Decide for yourself, Did Judge Ryan Get Anti Smoking Ruling Right?

LawReader – The Law Behind the News -Dec. 27, 2007-

  On Dec. 21st, Senior Judge Steve Ryan voided the entire Jefferson County Smoke Free Ordinance.  This law had previously been judicially reviewed, and only one section was voided.  The voided provision made an exemption for Churchill Downs.  That exemption was struck down as being in violation of the “equal protection? provisions of the Federal and State constitutions.  The Court of Appeals reviewed the ruling and upheld the first reviewing court.  The first court ruling left the balance of the ordinance in force.In that Court of Appeals review, Judge Tom Wine was quoted by Judge Ryan in his decision as stating:

“even if the exemption (for Churchill Downs) was found to be unconstitutional,? “the severability clause would, essentially, save the ordinance.?

Nevertheless Judge Ryan ignored the advice from the Court of Appeals and found grounds to void the entire ordinance.  This article discusses the laws applicable to the type of judicial review with which Judge Ryan was charged.

Judge Ryan begins his decision by crediting a 1940 case dealing with labor law as the basis for his decision:    “…pursuant to the tenets of Burrow v. Kapfhammer, 145 SW2d 1067(Ky. 1940) the Smoke Free Law must be stricken in its entirety.? Judge Ryan Dec. 21, 2007.Burrow v. Kapfhammer states:“   9. Statutes. — Generally, if it is manifestly apparent that a statute would not have been enacted with its unconstitutional provisions deleted, because invalid, entire statute is stricken down by a decision holding that part of statute is invalid, but if court concludes otherwise, only the invalid portion becomes annulled, with remaining portions being untouched by decision, and such rule prevails although statute contains a separable clause stating that if any part of statute is held invalid it is intention of Legislature that remaining portion shall stand.

  10. Statutes. — When a separable clause is contained in a statute which is attacked as invalid, the clause will be given some force, especially where statute is one dealing with subject of labor.

  11. Statutes. — The invalidity of Section 17 of the statute relating to employer-employee relations as applied to the operator of a restaurant does not render remainder of statute void, since it cannot be said that Legislature would not have enacted remainder of statute without such section (Acts 1940, c. 105, art. 1, sec. 17).

  15. Statutes. — If a statute is rendered void because of unauthorized discrimination with respect to exemptions from its operation, statute cannot be applied to either the one discriminated against or to the exempted one.?

    We review this ruling by first noting that the Kentucky legislature adopted legislation two years after the Burrow ruling which sets out statutory construction rules regarding severability of unconstitutional provisions of laws.  See KRS 446.090 (below) which was adopted in l942. This statute appears to negate the reasoning followed in Burrow.  We also raise an eyebrow over the use of a 67 year old case which had issues unique to labor law.

We note that the Ky. Compiler of Statutes wrote the legislative history to KRS 446.090 as follows:
“History: Created 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, to obviate the necessity of attaching a severability clause to each Act as it is passed.”


While, Judge Ryan noted that the Anti Smoking ordinance contained a severability clause, he gave no weight to that clause.

The Smoke Free Ordinance stated as Section 90.98 as follows:

“If any provision, clause, sentence or paragraph of this chapter or the application thereof to any person or circumstances shall be held invalid, that invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provision of this chapter are declared to be severable.?


Ryan’s decision also mentions but ignores an intervening ruling of the Ky. Court of Appeals which upheld the severability clause of this ordinance.  Judge Ryan disposes of these issues by saying: “Metro’s (the Metro Government) arguments are certainly not without merit; however , its emphasis on the validity of the severability clauses completely ignores an established area of case law specifically addressing how Courts are to deal with partially invalid statutes or ordinances, case law which, incidentally, is mentioned nowhere in the Court of Appeals’ aforementioned Orders. The Coalition (plaintiffs herein)  relies heavily on the holding of Burrow v. Kapfhammer (citation given) …?

“metro attempts to question the validity of the Burrow holding, contending it was superseded by the passage of KRS 446.090 in l942 and arguing it has never been cited in Kentucky for the proposition the Coalition attempts to make in the case at bar. “

     The language of KRS 446.090 is very clear that the legislative intent on the issue of severability is to be given weight.  The law states:“It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise..?

That clearly means that unless the legislative body writing the law declares that any severance voids the entire act, then only the severed portions are to be voided, and the remaining provisions are to remain in full force and effect.  The Metro ordinance clearly included a provision that said it was the intent of the Metro Council that any severed provision would not sever or void any other provision of the ordinance.  The result is that Judge Ryan did not give any weight to the legislative intent spelled out in the actual language of the ordinance regarding severability. Instead he bases his ruling on the “apparent? political intent of the various members of the Metro Council.

Judge Ryan stated:

“That being the case, the Court turns to the record to determine whether the Metro Council’s passage of the Smoke Free Law was dependent upon Churchill Downs’ exemption from its terms, i.e. whether the ordinance would have passed without the exemption to Churchill Downs.? (emphasis added)

Judge Ryan cites “the record? for his opinion about the political motivation of the Metro Council.  We suggest that a review of the political motivation of the legislative body is not the type legislative intent permitted to be considered by the reviewing court.

This ruling brings to mind the old advice that “one should never watch how a law or a sausage are made.? In this instance Judge Ryan did review how the law was made and even refers to “the minutes of the Metro Council meeting held on Oct. 12, 2006?.

It is a general rule of law in this state (which is clearly codified in KRS 446.090), that one provision of a statute may be unconstitutional and the remaining provisions may be upheld and remain in force.

If that rule of construction had been followed, then the Jefferson Metro Council’s anti-smoking ordinance would remain in effect, even though the exemption for Churchill Downs would have remained stricken.

Further, Judge Ryan emphasized that he relied on a determination of what the intent of the Metro Council was.  He wrote in his decision said:

“… it is manifestly apparent the Metro Council was so determined to exempt Churchill Downs from the smoking ban that it would not have passed the ordinance without the exemption,”

“Moreover … it is apparent that the council would not have enacted the remaining parts without the exemption.”

This language suggests that Judge Ryan based his judicial review on a personal evaluation of the political intent of the Council members. Judge Ryan appears to reason, that the ordinance needed the exemption in order to garner enough votes to pass and therefore without the exemption favoring Churchill Downs, that the majority of the Metro Council would not have adopted the ordinance.

He may or may not be correct in this conclusion about the political intent of the Metro Council.  However, any judicial review should look only to the actual wording of the statute itself except in very rare situations such as “where the law is of doubtful meaning?. Reviewing Judges usually leave speculation about the motivations of the individual council members to historians and law professors.

 It is difficult enough sometimes to make sense out of a piece of legislation in just trying to understand the language used. While there is a place for the use of “legislative intent?, the application of that doctrine has been strictly limited, and even when used applies to interpretation of the wording of the statute and does not concern the political motivations of the lawmakers.  In l990 the Sup. Ct. limited the use of legislative intent in the interpretation of a statute:

See: Overnite Transportation Co. v. Gaddis, Ky. App., 793 S.W.2d 129, 131 (1990

“Only where the language is of doubtful meaning or where an adherence to the letter of it would lead to absurdity can we consider extraneous evidence of legislative intent.?    Adding to the courts judicial review role the additional duty or right to explore the political motivations of the legislators would open every piece of legislation to the wildest speculation about the lawmakers intent.  Our reading of KRS 446.090, suggests that the proper judicial review should focus on whether the “remaining parts are essentially and inseparably connected with and dependent upon the unconstitutional part…?  That means, the relevant portions of the statute are to be reviewed, and not the political motivations of the council members.

The correct procedure for a judicial review of a statute or ordinance is to ignore the portion that is unconstitutional, and then read the remaining part and see if it makes sense.  In this case, the unconstitutional part was an exemption from the act.  Remove the exemption and no violence is done to the logic or reasoning of the original act which prohibits smoking in certain public places.  Judge Wine in his Court of Appeals decision clearly recognized such a reasoning.

No court has yet ruled that it was an anti-smoking ordinance is itself unconstitutional.  The portion of the anti-smoking ordinance remaining after the first judge struck down the exemption is clearly not “dependent upon the unconstitutional part?.  Leave out the exemption and the body and meaning of the original act is left entirely intact. There is no violence done to the scheme for interpretation of the remaining portions of the act.

Statutory construction rules have been frequently discussed by the courts.

See: LWD Equipment, Inc. v. Revenue Cabinet, Commonwealth, 136 S.W.3d 472 (Ky. 06/17/2004)  “KRS 446.080 provides in pertinent part:  (1) All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature,?     In reading KRS 446.090 we are talking about the law that is to be applied in the interpretation of a statute. This statute was adopted after the Burrow decision. The intent of this legislation was to set out the rules in this state for dealing with the interpretation of statutes.  Therefore, the reviewing court is supposed to carry out the intent of the legislature and to enforce these rules.Judge Ryan argues in effect that the legislature can be ignored when he suggests the Ct. of Appeals has never specifically overruled Burrow.   Legislative acts virtually never mention the case ruling they eviscerate.  That does not mean that the legislative act has no force. (Otherwise the Courts could simply ignore any legislative act until they chose to give there judicial permission.)

Judge Ryan argues that the statute supports his theory of the law, but we must respectfully reach an opposite conclusion. The clear language of KRS 446.090 supports the practice upholding the constitutional portions of statutes. Even Burrow, the case he cites,  acknowledges that in general “only the invalid portion becomes annulled, with remaining portions being untouched by decision…?.

   Reviewing courts are not permitted to base their decision on the intent of the law makers unless the words of the statute are so doubtful as to their meaning that one must resort to the review of intent to see what they were talking about. Judge Ryan uses his interpretation of “legislative intent? as a main basis for finding the entire ordinance unconstitutional.  He has not demonstrated any unclear or doubtful language in the ordinance which cannot be understand by the plain and simple language of the statute.  Without these issues being found in a statute, then a judge is limited by  court rulings in having the standing to then proceed to raise an issue of “legislative intent?.

We have found no rule of law which says that if the language of the statute or ordinance is clear and understandable, that the reviewing court can take another step and consider the legislative intent.

Judge Ryan bases his ruling on the “intent? of the Metro Council.  We suggest that the only intent of the Metro Council he was empowered to consider was their adoption of Section 90.98, where by a majority vote of the Metro Council they adopted a clause which specifically said the law was to be upheld even it a provision of the law was struck down.  The procedure where he reviewed the minutes and made an evaluation of proposed floor amendments to the ordinance are novel and unprecedented by a reviewing court.

Decide for yourself.  Did Judge Ryan get it right?   Please e-mail your comments to  

Jefferson County Attorney Irv Maze has scheduled a hearing before Judge Ryan on Jan. 2nd. to ask him to delay the enforcement of his Dec. 21st. ruling while the matter is appealed.   Meanwhile, the Metro Council is well on its way of simply adopting a new ordinance which has the troubled Churchill Downs exemption stripped out.  AUTHORITIES:

There is a long history of appellate review of provisions of laws that were held unconstitutional and the remaining parts of the act where upheld.  See:  Democratic Party of Kentucky v. Graham, 976 S.W.2d 423 (KY, 1998) Finally, we must determine what portions of the statutes in question are severable so that the valid portions may be saved and the invalid portions stricken. “It is a fundamental principle that a statute may be valid in one part and invalid in another part, and if the invalid part is severable from the rest, the part which is valid may be sustained.” Burns v. Shepherd, Ky., 264 S.W.2d 685 (1953) (citing State Bd. of Election Commissioners v. Coleman, 235 Ky. 24, 29 S.W.2d 619 (1930)).

Dawson v. Com., Dept. of Transp., Bureau of Highways, 622 S.W.2d 212 (Ky., 1981)

  For fear that there may be some question as to the validity and enforceability of the remaining portions of the Act after placing the ax to a portion of it, see KRS 446.090.

Kentucky Municipal League v. Commonwealth of Kentucky, Department of Labor, Ky., 530 S.W.2d 198 (1975), we said:          ”It is a well-established rule that portions of a statute which are constitutional may be upheld while other portions are eliminated as unconstitutional. * * *

Also see: Karst-Robbins Coal Co., Inc. v. Arch of Kentucky, Inc., 964 S.W.2d 419 (Ky. App., 1997)   November 14, 1997  -  As noted by Arch, the Supreme Court specifically indicated in Akers that it was declaring KRS 381.940 unconstitutional, but not the remaining statutes dealing with the same subject matter. See KRS 381.930, KRS 381.935, and KRS 381.945. Moreover, the court subsequently noted in Ward that Akers had declared only a “portion” of KRS 381.940 to be unconstitutional.Commonwealth v. Plowman, 86 S.W.3d 47 (Ky. 09/26/2002) An unambiguous statute is to be applied without resort to any outside aids. Delta Air Lines. Inc. v. Commonwealth, Revenue Cabinet, Ky., 689 S.W.2d 14 (1985).

Gatewav Construction Co. v. Wailbaum, Ky., 356 S.W.2d 247 (1962). This Court has repeatedly held that statutes must be given a literal interpretation unless they are ambiguous and if the words are not ambiguous, no statutory construction is required.

KRS 446.090 Severability.
It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.
Effective: October 1, 1942

History: Created 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, to obviate the necessity of attaching a severability clause to each Act as it is passed. 

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