applying the federal due process framework to a claim brought under both the Fourteenth Amendment and Section 2
How later courts described this case
- applying the federal due process framework to a claim brought under both the Fourteenth Amendment and Section 2
- The test for procedural due process from Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), applies to procedural due process claims raised- under section 2 of the Kentucky Constitution.
- “[W]hen this Court analyzes state legislation under the federal Due Process and Equal Protection Clauses, it is bound by the decisions of the United States Supreme Court.”
- J. Cooper, concurring in part and dissenting in part
Written by the judges who cited it.
The opinion
Dissenting opinion by
Justice ROACH.
I join Justice Cooper’s excellent dissent. I write separately, however, to discuss my dismay at the majority’s cavalier use of Section 2 of the Constitution of Kentucky. *741 While Section 2 certainly means something, its language cries out for a standard to guide its use and application. Unfortunately, the majority opinion fails to articulate any such standard. Quite simply, the majority’s approach allows the courts of this Commonwealth to discard traditional standards for evaluating legislation and effectively allows the courts to sit as super-legislative bodies. This will allow the courts of the Commonwealth to use Section 2, as interpreted in the majority opinion, to reach any result that suits a particular judge’s whims.
Almost fifteen years ago, in a pair of articles published in the Northern Kentucky Law Review and the Kentucky Bench & Bar, John David Dyche exhaustively traced the origins of Section 2 and its historic use by the courts of Kentucky. See John David Dyche, Section 2 of the Kentucky Constitution — Where Did It Come From and What Does It Mean?, 18 N. Ky. L.Rev. 503 (1991); John David Dyche, The History and Meaning of Section 2 of the Kentucky Constitution, Ky. Bench & Bar, Vol. 55, No. 4, at 17 (Fall 1991). He concluded the law review article by stating:
If the court desires to continue employing section 2 as a substantive protection of property rights it must articulate the rationale and standards on which it does so. Arguments in support of a revival of substantive due process have been advanced by scholars on grounds including economic efficiency and institutional competency as well as history and political theory. The Kentucky Supreme Court should recognize and address these arguments. Unless it does so, the court itself will appear to be arbitrary in its interpretation of a constitutional provision which denies the existence of arbitrary power.
18 N. Ky. L.Rev. at 524.
This Court has once again failed to adopt such standards. I too find it quite ironic that this Court is more than willing to apply Section 2 to the legislative branch, yet remains unwilling to consider the possibility that its haphazard use of that section is itself tantamount to an exercise of absolute and arbitrary power.
COOPER and JOHNSTONE, JJ„ join this dissenting opinion.