Request By:
Hon. Jeff Mackin
Assistant Attorney General
Special Prosecutions Division
909 Leawood Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
You have requested an opinion on the constitutionality of KRS 119.025. That statute pertains to wrongful registration and states, as follows:
"(1) In the case of registration outside of cities of the first class, any person who knowingly or fraudulently causes himself to be registered in more than one (1) precinct, or in a precinct other than the one in which he is a legal voter, or who registers under any name other than his real name, or who gives a false address, or who in any manner causes himself to be registered when he is not legally entitled to register, or who knowingly or fraudulently aids, abets, counsels or advises in the commission of any such act, shall be imprisoned in the penitentiary for no less than one (1) year nor more than three (3) years.
(2) In the case of registration in cities of the first class, any person who knowingly causes himself to be registered in more than one (1) precinct, or to be registered more than once, or to be registered when he is not entitled to register, or who makes a false oath as to his ability to read or write, or who aids or abets in the commission of any such act, shall be fined not less than two hundred dollars ($ 200) nor more than one thousand dollars ($ 1,000), or imprisoned in the penitentiary for not less than one (1) year nor more than five (5) years, or both."
Comparing the provisions of the two subsections, it is clear that there are substantial differences. Outside cities of the first class, the following are illegal:
(1) Knowingly or fraudulently registering in more than one precinct,
(2) Knowingly or fraudulently registering in a precinct where one is not a legal voter,
(3) registering under a name other than one's real name,
(4) giving a false address,
(5) in any manner causing oneself to be registered when one is not legally entitled to register,
(6) knowingly or fraudulently aiding, abetting, counseling or advising someone else to commit one of the above acts.
In first class cities, the following are illegal:
(1) knowingly registering in more than one precinct,
(2) knowingly registering more than once,
(3) knowingly registering when one is not entitled to register,
(4) making a false oath as to one's ability to read or write,
(5) aiding or abetting someone else to commit one of the above acts.
Furthermore, the penalty for violations of the statute outside cities of the first class is one to three years in the penitentiary. The penalty for violations of the statute in cities of the first class is either a fine of $ 200-$ 1000 or one to five years in the penitentiary.
Clearly, it can be seen that not only are there different illegal acts in the two subsections, but those acts which sound similar have significant differences in language. For example, outside cities of the first class, it is illegal to knowingly or fraudulently register in more than one precinct. But in cities of the first class it is only illegal to knowingly register in more than one precinct.
Section 59 of the Kentucky Constitution, particularly the Fourth and Twenty-Ninth subsections, prohibits special legislation. The purpose of sections 59 and 60 (which also prohibit special legislation) is to require that all laws upon a subject shall operate alike upon all individuals.
Jefferson County Police Merit Board v. Bilyeu, Ky., 634 S.W.2d 414 (1982).
The Court has held that a classification based on classes of cities cannot be upheld unless it pertains to the organization or government of the classified cities or unless the classification has a reasonable relation to the purpose of the statute.
Miles v. Shauntee, Ky., 664 S.W.2d 512 (1983). The Court has also held that where a statute establishes a classification, such classification must be made upon a reasonable and natural distinction which relates logically to the statute.
Kling v. Geary, Ky., 667 S.W.2d 379 (1984).
We can discern no reasonable, natural or logical basis for the classification contained in KRS 119.025. The various substantive provisions of the two subsections would apply equally in all cities and counties. We can find no basis for holding that certain substantive acts or a particular penalty should be unique to cities of the first class.
Miles v. Shauntee, supra.
KRS 446.090 states in part:
"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 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. "
In
City of Pineville v. Farrow, Ky., 273 S.W.2d 56, 58 (1954), the Court stated:
"It is a fundamental principle that a legislative act may be constitutional in one part and unconstitutional in another part, and if the invalid part is reasonably severable or divisible from the rest, the part which is constitutional may stand. This, however, is subject to the corollary that it may be presumed the Legislature would have enacted the separated valid portion of the act."
In
Metcalf v. Howard, 304 Ky. 498, 201 S.W.2d 197 (1947), the Court held that where the legislature would not have enacted a statute without a particular part, the unconstitutionality of that part makes the entire act unconstitutional. Furthermore, in
Kentucky Municipal League v. Commonwealth of Kentucky, Department of Labor, Ky., 530 S.W.2d 198 (1975), the Court held that KRS 446.090 referred to the severability of the various subjects within a statute.
Based on these principles of law, it is our opinion that KRS 119.025 is not amenable to severability because the provisions are too intertwined. It is impossible to determine the intent of the legislature if one or the other of the two subsections are deemed to be unconstitutional. Consequently, the entire statute is unconstitutional.