Sovereign Immunity: BAKER V. FLETCHER (SC 6/15/2006)

TORTS:  Defense (sovereign immunity)
DATE:  6/15/2006

By statute, KRS 18A.355(1), state employees are entitled to a 5% annual pay raise unless the provision is suspended by the General Assembly. In the 2002 fiscal year, the General Assembly failed to enact an Executive budget and did not suspend the law providing for the 5% raise. As a result, the Executive Branch of the Commonwealth was funded solely through an Executive Order of Governor Patton from July 1, 2002 to March 25, 2003. This budget included a 2.7 % pay raise for state employees. Plaintiffs, state employees, sued the Governor alleging that they were entitled to the full 5% raise during this interim period. As framed by the Court, the issue before it was whether the General Assembly may retroactively suspend the salary-increment statute in the middle of a budget cycle, after employee rights may have become vested.


The Court concluded that the Governor was not the appropriate party. Rather, according to the Court, the plaintiffs should have sued the General Assembly. The Court then went into a lengthy discourse on legislative immunity that included a diversion to the infamous footnote 16. The Court, however, did not resolve the case on immunity grounds. Rather, as I read the case, the Court held that the General Assembly had the power to retroactively suspend the statute and the plaintiffs only had the right to the percentage of pay raise actually appropriated by the General Assembly, albeit retroactively.

In dissent, Justice Cooper rather persuasively argued that the plaintiffs had a vested right to the pay raise when the General Assembly failed to suspend the statute. Justice Cooper argued that “no change in the law thereafter made could disturb such vested rights.” Finally, Justice Cooper seemed baffled by the Court’s immunity digression. According to Justice Cooper, “[t]he General Assembly appropriated the funds for the 5% cost-of-living increase when it failed to suspend KRS 18A.355(1). Appellants needed only to demand payment from the State Treasurer of the appropriated amounts and, if denied, to bring an action for a writ of mandamus.” 

Hays Lawson, ed.

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