the Dissenting Opinion by Justice Rosalind in the State of Washington case, joined by
two others, does address the problem: "The real and only party against whom relief
is demanded is the legislature and that body is one which is not amenable to suit...
[T]he people have seen fit to protect the members of their legislature from
harassment by litigants while they are in session (Const. art. 2, ?16). [Note: Our
Kentucky Constitution does likewise in ?43; see Wiggins v. Stuart, Ky.App., 671
S.W.2d 262 (1984) ]. When they are not in session, they are not a legislature. The
legislature is not a corporate body, and its officers are not authorized to accept
service on behalf of their fellow members. Furthermore, it is contrary to the nature
of our representative form of government to permit interference by the court with
the internal functioning of the legislature." [Emphasis added.] 585 P.2d at 127.
Using a very liberal procedural construction, our Majority Opinion reaches the
conclusion that the President Pro Tempore and Speaker of the House "were in fact
named in a representative capacity." The question is, representing who? Certainly
not the individuals who will serve in the next General Assembly. This Court cannot
assert power over these future legislators to direct their future actions or to punish
them for contempt if they fail to legislate in response to our mandate in a manner
that we deem appropriate.
In Legislative Research Comm' v. Brown, Ky., 664 S.W.2d 907 (1984), wherein it
was the General Assembly trying to expand the nature of its legislative function
rather than the judiciary seeking to direct it, we stated: "The Kentucky General
Assembly is not one of continuous session... A legislative body ceases to exist at the
moment of its adjournment." 664 S.W.2d at 915.
The Speaker of the House and the President Pro Tempore of the Senate were elected
to preside at the last legislative session. They cannot be designated as
representatives of a body that "ceases to exist." Under our Constitution the House of
Representatives and the Senate have power to choose officers anew "biannually."
Ky. Const. ?34. This means they must be elected anew every two years, when the
General Assembly regenerates and reorganizes as provided for in the Kentucky
Constitution ?36. Who is the legal representative for the next General Assembly
between sessions when it has no official existence? For that matter, who is to say
that an order entered against the leadership while in session is binding upon the
members of the General Assembly?
In sum, it is pure fiction, not legal fiction, to hold that the President Pro Tempore and
the Speaker of the House at the last legislative session represent the General
Assembly, or that the General Assembly is before this Court in this case for purposes
of adjudication. This is a lawsuit with no defendants. It is one thing to order a school
district to take some specific actions required by the constitution or statutes, or to
desist from actions contrary thereto, as was done in Wooley v. Spalding, Ky., 293
S.W.2d 563 (1956), and quite a different thing to declare unconstitutional the action
of legislators as individuals or as a body in failing to enact "appropriate legislation" to
"provide for an efficient system of common schools throughout the State [Ky. Const.
? 183]," particularly when we have not been asked to designate any specific
legislation as constitutionally inappropriate. A school district is a legal entity created
by statute with a corporate existence. Its actions as a body may be judicially
reviewed and it may be ordered as a body by a court to take certain specific actions
that the law requires. Such is not the case with our General Assembly.
Finally, there is one further procedural problem when we undertake to order
legislators what to do. The manner in which legislative power is exercised, like
judicial power, is discretionary. It is fundamental premise of mandamus against
public officials in the exercise of legislative or judicial power, that mandamus will not
lie to compel the exercise of a discretionary power in any particular way. Fannin v.
Keck, Ky., 296 S.W.2d 226 (1956); Childers v. Stephenson, Ky., 320 S.W.2d 797
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