Commonwealth Ex Rel. Cowan v. Wilkinson

828 S.W.2d 610, 1992 WL 52368

• Court: Kentucky Supreme Court
• Decided: March 6, 1992
• Docket: 91-SC-988-I
• Status: Published

Opinions

WINTERSHEIMER, Justice.

This matter was before the Court on December 9, 1991, pursuant to a CR 65.09 motion which seeks to vacate or modify an order issued by the Court of Appeals which dissolved a temporary injunction granted by the Franklin Circuit Court.. The Franklin Circuit Court temporary injunction prohibited Wallace G. Wilkinson, then Governor of the Commonwealth of Kentucky, from being sworn in and acting as a member of the Board of Trustees of the University of Kentucky pursuant to an executive order he issued on December 2, 1991, appointing himself to such position in order to fill a vacancy and pursuant to a commission issued by him and the Secretary of State. The Attorney General contends that the original injunctive relief was proper and that, the order of the Court of Appeals was in error.

The precise posture of this case is a review pursuant to CR 65.09 of the order of dissolution issued by the Court of Appeals. CR 65.09 provides in part that a review of such an order is discretionary with this Court and that such a motion will be entertained only for extraordinary cause shown in the motion. The order of this Court issued December 9, 1991, was not a decision on the merits in this matter, but merely affirmed the order of the Court of Appeals dissolving the temporary injunction.

The salient issues to be decided by this Court are 1) whether extraordinary cause exists for overturning the Court of Appeals decision, and 2) whether the circuit court abused its discretion in granting a temporary injunction.

On December 2, then Governor Wilkinson appointed himself to the Board of Trustees of the University of Kentucky to fill the vacancy created by the death of member-at-large Albert B. Chandler. K.R.S. 164.130(1) provides that the Governor shall make all appointments to the Board of Trustees and provides some minimal qualifications for members-at-large. The Governor appointed himself by virtue of an executive order to a term ending June 30, 1997. The Attorney General sued to enjoin the Governor from being sworn in and acting as a Trustee because he contends that such self-appointment is contrary to public policy. Wilkinson argued that without immediate relief from the Court of Appeals, the Office of Governor would be irreparably harmed because the circuit court invaded his executive authority to appoint members to fill vacancies on the U.K. Board of Trustees. Wilkinson also argued that the circuit court order violates the separation of powers by imposing judicial policy making on the executive and legislative branches of government and thereby violates the constitutional system of government.

The appellate review of the decision by the Court of Appeals and the underlying decision of the Franklin Circuit Court is tempered by the recognition that a temporary injunction is an extraordinary remedy and the sufficiency of the evidence presented to the circuit court must be evaluated in the light of both substantive and equitable principles. The propriety of a temporary injunction is basically addressed to the sound discretion of the circuit court. Unless the circuit court has abused its discretion, a reviewing court has no authority to set aside a temporary injunction.

The purpose of statutory requirements for the issuance of temporary injunctions is to ensure that injunctions are issued only where absolutely necessary to preserve a party’s rights pending a trial on the merits. Although a temporary injunction is not to be substituted for a full trial on the merits, the party seeking the injunction must clearly demonstrate either by verified complaint, affidavit or other proof that harm is likely to occur unless the injunction issues. CR 65.04. In order to demonstrate a right to a temporary injunction, the movant must first allege possible abrogation of a concrete personal right. Some substantial claim to a personal right must be alleged in order for a movant to be entitled to a temporary injunction. CR 65.-04. A doubtful case should await a trial on the merits because the temporary injunction often has the effect of enforcing a mere claim of right. It is also necessary that a clear showing be made that rights of the movant will be immediately impaired. A remote possibility of some feared wrong in the future is not sufficient to support an award of a temporary injunction. The party seeking the injunction must demonstrate an urgent necessity for the relief requested. CR 65.04.

In determining the propriety of a temporary injunction it is important to determine whether the public interest will be harmed by the issuance of an injunction or whether its effect would be to maintain the status quo. The mere allegation of irreparable injury is insufficient to justify a temporary injunction.

The sufficiency of a verified complaint to support a temporary injunction should be evaluated by balancing the hardships test which provides that if the complaint shows probability of irreparable injury and equities are in favor of issuance, it is sufficient if the complaint raises serious questions warranting a trial on the merits. If a party requesting temporary injunction has shown the probability of irreparable injury, presented a substantial question as to the merits and the equities are in favor of issuance, then a temporary injunction should be granted.

Applying those standards to this situation, it would appear that the motion of the Attorney General did not meet the requirements of the extraordinary remedy for injunctive relief as established by Civil Rule 65.03; 65.04 and Maupin v. Stansbury, Ky.App., 575 S.W.2d 695 (1978). The Attorney General has not demonstrated or made a clear showing by affidavit or verified complaint that his rights are being or will be violated so as to cause immediate and irreparable injury.

Maupin, supra, indicates that a party must first allege possible abrogation of a concrete personal right. Here the Attorney General has no personal right of any kind. A doubtful case should await a trial on the merits. This is clearly a very doubtful case as to the standing of the Attorney General.

The remote possibility of some feared wrong in the future is insufficient to support an award of a temporary injunction. It is necessary to show that there is a probable harm which would occur prior to trial. Here there is no clear showing of just exactly what harm will result from Wilkinson’s service as one of the sixteen trustees until a trial on the merits. We are not convinced that there was any proof of any real harm to be associated with Wilkinson’s participation in a vote as one of sixteen members of a Board of Trustees which would cause irreparable harm. The apprehension or fear of possible harm is not sufficient.

The assertion by the Attorney General that any action taken by Wilkinson as a Trustee will be irreversible is not supported by any evidence. To support an extraordinary remedy of injunction, there must be shown a practically certain injury. Cf. Oscar Ewing, Inc. v. Melton, Ky., 309 S.W.2d 760 (1958); Hager v. New South Brewing Co., Ky., 90 S.W. 608 (1906). The single affidavit presented by the Attorney General is not sufficient to justify such a conclusion.

Certainly the Trustees can reconsider any action. The denial of the requested injunctive relief does not render a possible final judgment in favor of the movant meaningless as is required under Maupin. The removal of Wilkinson as a Trustee can occur at any time within his term as Trustee which does not end until 1997. The arguments presented to the circuit court are mere speculation. The Attorney General has failed to allege and prove facts which clearly show immediate and irreparable harm. Therefore injunctive relief was not warranted.

Our next consideration is a review of the maintenance of the status quo. Actually it would appear that the temporary injunction would change the status quo because Wilkinson is now a member of the Board of Trustees and injunctive relief would prevent him from acting in any capacity as a member and therefore disturb the status quo.

Section 76 of the Kentucky Constitution provides that the Governor shall have power to fill vacancies by granting commissions. In this case the commission was issued on December 2, 1991 and therefore Wilkinson was a Trustee at that time. K.R.S. 164.130 permits the Governor to appoint trustees to fill vacancies. It is important to recognize that K.R.S. 164.150 specifically provides that Trustees of the University of Kentucky are not public officers except for certain limited purposes in connection with the state procurement code. Therefore, there would be no incompatibility between an elected constitutional office and service as a Trustee.

There is no particular significance to the taking of an oath at a board meeting or elsewhere. There is no statute that indicates there is a necessary prerequisite of an oath in connection with the discharge of duties as a trustee. Section 228 of the Kentucky Constitution requires an oath for officers before they enter their duties. The trustees are not public officers. Consequently, it would appear that Wilkinson was a Trustee as of December 2, and that the injunction to prevent him from acting really alters the status quo rather than preserving the status quo. Considering the equities of the situation, we do not find a basis to justify the granting of the extraordinary remedy of a temporary injunction at this time.

The Attorney General has argued that the action by Wilkinson is contrary to common law public policy. Clearly the establishment of public policy is not within the authority of the courts. Section 27 of the Kentucky Constitution provides that the powers of government be divided into three distinct units: Executive, Legislative and Judicial. The establishment of public policy is granted to the legislature alone. It is beyond the power of a court to vitiate an act of the legislature on the grounds that public policy promulgated therein is contrary to what the court considers to be in the public interest. It is the prerogative of the legislature to declare that acts constitute a violation of public policy. Owens v. Clemons, Ky., 408 S.W.2d 642 (1966). Cf. Freas v. First Federal Savings and Loan Assn, of Bowling Green, Ky.App., 636 S.W.2d 660 (1982).

K.R.S. 164.130 as enacted by the legislature permits the Governor to make appointments to the Board of Trustees. There is no limitation in that statute which prohibits the Governor from being a Board member or from appointing himself. Accordingly, the courts cannot write such a limitation into the statute on the grounds of public policy. Where there is no exception to the positive terms of a statute the presumption is that it intended none and it is not within the authority of a court to introduce an exception by construction or interpretation. Manning v. Kentucky Board of Dentistry, Ky.App., 657 S.W.2d 584 (1983).

In this instance, the legislature made no exception to the qualified persons whom the Governor could appoint to the at large seats on the Board of Trustees. It would seem apparent that the General Assembly did not intend any such exception to be applicable to the Governor because the legislature has enacted other statutes to prohibit certain office holders from holding a second office. K.R.S. 61.080 through 61.-090. In this situation it has decided not to make the office of Governor statutorily incompatible with membership on the Board of Trustees.

There is no express or implied restriction on the Governor from appointing himself to the Board of Trustees in either the statutes or the Constitution. The courts cannot legitimately usurp the province of the executive by applying some theory of common law public policy. Judicially created common law must always yield to the superior policy of legislative enactment and the Constitution. Cf. General Electric Co. v. American Buyers Cooperative, Ky., 316 S.W.2d 354 (1958).

It should be observed that the framers of the Kentucky Constitution did include several provisions prohibiting certain officeholders from filling other state positions by labeling them incompatible as in constitutional sections 44, 160, 165 and 237. No such constitutional prohibition applies to the qualifications of Wilkinson, or any other Governor to sit on the Board of Trustees.

The legislature enacted statutes establishing the Board of Trustees and dealt with the authority of the Governor to appoint members to the Board who meet certain general qualifications. There is no legislative prohibition to the Governor appointing himself. No political party imbalance was created by this appointment. Therefore the legislature in effect established a public policy which does not include any implied prohibition of self-appointment. This Court cannot legislate by judicial fiat.

A careful examination of the statute does not disclose any incompatibility with the office of Governor and membership on the Board of Trustees. In fact, until 1972, the Governor and several other public officers were automatically members of the Board by virtue of their office. In 1972 when the legislature enlarged the Board of Trustees it created several at-large positions which gave the Governor unlimited authority and discretion to fill such positions by appointment. The only qualification was that the appointments be balanced between the two major political parties of the state.

Although the Attorney General argues that there is some vague diminution of public confidence in government, the real harm would be to establish a kind of government by judicial activism, rather than have the courts interpret and apply the constitutional and statutory laws to a given situation. There is no indication that Wilkinson has violated a clear provision of either the statutes or the constitution and the courts should not intrude on the domain of either the legislature or the executive. To do so is an abuse of discretion and we believe that the Franklin Circuit Court has committed such an abuse.

It should be clearly understood that the mere acknowledgement of the authority of a governor to appoint himself as a Trustee does not imply that any governor has the power to appoint himself or herself to any position which is a public office. The argument by the Attorney General in this respect is of no consequence. The boards and commissions about which the Attorney General expresses concern are actual public offices and are not otherwise exempt from such a designation by statute or constitutional provision.

The service involved in this case is a noncompensable position. The oral argument of the Attorney General demonstrated the vagueness of any public power connected with it. The Attorney General noted that there was prestige and the opportunity to “rub elbows” with people of great notoriety in Kentucky. These are hardly qualifications for public office or any office.

The citations utilized by the Attorney General are not convincing. The three Kentucky cases noted with the intention to support the view that officials may not appoint themselves relate to appointments made by lesser authorities with powers that are limited by either the Constitution or the statutes. That is not the case here. The eases also deal with appointments to employment positions for which the appointee would receive compensation. Here the appointment involves noncompensable service. None of the authorities cited by the Attorney General relate to appointments to a position which is established and regulated by a rather comprehensive statute such as in this case. The statutes clearly send a message that the General Assembly could have easily prohibited self-appointment but did not do so. There is certainly nothing to prohibit the legislature from amending the statute if it believes that is appropriate.

The fear expressed by the Attorney General over a wholesale self-appointment system is unreal. The Governor cannot simultaneously hold any public office declared incompatible by either the statutes or the Constitution. The Governor cannot simultaneously hold any other elected office. The Governor cannot simultaneously hold any public office or employment, for which compensation would cause his total compensation to exceed the constitutional maximum. And of course the Governor cannot hold any office or position for which he does not meet the qualifications as required by the statutes or constitution.

Here the issuance of a temporary injunction by the circuit court was an abuse of discretion. The Attorney General did not support the burden necessary for the issuance of the extraordinary relief of a temporary injunction. There is considerable doubt as to whether the Attorney General can ultimately prevail on the merits of this case.

The circuit court’s injunction imposes on the exercise of the appointment power of the executive and is a judicially invented policy limitation which is not based on either the statutes or constitution. It is an abuse of discretion to infringe the powers specifically delegated to the executive or legislative branch of government under the constitution.

There has been no demonstration of any irreparable harm which will arise in the absence of the issuance of a temporary injunction.

If in fact Wilkinson does not have the right to sit as a member of the U.K. Board of Trustees, the legal proceeding pursuant to Civil Rule 81 heretofore available by Quo Warranto is a sufficient remedy. Injunction will not lie to restrain disqualified officers of a town from exercising the duties of their office because there is an adequate remedy at law by Quo Warranto. Hill v. Anderson, 122 Ky. 87, 90 S.W. 1071 (1906). In the absence of extraordinary circumstances, an officer should not be enjoined from the performance of the business of the public pending the outcome of an ouster proceeding. The mere fact that a contract is about to expire and new contracts may or will be made is not such an extraordinary circumstance. Cf. Commonwealth ex rel Breckinridge v. Winstead, Ky., 430 S.W.2d 647 (1968).

It is the opinion of this Court that the circuit court abused its discretion in granting a temporary injunction, and there is no extraordinary cause to disturb the decision of the Court of Appeals. The decision of the Court of Appeals dissolving the temporary injunction is affirmed and the order of this Court issued December 9, 1991 is reiterated.

COMBS, LAMBERT, REYNOLDS, SPAIN and WINTERSHEIMER, JJ., concur. STEPHENS, C.J., did not sit. LEIBSON, J., dissents by separate opinion.