BAKER V. FLETCHER
TORTS: Defense (sovereign immunity)
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.