reduce public scrutiny.
Courts have upheld other states’ provisions similar to our three-readings requirement, Shepherd said, while Bevin failed to cite a single example “from any jurisdiction” upholding “this legislative sleight-of-hand.”
Shepherd is right when he says that “public notice of the contents of legislation” is fundamental to any “legislative process based on the consent of the governed.” Surely, Kentuckians have as much right to that as residents of other states.