Request By:
Honorable Roger L. Crittenden
Legal Counsel
Council on Higher Education
West Frankfort Office Complex
U.S. 127 South
Frankfort, Kentucky 40601Honorable David L. Baker
Legal Counsel
University of Louisville
Louisville, Kentucky 40208Honorable John C. Darsie, Jr.
Legal Counsel
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As attorneys respectively for the Council on Higher Education, the University of Louisville and the University of Kentucky, you have jointly asked the Office of the Attorney General to consider the validity of the following act of the 1978 General Assembly:
"(1) The boards of trustees of the state colleges and universities offering degree programs in medicine or dentistry shall allocate seventy percent (70%) of the enrollment positions for the entering class each year, equally among each of the Kentucky congressional districts, using the population of each congressional district as determined by the last decennial federal census to determine that district's proportion of the positions, and shall assign these apportioned enrollment positions for each district to those applicants who are legal residents in that congressional district.
(2) Fifteen percent (15%) of the remaining positions shall be allocated to the state at-large and assigned to applicants who are legal residents at any place within the state of Kentucky.
(3) Any qualified legal resident shall have a preference in securing an assignment to a position when compared to a nonresident.
(4) The total number of nonresidents assigned positions shall not exceed fifteen percent (15%) of the total entering class enrollment positions assigned for any school year.
(5) The selecton of entering class medical, dental or law students shall be accomplished competitively with due consideration being given scholastic standings, recommendations of the pre-professional advisory committees of the various schools where the applicants pursue the pre-professional academic program, and their performance on any required admission test, and any other procedures that deal fairly with the applicant group as a whole."
These provisions, Section 4 of Senate Bill 41, 1978 Act of the General Assembly, are to be codified as a new section of the Kentucky Revised Statutes, KRS 164.475.
You have suggested these provisions might first be assailed as being invalid for the reason of noncompliance by the General Assembly with Kentucky Constitution § 46. This section of the Commonwealth's Constitution provides that:
"No bill shall be considered for final passage, unless the same has been reported by a committee and printed for the use of the members. Every bill shall be read at length on three different days in each house; but the second and third readings may be dispensed with by a majority of all the members elected to the house in which the bill is pending. But whenever a committee refuses or fails to report a bill submitted to it in a reasonable time, the same may be called up by any member, and be considered in the same manner it would have been considered if it had been reported. No bill shall become a law unless, on its final passage, it receives the votes of at least two-fifths of the members elected to each house, and a majority of the members voting, the vote to be taken by yeas and nays and entered in the journal: Provided, Any act or resolution for the appropriation of money or the creation of debt shall, on its final passage, receive the votes of a majority of all the members elected to each house."
You stated the requirements of Section 46 were not each complied with in that this part of Senate Bill 41 was not passed by each house of the General Assembly. Your support for this position was gleaned from a review of the journals and from statements of the Chief Clerk of the House, which on their face, as we have copies of them, are quite uncontrovertible. House floor amendment 2 to Senate Bill 41, which now constitutes Section 4 of the Act, did not pass; the vote was a 40-40 vote. Thus, it is your contention that due to the failure to fully comply with Section 46, these provisions codified as KRS 164.475 should be found to be unconstitutional and not subject to being followed. Your first question and the background to this question as stated in your letter are as follows:
"1. Does Section 4 constitute a valid enactment of the Legislature?
Information made available by the Legislative Research Commission indicates that during the 1978 session of the Kentucky General Assembly, Senate Bill No. 41 repealing KRS 160.462 was introduced in the Kentucky Senate and was passed by the Senate on or about January 18, 1978. S.B. 41 was then sent to the Kentucky House of Representatives. Thereafter, five (5) amendments to S.B. 41 were introduced in the House. The second of the said amendments ('Amendment Number Two') constituted what now appears as Section 4 of the Act.
The official Journal of the House indicates that Amendment Number Two failed to pass by virtue of a forty/forty tie vote.
On or about March 18, 1978, S.B. 41 was returned to the Senate for its concurrence in the amendments added by the House. Notwithstanding the defeat of Amendment Number Two, the House Clerk's letter to the President of the Senate that was attached to S.B. 41 indicated that the House had adopted Amendment Number Two. The Senate then with a single vote concurred in the House amendments, including Amendment Number Two. Following such concurrence, S.B. 41 was then enrolled with Amendment Number Two included as though passed by both the House and the Senate. Thereafter, S.B. 41 was signed by the President of the Senate and the Speaker of the House and was then approved by the Governor of Kentucky on or about March 30, 1978."
This claim of unconstitutionality under Section 46 must be viewed against the controlling case law on the subject. This case law was synopsized in a recent opinion of this office regarding another unfortunate situation which occurred with a piece of legislation in the 1978 General Assembly. In OAG 78-283, copy attached, this office considered facts relating to an amendment of a bill passed by each of the houses of the General Assembly but which bill was erroneously enrolled, signed by both houses, and delivered to the Governor for signature without bearing the language contained in the amendment. We concluded against those facts that the omitted amendment, although passed by both houses, could not be incorporated into law. In that opinion, this office stated:
"Initially, we call your attention to the case of Golightly v. Bailey, 218 Ky. 794, 292 S.W. 320 (1927), wherein the Court recognized the legal status attached to a properly attested and enrolled bill, but at the same time pointed out that the journals may be resorted to in those instances where the legislation is ambiguous or its construction doubtful in order to ascertain the intention of the legislative body. The Court made it clear, however, that such outside references can only be resorted to where the enacted legislation involves problems relating to verbal inaccuracies, clerical errors, omitted words, or altering the arrangement or construction of sentences for clarification purposes.
On the other hand, however, the law is equally clear that where the omission in the enrolled bill involves a substantial change or an amendment such as we have here, said bill may not be impeached by the journals of either house, or any memorandum of the clerk with respect to the intention of the legislature, or in any other manner. Referring to the case of Vogt v. Beauchamp, 153 Ky. 64, 154 S.W. 393 (1913), the Court had before it the question of whether or not a bill that did not pass but which was duly enrolled, could be impeached by evidence in the journal. Quoting from the decision, we find the following:
'. . . It is sufficient to say that in the case of Lafferty v. Hoffman, 99 Ky., 80, the question was considered with great deliberation, and the various authorities discussed at length. In that case the court held that an enrolled bill, when attested by the presiding officers of the two houses of the General Assembly, as required by law, could not be impeached by the journals of these houses, but must be accepted by the courts as the bill adopted by the legislature, and as conclusive of the regularity of the steps taken in its passage. The doctrine of that case is fully sustained by the following authorities: Field v. Clark, 143 U.S., 649; Carr v. Coke, 116 N.C., 223; Duncan v. Combs, 131 Ky., 330. As the enrolled bill in this instance was properly attested by the presiding officer of each house of the General Assembly, and is therefore conclusive of the regularity of the steps taken in its passage, it follows that it may not be impeached by the journal of either house, or the memorandum of the clerk on the original bill, or in any other manner.'
See also the case of Shannon v. Dean, 279 Ky. 279, 130 S.W.2d 812 (1939)."
There is without question some considerable basis to argue that the policy reasons for the Lafferty enrolled bill rule no longer exists, especially given that the "revolution in record keeping" spoken of in Lafferty has come about due to the advent of electronic technology, video and sound tape recording, etc. Nevertheless, we are not unmindful that it is not the prerogative of this office to adopt new policy reasoning on a legal matter already litigated, but to follow the reasoning plainly stated by our appellate courts. If there is to be a change, let the courts so make the change; and it seems to us that this bill presents an excellent opportunity for such consideration. As it stands now, however, as considered under Section 46 construction, Section 4 of Senate Bill 41 does constitute a valid enactment of the General Assembly.
In your second question you ask whether Section 4 is so vague and contradictory as to be unenforceable. This second assertion for the invalidity of this provision, we believe, does have merit, for it is our opinion that Section 4 of Senate Bill 41 (KRS 164.475) is in fact so vague, indefinite and unclear so as to be inoperative and void for uncertainty in meaning. The obvious retort to this conclusion will be that no effort was made to save and not destroy this already newsworthy and, to say the least, controversial legislation, which assessment will be totally inaccurate. This office recognizes the important nature of our review of this legislation; however, try as one might, there is such mangnitude of uncertainty, inconsistency and conflict that the method of putting into effect and the operation of its provisions cannot be ascertained. For example, by using in the first sentence the language "board of trustees" it would at first be believed reference was being made to the University of Kentucky and the University of Louisville since by statute all of the other state-supported institutions of higher education are to be governed by boards of regents. Cf. KRS 164.130, 164.820 with KRS 164.310. The criticalness of this will be pointed out below. The Act goes on to provide allocation by percentage the enrollment positions "for the entering class each year." Does this mean the enrolling class in the medical and dental programs only or does this mean all programs, the various colleges and divisions, of the involved universities. The provision then states concerning this allocation of enrollment positions for an entering class that it is to be done "equally among each of the Kentucky congressional districts, using the population of each congressional district as determined by the last decennial federal census to determine that district's proportion of the positiois." There seems to this office to be no earthly way you can allocate enrollment positions equally among the Kentucky congressional districts and at the same time allot the positions proportionately to the congressional districts based upon the federal population census. Moreover, irrespective of the method by which one determines the positions are to be allotted, the Act states the positions are to be assigned to applicants who are "legal residents in that congressional district. " The statute gives no assistance at all as to how the universities are to determine "legal residents in a congressional district. " Is this determination to be made at the time of entering the universities' undergraduate programs or, if you read this Act to apply only to the medical and dental colleges, to be determined at the time of entering these professional colleges. What is meant by legal residents? Surely something other than merely legal address, for if this were the case and if consideration is to be given at the time of entering only the professional schools, there would be a lot of students who, probably married, or even not so, have as their legal address Lexington or Louisville. A person may have many residences. Is "legal residence" to mean "domicile?" See Wheeler v. Burgess, 263 Ky. 693, 93 S.W.2d 351, 353 (1936). Is "legal residence" meant to be where a person votes, pays taxes, has their automobile licensed? Clearly, or maybe not so clearly, the existence of a definitional variance of legal residence exists according to the purposes served and particular situations involved. See Hayes v. Board of Regents, 362 F. Supp. 1172, 1174 (1973), a case involving the right of a university to classify as nonresidents for tuition purposes students who have been held to be domiciled in the state for purposes of eligibility to vote. As the Kentucky Court of Appeals said in a 1977 opinion involving an insurance claim, the "floating intentions" regarding residence are typical of emancipated young adults. See Old Reliable Insurance Company v. Brown, Ky. App. 558, S.W.2d 190, 191 (1977). Or are the universities to avoid such problems by simply looking to the residences of the students' parents which will have become undoubtedly more fixed by intention. Maybe where the individuals graduated from high school is the answer. Needless to say, it is difficult to come up with one answer that is better than another in this regard.
Last, but not least, is the uncertainty of whether, instead of at the present concerning ourselves only with the University of Kentucky and the University of Louisville because of the Colleges of Medicine and Dentistry at these institutions, the Northern Kentucky University and its board of regents are also to be allotting enrollment positions since it, too, has a law school. Subsection (5) for the first time in the section expands the considerations involved to the "entering class medical, dental or law students." (Emphasis ours.)
The case law in Kentucky with respect to vagueness and uncertainty is substantial in holding that "where the lawmaking body, in framing the law, has not expressed its intention intelligently, or in language that the people upon whom it is designed to operate or whom it affects can understand, or from which the courts can deduce the legislative will, the statute will be declared to be inoperative and void. " Folks v. Barren County, Ky., 232 S.W.2d 1010, 1013 (1950). See also Kerth v. Hopkins County Board of Education, Ky., 346 S.W.2d 737, 741 (1961) and Arlan's Dept. Store of Louisville v. Commonwealth, Ky., 369 S.W.2d 9, 13 (1963). For generic reference, see Ky. Digest, Statutes 47.
Therefore, in view of the vague, indefinite and unclear language of Section 4 of Senate Bill 41 and the prevailing case law on the subject, we believe this new legislation to be inoperative and void for uncertainty in meaning.
For your third question you ask as follows:
"(3) Are the Universities required to implement Section 4 with respect to students in medicine and dentistry who are scheduled to begin classes in the Fall of 1978? If so, does Section 4 operate to impair the obligation of contracts in violation of Article I, section 10 of the United States Constitution and Section 19 of the Bill of Rights of the Kentucky Constitution?
The rosters of accepted students for the classes beginning in the Fall of 1978 were made up, and the students notified of same prior to the effective date of the Act. To revoke said acceptances at this time would appear to substantially affect the rights of students accepted."
Under the Bill of Rights of the Kentucky Constitution, Section 19 provides as follows:
"No ex post facto law, nor any law impairing the obligation of contracts, shall be enacted."
The question you have asked this office to consider, then, is whether the individual prospective students notified of admission to the universities for this 1978-79 academic year before the effective date of Section 4 of Senate Bill 41 (KRS 164.475) have vested rights which would be unlawfully impaired if the provisions of this new law were to be applied to them in a manner such as to now cause the withdrawal of certification of admission to the universities. We are of the opinion the answer to this question is definitely in the affirmative.
Your third question brings into consideration retroactivity of legislation. KRS 446.080(3) provides that no statute is to be given retroactive effect unless clearly so stated. Senate Bill 41 became effective June 17, 1978. The problem is, however, that the necessary actions taken by the state universities to compile an enrolling class for this coming academic year, which academic year obviously will not commence until after the effective date of the statute, were taken a considerable time before the effective date. Thus, notice of acceptance to the universities for academic year 1978-79 had been provided to various individuals before the effective date of the law. If the universities were to rescind their notification under the direction of this legislation, such action would be subject to certain legal attack. The legislation would work an impairment of a contract, or at least the expectation of contract, between the universities and the students so previously notified; and certainly the students who had been notified of acceptance will have taken steps in good faith reliance in that notification which occurred prior to the effective date of the Act. The statutory provision if now implemented as to the 1978-79 academic year would impair vested rights of the students ready to enroll at the universities involved.
It is well established that the state cannot through legislative enactment impair the obligation of contract. See German Insurance Company v. Commonwealth, 141 Ky. 606, 133 S.W. 793, 794 (1911). Statutes will not be given a retroactive effect if (1) they impair vested rights, or (2) the intent to give retroactive effect is not clearly expressed. Dean v. Gregory, Ky., 318 S.W.2d 549, 552 (1958). The Court of Appeals, in Cotton v. Walton-Verona Independent G School District, 295 Ky. 478, 174 S.W.2d 712, 715 (1943), quoting from a much older case in determining what constituted "impairment of the obligations of contract" within the meaning of constitutional provisions, stated:
"'To be in conflict with the constitution, it is not necessary that the act of the legislature should import an actual destruction of the obligation of contracts; it is sufficient that the act imports an impairment of the obligation. If, by * * * any degree impaired; or, what is the same thing, if the obligation be weakened, or rendered less operative, the constitution is violated, and the act so far inoperative. '"
"Thus, it seems clear that the strength of every contract lies in the right of the promisee to rely upon the constitutional security against impairment of its obligation by legislation and in the right to resort to courts of public justice for the redress of its violations." Board of Education v. City of Louisville, 288 Ky. 656, 157 S.W.2d 337, 343 (1941).
Therefore, it is our opinion that any effort to apply this Act to the enrolling class for the 1978-79 academic year would present an impairment of obligations infirmity. However, no such infirmity could arise as to the potential entering enrollees for the 1979-80 academic year since notification of acceptance to the universities for that academic year has not as yet been initiated.
Your fourth question presents what amounts to possibly the most serious of all of the constitutional challenges. You have asked as follows:
"(4) If implemented, would Section 4 operate to deny the equal protection of the law respecting certain prospective students by making said prospective students' chances of acceptance or rejection by the colleges of medicine and dentistry depend, to some extent, upon their place of residence within the state in violation of the Fourteen Amendment to the United States Constitution and Section 3 of the Kentucky Constitution?"
Section 4, Senate Bill 41, restricts the consideration an individual may receive for enrollment in the universities to a suspect factor - residence. Again, depending upon what is meant by "legal residence, " an individual will not just be competing against other Kentucky residents for an enrollment position but for one of the positions allotted to the congressional district of his legal residence. If the allotted positions for a congressional district are used up, no matter what an individual's qualifications may be for enrollment in the universities, the individual will at best be lumped into the fifteen percent group of "just a Kentucky resident" for consideration of enrollment. See Senate Bill 41, subsection (2), supra.
It would seem that considering prospective students by their legal residence in a congressional district for enrollment to the state institutions of higher education grants a special privilege to certain individuals which is prohibited by Section 3 of the Kentucky Constitution. Kentucky Constitution, Section 3, states:
". . . [A]nd no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services;"
In this regard, there exists certain parallels of the provisions of Senate Bill 41 with the legislation under consideration in Barker v. Crum, 177 Ky. 637, 198 S.W. 211 (1917). In that case certain students selected from each county were, by statutory provision, to be permitted to attend the University of Kentucky without tuition or fee expense. The Kentucky Court of Appeals looked at this situation against Section 3 of our state constitution and stated, at page 213:
"The constitutional declaration against the granting of special privileges to any man or set of men states the sweeping prohibition and the only exception thereto. They can be granted to no one, except in consideration of public services theretofore rendered. It is immaterial who the man is, or where the set of men reside, or how they are distributed throughout the state; unless they earn them in the manner pointed out in the Constitution, to wit, by the rendition of public services, they are prohibited."
Just as the students in Barker could show no public service which entitled them to "something more at the hands of the state than the thousands of other worthy girls and boys in precisely the same situation," we do not see how the General Assembly may, through Senate Bill 41, grant something more by way of a special consideration for admission to the universities based simply upon the possibly fortuitous fact of their "legal residence. "
Along these same lines we believe is a strong argument against the constitutional validity of this new statutory provision based upon an inherently suspect classification such as to be violative of the Equal Protection Clause of the Fourteenth Amendment to our United States Constitution. The Kentucky Court of Appeals, in Johnson v. Dickson, Ky., 501 S.W.2d 256, 257-258 (1973), stated quite importantly in this regard as follows:
"Classifications based on alienage, nationality, or duration of residence have been held to be inherently suspect and therefore unconstitutional unless the public body making the classification can demonstrate that the classification is necessary to promote a compelling governmental interest. See Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274; Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534. We believe the same holding must apply to a classification based on place of birth, as is the one here claimed to exist." (Emphasis in the original.)
In Johnson the issue under consideration was whether a local public common school system could give preference for jobs to that county's natives. The Court said to permit such a classification there would have to be a compelling state interest. The Court concluded that such a policy for employment, based upon place of birth, was unconstituionally discriminatory and preferential. Moreover, and importantly, as we reflect back on the argument regarding special privileges, the Court found in Johnson that such a "place of birth" policy was in violation of Sections 1, 2 and 3 of the Kentucky Constitution. See 501 S.W.2d at 258.
Therefore, it is the opinion of this office that Section 4 of Senate Bill 41 violates Kentucky Constitution Section 3 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
In your fifth question you have asked and stated as follows:
"(5) If implemented, would Section 4 operate to deprive certain prospective students of liberty or property without due process of law in violation of the Fourteenth Amendment to the United States Constitution and Section 1 of the Kentucky Constitution?
It would seem that due process considerations may be raised by the attempt to implement a portion of an Act which was not adopted by the Legislature as mandated by the Kentucky Constitution."
We believe the possible argument to be made with respect to due process could avail itself in attacking the enrolled bill doctrine discussed above. It does strike us that there is a good argument here to be made to a court of competent jurisdiction against the policies underlying the enrolled bill doctrine.
Lastly, you question whether Senate Bill 41, Section 4, violates Section 51 of the Kentucky Constitution. We do not believe so. Kentucky Constitution, Section 51, states in full:
"No law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length."
It seems to us that whatever else may be said about Senate Bill 41, it is an independent Act. In Fiscal Court of Jefferson County v. City of Anchorage, Ky., 393 S.W.2d 608, 611 (1965), the Court of Appeals stated:
"When an act does not purport to be an amendment to an existing law, but a new act, it is not necessary to set out or republish any part of an old law that may be changed or repealed. Board of Penitentiary Com'rs v. Spencer, 159 Ky. 255, 166 S.W. 1017, 1023 (1914). 'Section 51 of the Constitution does not require that statutes which are amended or repealed merely by implication, or by the superseding effect of the later enactment, be republished and set forth at length.' Board of Trustees of Policemen's and Firemen's Retirement Fund of City of Paducah v. City of Paducah, Ky., 333 S.W.2d 515, 521 (1960)."
In view of such an interpretation of Section 51, it must reasonably follow that to the extent the new legislation would modify or alter the authority of the Council on Higher Education's powers for determining qualification for admission to the public institutions of higher education under KRS 164.020(3), there is no constitutional impediment.
CONCLUSION
It is the conclusion and advisory opinion of this office that Senate Bill 41, Section 4, suffers several constitutional infirmities. The General Assembly may not transgress inhibitions contained in the Kentucky and Federal Constitutions and courts have power to declare laws in violation thereof to be illegal and void.