May 26, 1995
Subject: Constitutionality of Legislation Requiring Insurers to Make Medical Professional Liability Insurance Available to Charitable Health Care Facilities, and Persons Volunteering to Perform Medical Services at those Facilities, Unless They are Otherwise Covered, and Imposing, on Physicians and Attorneys Licensed in Kentucky, an Annual Fee of $1 to be Used to Pay Premiums for Such Insurance.
Written by: Gerard Gerhard
Requested by: Bruce K. Davis, Esq., Executive Director, Kentucky Bar Association
Syllabus: I. House Bill 36 of the 1994 Regular Session of the Kentucky General Assembly is unconstitutional:
A. It is violative of � 51 of the Constitution of Kentucky because the subject of the bill is not expressed in its title.
B. It is violative of � 59(15) of Kentucky's Constitution, as special legislation, in that there is no rational basis for the singling out of physicians and attorneys to pay for medical malpractice insurance for charitable health care facilities and certain of those volunteering at such facilities.
C. It is unconstitutional as arbitrary legislation violative of �� 2 and 171 of Kentucky's Constitution.
II. House Bill 36 is not violative of � 116 of Kentucky's Constitution, which provides that the Supreme Court shall govern admission and discipline of members of the bar.
OAGs cited: None
Constitutional provisions construed: �� 2; 51; 59(15); 116; 171
Statutes construed: KRS 21A.140; 42.700; 311.610
OPINION OF THE ATTORNEY GENERAL
The following question, in substance, has been presented:
Is House Bill 36, enacted during the 1994 Regular Session of the Kentucky General Assembly, constitutional?
House Bill 36 (Acts, 1994, ch. 87 sec. 1, now codified as KRS 42.700, 21A.140, and 311.610), is entitled "AN ACT relating to the provision of medical and related care and treatment."
House Bill 36 (copy attached) has two "main" features. The first requires insurers offering medical professional liability insurance in Kentucky, to make such insurance available to charitable health care facilities, and to persons volunteering to perform medical services at those facilities. The second, imposes, upon all physicians and attorneys licensed in Kentucky, an annual "fee" of one dollar ($1), to be used to pay premiums for professional liability insurance for "charitable health care facilities," as defined by the legislation, and persons volunteering to perform medical services for such facilities, if they are not otherwise covered by such insurance.
I. House Bill 36 is Violative of � 51 of the Constitution of Kentucky Because the Subject of the Bill is not Expressed in its Title
� 51 of the Constitution of Kentucky
� 51 of the Kentucky Constitution is the subject-title provision. It commands, in part pertinent here:
No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title . . . .
House Bill 36 is entitled "AN ACT relating to the provision of medical and related care and treatment."
As indicated above, and reiterated here for clarity in discussing � 51 of the Constitution of Kentucky, House Bill 36 has two main purposes. (1) It requires insurers offering medical professional liability insurance in Kentucky to make such insurance available to "charitable health care facilities" and persons volunteering to perform medical services at those facilities. (2) The bill imposes, upon physicians and attorneys licensed in the Commonwealth, an annual "fee" of $1 to be used to pay the premiums for medical professional liability insurance for charitable health care facilities and certain of their volunteers, if they are not already covered by such insurance.
The Standards of Compliance with � 51: "Clue" or "Sufficiently Related"
We recognize that it has long been judicially observed that � 51 of Kentucky's Constitution has been liberally construed, with all doubts being resolved in favor of the validity of legislative action. See, for example, Bowman v. Hamlett, 159 Ky. 184, 166 S.W. 1008, 1009 (1914). It has been said that if the title of a bill furnishes a "clue" to an act's contents, it passes constitutional muster. See Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244 (1935), and, Com. Ex Rel. Armstrong v. Collins, Ky., 709 S.W.2d 437, (1986).
In Sweasy v. King's Daughters Mem. Hosp., Ky., 771 S.W.2d 812, 815 (1989), however, the Court observed, regarding the "liberal construction" and "clue" language of Armstrong (above), that:
Nevertheless, as Justice Vance cautioned in his Dissent:
'[T]he purposes which impelled the framers of the constitution to place the limitations imposed upon the General Assembly by Section 51 of the Constitution were inherently sound and ought not to be eroded to the vanishing point by judicial interpretation.' Id. at 450.
The Court in Sweasy also quoted Justice Palmore's observation in McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977):
'� 51 . . . is not a lifeless anachronism, and there are wholesome limits to what can be loaded into one bill. We have only to ponder the incredible morass in Washington D.C. [where there is not similar subject-title constitutional protection]. . . . Happily, our Constitution does not permit it.' 507 S.W.2d at 407.
In McGuffey (above) the Court indicated that the subject matter of the section of legislation there in issue was not "sufficiently related" to the title of the legislation at issue to "satisfy Const. � 51." Id., 407.
For the reasons which follow, we conclude that whether one uses the "clue" standard (Talbott, Armstrong, above), or the "sufficiently related" standard (McGuffey, above), House Bill 36 does not meet the requirement of � 51 of the Constitution of Kentucky that the subject of a bill be expressed in its title.
Purpose of � 51 of the Constitution of Kentucky
Proper application of the "standards" as indicated above requires an understanding of the purpose of � 51 of Kentucky's Constitution. In Bowman (above), Kentucky's then highest court indicated:
The purpose of this constitutional provision is the prevention of surreptitious legislation; as said in Cooley on Constitutional Limitations: To prevent surprise or fraud upon the Legislature by means of provisions in bills, of which the titles gave no intimation, and which might, therefore, be overlooked and carelessly or unintentionally adopted.
(Id., 1009, emphasis added.)
A similar view regarding the purpose of � 51, was articulated in Armstrong (Id., 443).
In 1A Sutherland, Statutory Construction (5th Ed.), � 17.01, it is observed:
The purpose of the title requirements is to provide an easier means for concerned parties to find out what a bill or act is about without reading it in full.
Application of the "Clue Standard"
Does the title of House Bill 36 provide a "clue" (Armstrong, Bowman, above) to the subject of the bill? In our view the answer is clearly no.
House Bill 36 is entitled "AN ACT relating to the provision of medical and related care and treatment." The "subject," of House Bill 36, in any reasonable or legally significant sense is, (1) the provision of medical professional liability insurance for charitable health care facilities and certain of their volunteers, and (2) the imposition of a "fee" on a specific grouping or "classification" of taxpayers, the proceeds of which are to be used to pay the premiums for such insurance. That subject is not expressed in the title of House Bill 36, nor is there a "clue" in the bill's title intimating what it is about.
Com., Revenue Cabinet v. Smith, Ky., 875 S.W.2d 873, (1994), cert. denied __U.S.__ , 115 S.Ct. 509 (11/14/94) (known to some as the "Provider Tax Case"), involved the legislature's designation of a particular grouping or "classification" of taxpayers to pay a tax. The Court, in analyzing whether the title of the bill under scrutiny in that case met the requirements of � 51, said:
We suggest that a party reading the title to House Bill 1 might conclude that a tax was being imposed to finance health care as it stated '. . . providing for revenue to finance health care . . . .'
(Id., 878, emphasis added.)
There is no language in the title of House Bill 36, comparable to that discussed above in Smith (above), from which one might conclude that the bill imposed a tax upon physicians and attorneys to finance medical malpractice insurance for charitable health care facilities and certain of their volunteers.
"Sufficiently Related" Standard
While Talbott and Armstrong (above) instruct that the title of legislation passes constitutional muster if it provides a "clue" to an act's contents, McGuffey and Sweasy (above) indicate, in substance, that the subject matter of a bill must be "sufficiently related" to the title that it can be said that � 51 is satisfied.
McGuffey involved a bill entitled "AN ACT relating to health care malpractice insurance and claims." � 9 of the bill pertained to peer review matters. The Court said:
We are of the opinion that the subject matter of � 9 of the Act is not sufficiently related to malpractice claims or insurance to satisfy Const. � 51. See Stovall v. Cook, Ky., 512 S.W.2d 487 (1974).
(Id., 407, emphasis added.)
In our view the subject matter of House Bill 36 is not sufficiently related to the title of the bill to pass muster under � 51 of Kentucky's Constitution.
While the title of House Bill 36 indicates that it relates to the provision of health care and related treatment, the subject of House Bill 36 is the provision of medical malpractice insurance, and the imposition of a tax to pay for it. Although the provision of medical professional liability insurance for charitable health care facilities and certain of their volunteers, and the imposition of a fee upon physicians and attorneys to pay for it, may indirectly "affect" the provision of medical and related care and treatment, the two topics are not "sufficiently related" to enable a proper finding that the requirements of � 51 are met.
In Com. Ex Rel. Armstrong v. Collins, Ky., 709 S.W.2d 437, 443 (1986), the Court indicated:
The purpose of the section [Section 51 of the Constitution of Kentucky] is said to be to prevent the enactment of 'surreptitious' legislation. Bowman v. Hamlett, 159 Ky. 184, 166 S.W. 1008 (1914); Dawson v. Commonwealth, Department of Transportation, Ky., 622 S.W.2d 212 (1981). The framers of the Constitution intended to prevent surprise and fraud upon the members of the General Assembly and other interested parties . . . .
House Bill 36 is "surreptitious legislation" in the sense that its title does not give any intimation of its subject. Its surreptitiousness was exacerbated by its evolution in the course of the legislative process.
In the form of its introduction on the first day of the 1994 regular session of the General Assembly, House Bill 36 was a bill to declare certain medical care providers to be exempt from civil liability, except in the case of "an act or omission which constitutes willful and wanton misconduct," in the rendering of medical services voluntarily and without compensation, or the expectation thereof, to a patient of a medical facility organized in whole or in part to deliver health care services without charge.
Via the mechanism of a "committee substitute" in the House, House Bill 36, as initially passed by the House and reported to the Senate, and without any change in its title, became a bill to entitle charitable health care facilities to receive medical negligence insurance, and to establish an "assigned claims plan."
On February 24, 1994, in the Senate Banking and Insurance Committee, yet another "committee substitute," still under the original title of the bill, appeared. This one contained substantially the language that was ultimately enacted. The Senate Committee Substitute required certain insurers to make medical professional liability insurance available to charitable health care facilities, and those volunteering to provide medical services at such facilities, and imposed an annual fee of one dollar ($1) on physicians and attorneys to pay the cost of premiums for such insurance, for those facilities and volunteers not otherwise covered by such insurance. On March 4, 1994, the Senate Committee Substitute, together with a floor amendment making a technical change, passed the Senate. The House concurred with the Senate Committee Substitute and floor amendment on March 9, 1994, by a vote of 90 to 2. The bill was signed by the Governor on March 21, 1994.
In Smith (above), the Court indicated, in analyzing the challenge to the constitutionality of the "provider tax bill" there in issue:
This argument concerning misinformation or misunderstanding is without merit due to the fact that the appellees were also in attendance during the hearing and the special legislative session. Their presence, coupled with high media visibility and debates, makes it hard to conclude that this legislation comports with the intent of the constitutional framers to invalidate the statute on the ground that its title is not sufficiently descriptive.
(Id., 878, emphasis added.)
In contrast to the reasoning of the Court in Smith (above): (1) Few of those taxed by House Bill 36 were in attendance at the Senate Banking Insurance Committee meeting when the Committee reviewed and adopted the Senate Committee Substitute, (2) discussions with individuals familiar with the evolution of House Bill 36 indicated that it did not have "high media visibility," and (3) review of an audio recording of that portion of the February 24, 1994, Senate Banking Insurance Committee Meeting during which the Senate Committee Substitute was introduced (see attached transcript) revealed no "debate" concerning the measure.
The title "AN ACT relating to the provision of medical and related care and treatment" serves to actively conceal the actual subject of the legislation. The title of the bill gives the impression that it directly involves the literal rendering, as to a patient, of medical care and related treatment. The title provides no intimation that its subject is that of mandating insurers to provide liability insurance to charitable health care facilities, and the imposition of a "fee" upon physicians and attorneys to pay for its cost.
In our view the broad title of House Bill 36, providing no "clue" to its subject, and having no sufficient relation to its subject, rendered the measure "surreptitious," in contravention of the purpose of � 51 of Kentucky's Constitution. The "surreptitiousness" of the measure was made more so when the subject of the bill was radically altered in the waning days of the session, leaving a very limited opportunity for those affected by the measure to become aware of the content of the measure, and to have an opportunity to make their views known.
While certain lobbyists representing some physicians or attorney groups might have been present at the Senate Banking Insurance Committee when the Committee's substitute for House Bill 36 was considered and approved, such presence simply cannot be reasonably said to cure the surreptitiousness of HB 36, as evidenced by the obscurity of its title by comparison to the actual subject matter of the measure, and the evolution of the bill into a tax measure without debate by the mechanism of a committee substitute under the particular facts related to House Bill 36.
The title of House Bill 36 serves more to conceal than to reveal the nature of the act. Tabler v. Wallace, Ky., 704 S.W. 2d 179, 184 (1986).
House Bill 36, for the reasons indicated, is unconstitutional as violative of � 51 of the Constitution of Kentucky.
II. House Bill 36 is Arbitrary and Special Legislation authorizing the levy, assessment, or collection of a tax in violation of � 59(15) of the Constitution of Kentucky
� 59 of the Constitution of Kentucky, in part pertinent here, provides:
The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely:
* * *
Fifteenth: To authorize or to regulate the levy, the assessment or the collection of taxes . . . .
The "fee" imposed by House Bill 36, upon physicians and attorneys licensed in the Commonwealth, is, from a legal perspective, a "tax." This is so because the "fee" involved is a financial charge imposed upon individuals by legislative authority, as distinguished from a "voluntary" payment for governmental services. See, for example, the definitions of "fee" and "tax" in Black's Law Dictionary, 5th Ed., West Pub. Co., 1979. As a "tax," the "fee" imposed by House Bill 36 falls within the purview of � 59(15) of Kentucky's Constitution (above).
We recognize, of course, as pointed out in Smith (above), that:
. . . [I]n taxation, more so than in other fields, . . . legislative bodies possess the greatest of freedom in classification. Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L. Ed. 590 (1940). Courts, under a rational basis review, accept the legislature's generalizations even when there is an imperfect fit between the means and the ends. Heller v. Doe by Doe, -- U.S. --, 113 S.Ct. 2637, 125 L.Ed. 2d 357 (1993). Further, in a taxation case, unless a rational basis for such law can be completely refuted, then the law may stand as constitutional.
Still, as recognized in Smith:
Section 59(15) of the Kentucky Constitution prohibits 'local or special acts' which are 'to authorize or regulate the levy, the assessment or the collection of taxes . . . .' The primary purpose of Section 59 and the 29 subsections is the protection of Kentucky's citizenry from special interest groups. Tabler v. Wallace, Ky., 704 S.W.2d 179 (1985), cert. denied, 479 U.S. 822, 107 S.Ct. 89, 93 L.Ed.2d 41 (1986) Reasons of a positive nature are necessary for justifying the legislation.
(Id., 876, emphasis added.)
We cannot discern or conceive a legally rational basis, or reasons of a positive nature, to support the legislature's singling out or "classification" of "physicians and attorneys licensed in the Commonwealth" as the grouping of taxpayers, as distinguished from the people as a whole, to pay the cost of medical professional liability insurance premiums for charitable health care facilities and those volunteering to perform medical services for such facilities if they are not otherwise covered by such insurance.
In Smith (above), the Court observed regarding the classification of physicians to pay a tax on their services to obtain federal matching funds to support the State's medical assistance program, that:
. . . [T]he Kentucky statute was designed to meet the federal statute which provides and enumerates the specific requirements as to the class of health care providers that may be taxed in order to qualify for matching funds. . . .
* * *
. . . [D]efining the class in a coextensive manner with the federal law results in a rational basis for such classification with- out arbitrariness.
Unlike the circumstance of the "provider tax" legislation in Smith, the taxpayer classification in House Bill 36 is not responsive to, or based upon, a federally defined class (42 U.S.C. � 1396b), so as to have a rational basis, or be defined as a "general law" for that reason.
Further, the tax imposed by House Bill 36 is not used to enhance a fund from which, as it was said in Smith:
The providers of health care may receive immediate and direct results of a fund that pays their charges/fees for treatment of the indigent.
The Court in Smith indicated that:
Supportive of a class legislation is the public purpose of indigent care which forms a reasonable basis for levying a tax on such classes enumerated by the federal government.
(Id., 877, emphasis added.)
Again, the classification of taxpayers in House Bill 36 is not based upon a classification defined by federal law, or in the words of Smith, above, "classes enumerated by the federal government." It follows that the public purpose of indigent care, in and of itself, will not serve as a rational basis for an otherwise arbitrary classification.
The provision of medical care for the indigent is hopefully a concern, and thus the burden, of all the people. There is no rational basis for singling out physicians and attorneys licensed in the Commonwealth to pay for medical professional liability insurance for charitable health care facilities and certain of their volunteers.
"Special law" was defined in City of Louisville v. Klusmeyer, Ky., 324 S.W.2d 831, 834 (1959) in the following terms:
[T]he term 'special law' is legislation which arbitrarily or beyond reasonable justification discriminates against some persons or objects and favors others.
House Bill 36, is a "special law" within the meaning of � 59(15) of Kentucky's Constitution because it arbitrarily and beyond reasonable justification discriminates against "physicians and attorneys licensed in Kentucky," and favors "charitable health care facilities and persons who volunteer to perform medical services for such facilities." House Bill 36 is, therefore, violative of � 59(15) of the Constitution of Kentucky.
III. House Bill 36 is Arbitrary and Thus Violative of �� 2 and 171 of the Constitution of Kentucky In Imposing, Upon a Designated Group of Citizens, a Tax to Pay For Medical Professional Liability Insurance for Charitable Health Care Facilities and Certain of Their Volunteers
� 2 of the Constitution of Kentucky provides:
Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.
Closely related to the prohibition of arbitrary power found in � 2 is the "uniformity requirement" of � 171. City of Lexington v. Motel Developers, Inc., Ky., 465 S.W.2d 253, 257, (1971). In Motel Developers, the Court observed:
. . . [D]iscrimination which does not have a reasonable basis is obviously arbitrary and violates the principle of equality and uniformity set forth in section 171.
House Bill 36 directs that physicians and attorneys licensed in Kentucky shall pay a fee to be used to purchase medical professional liability insurance for charitable health care facilities and certain of their volunteers. We cannot discern or conceive of any reasonable basis for the legislature's selection of just these two occupations to pay the tax in question.
A review of the dialogue during the Senate Banking and Insurance Committee meeting on Feb. 24, 1994 (see accompanying transcript) did not reveal a reasonable basis for the imposition of the tax in question only upon physicians and attorneys.
In remarks to the Senate's Banking and Insurance Committee during the above referenced meeting, a proponent of the measure, in explaining House Bill 36, said:
The purpose of the bill, is, to provide for those physicians who otherwise have no malpractice insurance . . . but don't, they, they won't go out and buy a malpractice insurance policy just so they can come down and give their time away, so they can come down and do charity. Ah, we're speaking specifically of retired physicians . . . . And most importantly for all the physicians at Fort Campbell . . . they don't have the malpractice insurance. So this would enable these physicians who do not otherwise have malpractice insurance, to come and do charity in the local communities without forcing them to purchase, ah, this, malpractice insurance . . . .
(Transcript, attached, pp. 4-5, emphasis added.)
In explaining the Senate Committee Substitute for House Bill 36, to the Committee prior to its vote on the measure, Senator Shaughnessy indicated:
We probably need to, to go through some of the background of, of how this was pulled together, and really, and I think Senator Pendleton deserves a lot of the credit for all the different entities that were involved with this. I know that the, the Trial Attorneys were involved, and the Kentucky Medical Association ah, have have both agreed to this annual fee of a dollar that's gonna go into this special fund which, and I would like to publically commend both of those organizations, ah, for the leadership that they've distributed on this. I know that I've had, uh, several discussions with April Cain, and and a number of some other people for industry perspective on this, and I I think we're in a, we're all in agreement with that. Basically, what we do is, is we're setting up this special fund by this one dollar annual fee on on attorneys and physicians practicing in the Commonwealth. This will go into a special account that is administered by the Finance Administration Cabinet that then will go towards the purchase of malpractice insurance for ah, physicians and medical providers that provide service within the limited scope of these set, these free clinics . . . .
(Transcript, attached, p. 7.)
The remarks quoted above indicate, on one hand, that charitable health care volunteers do not want to buy, at their expense, liability insurance so that they can provide charitable health care services, and on the other hand, that proposed legislation selected two occupations to bear such expense.
Neither the remarks quoted above, nor other remarks that appear in the attached transcript of the Senate Banking and Insurance Committee's consideration of the Senate Committee Substitute, establish a rational basis for creating the special classification of physicians and attorneys to pay the cost of liability insurance for charitable health care facilities and certain of their volunteers.
Designation of a particular grouping of taxpayers to pay a tax, without a rational basis for the definition of such grouping, was condemned in City of Lexington v. Motel Developers, Inc., Ky., 465 S.W.2d 253, 259 (1971), and in Jahr v. City of Radcliff, Ky., 503 S.W.2d 743, 745 (1973).
The minuscule amount of the tax currently imposed by House Bill 36, coupled with the reluctance to find against a charitable purpose, must not override the mandates of the Constitution.
House Bill 36 arbitrarily establishes a special classification of taxpayers to carry a burden others are not required to bear. It is, therefore, violative of �� 2 and 171 of the Constitution of Kentucky.
IV. House Bill 36 is Not Violative of � 116 of the Constitution of Kentucky
The request to this office indicated that:
It appears that the General Assembly has passed legislation directing the Finance and Administration Cabinet in the Executive Branch to levy a fee on the annual renewal of the professional certificate of admission to practice law that is governed solely by the Judicial Branch of the Government of the Commonwealth of Kentucky.
� 116 of the Constitution of Kentucky, in part pertinent here, states that "The Supreme Court shall, by rule, govern admission to the bar and the discipline of members of the bar."
The specific language of House Bill 36 related to the $1 annual fee imposed upon physicians and attorneys licensed in the Commonwealth provides:
An annual fee of one dollar ($1) shall be levied by the Finance and Administration Cabinet upon all physicians and attorneys licensed in the Commonwealth. The fee shall be paid upon each year's renewal of the individual's professional license.
It will be noticed from a careful reading of the specific words of House Bill 36 related to the annual fee on physicians and attorneys (quoted above), that the fee is not, in literal terms, made a part of the professional dues. The enactment merely provides that the fee ". . . shall be paid upon each year's renewal of the individual's professional license." It is well recognized that all doubts are to be resolved in favor of the constitutionality of a legislative act. Accordingly, we believe the language that "The fee shall be paid upon each year's renewal of the professional license," must be interpreted to mean that although the payment is to be made at the time of renewal of the professional license, it is not made an actual part of the professional dues. Since the legislation does not make the "fee" an actual part of the professional dues, it does not interfere with the direction of � 116 of the Constitution that admission to the bar is governed by the Supreme Court.
Of further note is the specific language added to KRS 21A.140 by House Bill 36. Section 2 of House Bill 36 amended KRS 21A.140 to read as follows, the new language added to the provision being underlined:
Any fees fixed by the Supreme Court to be paid by applicants for admission to the practice of law and for the issuance of a license to practice law shall be promptly paid into the State Treasury by the person, officer or agency designated by the Supreme Court to receive or collect the fees. The fee provided for in subsection (5) of Section 1 of this Act shall be collected and paid, by the person, officer, or agency designated by the Supreme Court, to the Finance and Administration Cabinet for deposit in the fund established in subsection (5) of Section 1 of this Act.
From a reading of the language newly added to KRS 21A.140, as quoted above, in juxtaposition with the previous language of the provision, it will be recognized that the fee involved is a new fee, provided for by specific language separate from that providing for the "fees fixed by the Supreme Court to be paid by applicants for admission to the practice of law and for the issuance of a license to practice law." Additionally, it will be observed that, in language separate from that related to the fees for admission to the practice of law and issuance of a license to practice law, the Supreme Court is directed to designate a collector for such fee.
Still further, we note no language in House Bill 36 that conditions admission to the bar on the payment of the fee in question.
The point is that the language of House Bill 36 related to the imposition of an annual fee on attorneys licensed in Kentucky, while imposing a fee to be paid "upon each year's renewal of the individual's professional license," does not expressly relate to "admission to the bar," or place any stricture on the rule making power of the Supreme Court in such regard, and thus does not conflict with Section 116 of the Constitution of Kentucky.
V. Other Concerns
Because of our findings that House Bill 36 is unconstitutional under the provisions noted above, we have not sought to analyze whether the purchase of liability insurance for certain private entities or parties (for example, charitable health care facilities and certain of their volunteers) constitutes a permissible governmental or public purpose, which, even under an altered title, or via a tax upon all the people, could be constitutionally carried out. We have grave reservations in such regard.
We have no quarrel with the laudable underlying purpose of the legislation here at issue in attempting to facilitate the delivery of charitable health care. It might be said, however, that charity ends where the compulsion of the law begins. Where, as is the case with the legislation here involved, the compulsion of the law is invoked to require selected occupations to support the charitable activity of others, the rules of law and of the Constitution of Kentucky apply. We believe we must follow the view expressed in Sweasy (above):
As we stated in Commonwealth v. O'Harrah, Ky., 262 S.W.2d 385, 389 (1953), '[c]onstitutional provisions, whether operating by way of grant or limitation, are to be enforced according to their letter and spirit'; and in Fannin v. Williams, Ky., 655 S.W.2d 480, 484 (1983), 'we cannot uphold the statute [simply] because we could find some public benefit in its purpose.'
In our view, the fact that the subject of House Bill 36 is not expressed in the title of the bill vitiates the entire measure. Accordingly, House Bill 36 is unconstitutional as a whole.
Gerard R. Gerhard
Assistant Attorney General