An Imaginary Hurley-Richards Defense

As KSN&C readers know, I'm not an attorney, so take my ramblings with a grain of salt. But I've been trying to imagine the defense attorney JoEllen McComb might use in an attempt to derail the FCPS appeal of Ernesto Scorsone's circuit court ruling in the Hurley-Richards case. (I'm seeking the actual brief, but it will be next week at the earliest before I can see it.)

Bob Chenoweth will argue for the district that the court is bound by KRS 13B.150(2) and that the court cannot substitute its judgement for that of the Tribunal when it comes to the weight of evidence.

13B.150 Conduct of judicial review.
(1) Review of a final order shall be conducted by the court without a jury and shall be confined to the record, unless there is fraud or misconduct involving a party engaged in administration of this chapter. The court, upon request, may hear oral argument and receive written briefs.
(2) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the final order or it may reverse the final order, in whole or in part, and remand the case for further proceedings if it finds the agency's final order is:
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion;
(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or
(g) Deficient as otherwise provided by law.

OK. That seems very straightforward. How can the district lose? Scorsone appears to have done a little evidence weighing himself in determining that the Tribunal's conclusions were "without support of substantial evidence..." The word "substantial" would certainly seem to indicate a weighing of the evidence occurred.

But there are lots of laws and some are higher than others. I wonder if McComb will make a constitutional claim on Hurley-Richards' behalf.

Would granting the district's claim constitute an

unconstitutional breach of the separation of powers?

Here's my imaginary defense:

The Kentucky Constitution is particularly strong on the separation of powers. Authored by a guy named Thomas Jefferson, our Constitutional provisions related to the separation of powers contain explicit provisions which mandate a separation among the three branches of government. At Sec 27:

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.

That's the part everyone remembers because David Williams and other politicians have made outrageous claims in recent years, in an attempt to extend that separation into more power for the legislature (...or was it just Republicans?).

But there's a second part to the provision at Sec 28:

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.

So my question is: By what right does the legislature constrain the manner in which the courts consider evidence? The power to try cases by hearing evidence and reviewing governmental processes would seem to belong exclusively to the judiciary.

It seems to me that the Kentucky Court of Appeals could choose to reject as improper the limitations placed on the court in KRS 13B.150(2) - a violation of the separtation of powers doctrine - and uphold the lower court ruling.

In LRC v Brown (Ky.) 664 S. W. 2d 907, 912 (1984) the Kentucky Supreme Court declared that the separation of powers doctrine must be "srictly construed."

In Rose v Council for Better Education (Ky.) 790 S.W. 2d. 186, 60 Ed Law Rep. 1289 (1989) that same court reiterated that "the power to legislate belongs to the General Assembly, and the power to adjudicate belongs to the judiciary. It is our goal to honor both the letter and the spirit of that constitutional mandate."

Just as the court is constrained from dictating to the legislature how it goes about its business, the legislature is constrained from dictating to the judiciary how judges must adjudicate.

Did I mention that I'm not an attorney?

Oh, and one more thing. The language in KRS 13B.150(2) says the court can "remand the case for further proceedings..." So, one supposes that if the district wins its appeal, the case would return to the circuit court for final disposition.