Board of Education of Ashland School District v. Chattin

MONTGOMERY, Judge

(dissenting).

In my judgment the majority opinion is wrong. It is wrong in principle in so far as it seeks to extend the decision in American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, Ky., - S.W.2d -. It is wrong again when it incorporates admitted dictum which is unsound.

The American Beauty Homes case stands for the proposition that the Legislature cannot by statute require the Court to hear de novo a matter previously determined by a planning and zoning commission in the exercise of a legislative function. Under the doctrine of separation of powers of government, the legislature cannot foist upon the judiciary the exercise of such legislative powers. This was the holding in the American Beauty Homes case. General statements therein which indicate the broad application of the rule to administrative matters and boards are dictum and should not be taken as a basis for the decision in the majority opinion.

Further, the majority opinion gratuitously indicates that generally the proceedings before a school board should be governed or conducted in conformity with the Kentucky Rules of Civil Procedure. Specific suggestions referred to a bill of particulars and a so-called clarification of procedural questions. Appellee’s refusal to answer certain questions was also condemned. None of these propositions is supported by any citation or authority, but all rest upon broad statements of dictum for their soundness.

Appellee’s conduct with reference to certain financial reports and his management of certain financial affairs were under examination by the School Board. Conceivably, criminal or civil liability may have attached to him. At least he loses his employment under this decision.

The majority opinion indicates that unless he had been charged with a crime he was not entitled to refuse to answer certain questions under a claim of privilege of immunity as a witness under Kentucky Constitution, Section 11. In Rutherford v. Commonwealth, 59 Ky. (2 Metcalfe) 387, it was held that inasmuch as the answers to certain interrogatories might have subjected the witness to a criminal or penal prosecution “he was not bound to answer them.” The rule extends to civil cases as-well as to criminal cases, and it is not necessary that the witness be examined in the' course of a penal or criminal prosecution. Akers v. Fuller, 312 Ky. 502 , 228 S.W.2d 29 . It is a shield and protection available to all persons summoned as witnesses. Young v.. Knight, Ky., 329 S.W.2d 195 , 77 A.L.R.2d 994 . In a fuller discussion of the principle-by Rees, J., in the Akers case, quoting from Kindt v. Murphy, Judge, 312 Ky. 395 , 227 S.W.2d 895 , it is stated that “the privilege extends to all manner of proceedings in which testimony is to be taken.” The majority opinion, taken on its face, would deprive the witness of this sacred constitutional right with one broad unfounded assertion.

The dictum concerns the bill of particulars and further indicates that the Board in its hearing, held pursuant to statute, was. “entitled also to the benefit of discovery and amendment.” In substance the majority opinion indicates that the Kentucky Rules of Civil Procedure should control the conduct of such a preliminary hearing.

*699 The school board is a creation of legislative enactment. The regulations for the conduct of its affairs must be based on statutory authority. Its right to conduct hearings and the method of so doing should be done in accordance with statutory authority; hence, I consider it outside the function of the judiciary to suggest or tell this creation of the legislature that it should conduct a hearing in accord with the Kentucky Rules of Civil Procedure.

The inconsistency of this Court in doing so was never more apparent. In the American Beauty Homes case, earlier referred to, a statute which undertook to impose on the judiciary a legislative function was held unconstitutional as a violation of the doctrine of separation of governmental powers. The matter is thoroughly and adequately condemned therein. Again, in City of Covington v. Meyer, Ky., 376 S.W.2d 679 , the Court by its original opinion approved another expression of the same doctrine in upholding a statute in these terms:

“Conceding the improvidence of such a law, we cannot for that reason ignore or evade it. We are constitutionally unable to substitute our judgment of what is wise for that of the legislature.” *

I cannot agree with the dictum in the majority opinion by which the judiciary undertakes to foist upon a legislative creation, performing an executive function, the use of the Kentucky Civil Rules of Procedure in the face of two such strong opinions on the separation of governmental powers rendered on the same day.

(Subsequently deleted from the original opinion).