Request By:
Senator Gus Sheehan, Jr.
Chairman
Senate Committee on Elections
and Constitutional Amendments
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of January 27, in which you request an opinion concerning the following related facts and question:
"The following language appears in Section 256 of the Kentucky Constitution:
'then such proposed amendment or amendments shall be submitted to the voters of the State for their ratification or rejection at the next general election for members of the House of Reprsentatives. . .'
Since the next election for representatives will take place in November of 1984, proposed amendments from both the 1982 and the 1984 General Assemblies will appear on the ballot in 1984.
The Senate Committee on Elections and Constitutional Amendments would like to know which proposed amendments would appear on the ballot in 1984 if four amendments are agreed to by the 1982 General Assembly, and four additional amendments are agreed to by the 1984 General Assembly."
Section 256 of the Constitution requires all proposed amendments to the Constitution to be presented to the voters for ratification or rejection at the next regular election for members of the House of Representatives. This constitutional requirement is mandatory, as held in
Harrod v. Hatcher, 281 Ky. 712, 137 S.W.2d 405 (1940). Section 256 also limits the number of proposed amendments that may be voted upon at any one time to four. This limitation is likewise mandatory.
As you point out, the next regular election for members of the House is in November, 1984 [OAG 81-424], which means that there will be two rather than one intervening regular sessions of the General Assembly before the 1984 general election.
In response to your question concerning what happens if each session proposes four amendments, it is obvious that pursuant to Section 256 of the Constitution, only four amendments can be presented to the voters at the November 1984 election, irrespective of the number enacted at the two intervening sessions. This being so, it is also obvious that the simple solution to this dilemma would be that no more than a total of four amendments be enacted between the two sessions. On the other hand, if for some reason each session enacts four amendments for a total of eight, or between them more than four, we are of the opinion that only the first four proposals enacted can be placed on the 1984 ballot. Thus, when the General Assembly has proposed four amendments, irrespective of whether or not it reaches this number during the 1982 session or the 1984 session, it has exhausted its constitutional authority to propose any additional amendments until the four have been submitted to the voters in accordance with Section 256.
The above conclusion is based to a degree on the fact that the General Assembly, when it proposed amendments to the Constitution, is not, strictly speaking, acting in its normal legislative capacity, but, on the other hand, is acting as a special organ of government for the purpose of allowing the people to vote on a constitutional amendment. See
Gatewood v. Matthews, Ky., 403 S.W.2d 716 (1966). In addition, it should be pointed out that once a proposed amendment is enacted by the General Assembly, it is not subject to the approval or disapproval of the Governor nor is it subject to subsequent revision by the General Assembly prior to its being presented to the electorate, though there is some authority to the effect that a proposed amendment may be reconsidered for further consideration while the legislature enacting it is still in session. See Storrs v. Heck, 190 S. 78, 238 Ala. 196;
Clements v. Powell, 155 Ga. 278, 116 S.E. 624; State v. Upper St. Johns Nav. Dist., 135 S. 784, 102 Fla. 183.
Although we find no Kentucky cases construing Section 256 of the Constitution with respect to your question, there is an Arkansas case that appears to be in point and supports our conclusion, namely,
Grant v. Hardage, Ark., 153 S.W. 826, 106 Ark. 506 (1913), from which we quote the following:
"The Court in effect held that the first three amendments that were proposed, whether by the legislature or the people, or by both, should be submitted, and that, when three amendments were submitted, the power to submit amendments was exhausted until after the next election at which these amendments were to be voted upon. The action of the Secretary of State in submitting more than three amendments could not invalidate all of them.
The Court will take judicial notice of the records of the office of the Secretary of State, and of the journals of the Senate and House of Representatives, and can thus ascertain which three amendments were first proposed. The first three amendments were proposed in the manner provided by the Constitution, and as we have already held, were all that could be legally submitted at one election. "
As we initially concluded, only the first four proposed constitutional amendments enacted by the General Assembly, beginning with the 1982 session, can be placed on the 1984 general election ballot. Thus, if the 1982 session proposes four amendments, the 1984 session is precluded from enacting any.