Opinion
NO. 2014-CA-000745-MR
05-08-2015
EDWARD H. FLINT APPELLANT v. KENTUCKY LEGISLATIVE ETHICS COMMISSION APPELLEE
BRIEFS FOR APPELLANT: Edward H. Flint, Pro se Louisville, Kentucky BRIEF FOR APPELLEE: H. John Schaaf Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 14-CI-00267
OPINION
AFFIRMING
BEFORE: DIXON, KRAMER AND THOMPSON, JUDGES. THOMPSON, JUDGE: Edward H. Flint, pro se, appeals from an order of the Franklin Circuit Court dismissing his action seeking an order compelling the Kentucky Legislative Ethics Commission (KLEC) to conduct an adjudicatory hearing on his ethics complaint against Speaker of the House of Representatives, Greg Stumbo. The circuit court ruled that Flint failed to state a claim upon which relief can be granted under Kentucky Rules of Civil Procedure (CR) 12.02(f) and dismissed his complaint. We affirm.
Flint sought to initiate impeachment proceedings against the Governor of Kentucky, five Kentucky Supreme Court Justices, five Kentucky Court of Appeals Judges, five Jefferson Circuit Court Judges, and one Jefferson District Court Judge. Under Section 66 of the Kentucky Constitution, the power of impeachment is vested in the House of Representatives and the procedure to be followed set forth in Kentucky Revised Statutes (KRS) 63.030. Speaker Stumbo is the presiding officer of the House.
After filing the various impeachment petitions, Flint filed a complaint with the KLEC alleging Speaker Stumbo engaged in unethical conduct when dealing with his impeachment petitions. He alleged Speaker Stumbo or someone at his direction, pressured or blackmailed the Louisville Courier Journal, the Lexington Herald, and the Associated Press so that the news entities would not report on Flint's impeachment petitions.
Speaker Stumbo filed an answer denying any violation of the Code of Legislative Ethics by himself, his staff, or any member of the House leadership. Additionally, Speaker Stumbo stated the impeachment documents filed by Flint did not conform to KRS 63.030 in that the documents were not accompanied by executed affidavits. He further stated that the documents were not received during a regular legislative session during which the House could review or act upon the alleged violations.
A preliminary inquiry hearing was scheduled for January 8, 2014. Prior to that date, Flint amended his complaint with the KLEC to allege that Speaker Stumbo violated the Code of Legislative Ethics when he did not promptly notify him of the deficiencies in his impeachment petitions.
At the preliminary inquiry, Flint testified regarding the lack of news coverage regarding his impeachment petitions and his concern that he was not earlier notified of the deficiencies in his petitions. Following the inquiry, the KLEC issued an order dismissing Flint's complaint. It found Flint did not "furnish any substantive evidence beyond his personal speculation, showing contact by the Speaker or someone at his direction, with any of the news media concerning Mr. Flint's impeachment efforts." Likewise, investigation by the KLEC uncovered no evidence of contact, "let alone 'blackmail."' Addressing the allegation in the amended complaint, the KLEC found there was nothing in the Code of Legislative Ethics that required Speaker Stumbo to return Flint's deficient impeachment petitions or notify him of the deficiencies. In light of its findings, an adjudicatory hearing was not held.
Flint filed this action in the Franklin Circuit Court. He requested that the Court order the KLEC to conduct an adjudicatory hearing on his ethics complaint and permit discovery. The Franklin Circuit Court granted the KLEC's motion to dismiss for failure to state a claim upon which relief can be granted. CR 12.02(f).
Our standard of review for dismissals pursuant to CR 12.02(f) is as follows:
The court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim. In making this decision, the circuit court is not required to make any factual determinations; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?James v. Wilson, 95 S.W.3d 875, 883-84 (Ky.App. 2002) (internal quotations and footnote omitted). Under this stated standard, the truth or falsity of Flint's claims against Speaker Stumbo is not at issue. The question is whether Flint is entitled to seek judicial relief from the KLEC's dismissal of his complaint alleging ethical violations against Speaker Stumbo.
"Kentucky's public scandal involving the indictment and conviction of legislators, former legislators, and lobbyists for criminal misconduct prompted/hastened the enactment of Senate Bill 7 during the first extraordinary session of 1993." Associated Industries of Kentucky v. Commonwealth, 912 S.W.2d 947, 950 (Ky. 1995). The legislation included changes to KRS Chapter 6 referred to as the "Kentucky Code of Legislative Ethics." Id.
KRS 6.651 provides for the establishment of the ethics commission as an independent authority and agency of the legislative branch. The commission's authority includes the authority to receive complaints regarding violation of the Legislative Ethical Code, investigate, and conduct preliminary inquiries. Upon a finding of probable cause, the commission is further empowered to conduct adjudicatory proceedings. KRS 6.686. KRS 6.691(8) provides for an appeal to the Franklin Circuit Court after an adjudicatory hearing by "[a]ny person found by the commission to have committed a violation of [the ethical] code[.]" (Emphasis added).
The KLEC precisely followed the statutory procedures upon receipt of Flint's complaint against Speaker Stumbo. It conducted a preliminary inquiry and investigation and found no probable cause that Speaker Stumbo committed an ethical violation to warrant an adjudicatory hearing.
There is no statutory authority for Flint to appeal the KLEC's dismissal of the complaint against Speaker Stumbo. The only person who may appeal to the Franklin Circuit Court is one who has been found to have committed a violation. As noted by the Franklin Circuit Court, there is no statutory authority for Flint's complaint and he did not allege any constitutional violation that would confer jurisdiction on that court.
In his amended complaint filed with the KLEC, Flint alleged Speaker Stumbo violated the ethics code because he did not promptly notify Flint that his impeachment petitions against the Governor and various justices and judges were not properly verified as required for impeachment petitions. See KRS 63.030. According to Flint's allegations, the first in his series of impeachment petitions was filed in June 2013. However, he was not notified of the deficiency in his petitions until December 4, 2013, when he was sent a letter by the Chief Clerk of the House. Flint then refiled the petitions with the Clerk.
We agree with the KLEC that there is no provision in the Code of Legislative Ethics which would require Speaker Stumbo to notify Flint that the impeachment petitions were deficient. Additionally, this issue is moot in light of Flint's acknowledgment that he refiled the petitions for impeachment.
The Franklin Circuit Court also interpreted Flint's pro se complaint to request that the court order the House of Representatives to act on his impeachment petitions. It properly noted that the power of impeachment is within the exclusive power of the House of Representatives under Section 66 of the Kentucky Constitution and the power to establish its rules of procedure for that process conferred to it by Section 39 of the Kentucky Constitution. Under the separation of powers doctrine contained in Sections 27 and 28 of the Kentucky Constitution, one branch of government cannot interfere with the authority of another coequal branch of government. See Legislative Research Com'n By and Through Prather v. Brown, 664 S.W.2d 907 (Ky. 1984).
The order of the Franklin Circuit Court dismissing Flint's complaint is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Edward H. Flint, Pro se
Louisville, Kentucky
BRIEF FOR APPELLEE: H. John Schaaf
Frankfort, Kentucky