# Fox v. Grayson > Kentucky Supreme Court · April 22, 2010 · 317 S.W.3d 1 URL: https://www.frixlaw.com/law-library/cases/9748758 ## Case - **Full name:** Virginia G. FOX, Appellant, v. Trey GRAYSON (In His Official Capacity as Secretary of State of the Commonwealth of Kentucky); Steven L. Beshear (In His Official Capacity as Governor of the Commonwealth of Kentucky); And Pam Miller, Appellees - **Court:** Kentucky Supreme Court - **Decided:** April 22, 2010 - **Citations:** 317 S.W.3d 1; 2010 Ky. LEXIS 88; 2010 WL 1636738 - **Precedential status:** Published - **Opinion:** Concurrence by Abramson - **Judges:** Minton, Noble, Scott, Venters, Abramson, Cunningham, Schroder - **Cited by:** 229 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9748758 ## How later opinions describe it (automated extraction) - stating the elements of an IIED claim: “1. The wrongdoer’s conduct must be intentional or reckless; 2. The conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; 3. There must be a causal connection betwe… - holding appellate court may properly consider, sua sponte, public records and government documents - applying the statutory construction tenet referred to as ex-pressio unius est exclusio alterius (the mention of one thing implies the exclusion of another) ## Opinion text ABRAMSON, J., concurring in result only. I concur in result only and write separately to state a point of fundamental disagreement with the well-reasoned majority opinion. Specifically, I disagree with the following observation by the majority regarding how it came to pass that the confirmation provision in § 93, as amended in 1992, was confined to the Senate: We are unwilling to assume that the General Assembly omitted reference to the House in § 93 by oversight. Instead, we agree with Fox that the absence of language referencing the House in § 93 should rationally be interpreted as a conscious decision by the General Assembly not to include the House in confirming nominees. Before, during and after the 1992 legislative session, the Kentucky General Assembly has passed legislation, which provides for bicameral confirmation of appointments to at least eight different boards and commissions. In my view, these laws reflect a clear, good faith belief on the part of the majority of both houses of the General Assembly that bicameral confirmation is constitutionally permissible. Unfortunately, given the plain wording of § 93, it is not. I firmly believe that the wording of § 93 was chosen to address the separation of powers issue raised, and eventually addressed by this Court, in Kraus v. Kentucky State Senate, 872 S.W.2d 433 (Ky.1994). In a classic case of focusing on the tree and forgetting to see the forest, SB 226 produced a constitutional amendment which specifically recognized the Senate confirmation provision at issue in Kraus but inadvertently undermined the bicameral confirmation provisions which had been deliberately included in prior legislation and which would continue to be included in laws relating to various boards and commissions in the years that followed. The majority is correct that this Court must construe what it has before it and in § 93 we have language that does not admit a construction that is most likely what the General Assembly actually intended if their prior, contemporaneous and subsequent acts are considered. As for the idea that their intent has been rendered of secondary import, or even irrelevant, by the vote of the people, I cannot fully subscribe to that view. Notably, we have entrusted to the legislature the significant responsibility of initiating the constitutional amendment process. Ky. Const. § 256. As representatives of the people, their intent in proposing a constitutional amendment is vital and, therefore, it is equally vital that that intent be fully and painstakingly stated in any ballot question. If the overarching concept of the confirmation process, which in some instances is confined to the Senate but which in other instances has been shared by both houses of the Kentucky General Assembly, had been carefully considered in drafting the proposed amendment, I truly believe that we would not have been left with the “tree” that is now before us. We have been, however, and the language used in § 93 is so unambiguous that I can find no *22 defensible basis for looking beyond that clear language. Consequently, I must reluctantly concur in result. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748758. Public record. Not legal advice.