The Legislative Privilege to Judge the Qualifications, Elections, and Returns of Members

Paul E. Salamanca, James E. Keller

Research output: Contribution to journalArticle


In Stephenson v. Woodward, the Supreme Court of Kentucky functionally affirmed a quo warranto against a sitting member of the senate. Although a respectable argument can be made that the person in question was in fact not qualified to serve, the senate itself had deliberated on the issue and had reached its own respectable conclusion that she was qualified. More importantly, the Constitution of Kentucky, like the Constitution of the United States and that of virtually every other state, authorizes each house of the legislature to be the "judge of" its members' qualifications, elections and returns. According to the Court, the senate's authority did not apply because a lower court had found the person unqualified in a separate action litigated before the senate convened. What the Court never really explained was how this earlier ruling could supersede the senate's authority without contradicting the language of the constitution. This extraordinary reasoning, which defies longstanding tradition and precedent, is inconsistent with legislative independence, which the Court itself has recognized as a critical facet of separation of powers. The decision is also a blow to textualism, which the Court has frequently identified as an important ground for interpreting the constitution. Because of these apparent defects, and because the opinion will quite likely produce uncertainty in the areas of elections and separation of powers, the Court should consider limiting or overruling it as precedent at the first opportunity.

This Article proceeds in three parts. In Part I, we set forth the factual background for the case. In Part II, we discuss the various historical and legal principles that underlie the legilsative privilege at issue in Stephenson. In Part III, we examine the case in light of these principles, noting that the Court appears to have reached its holding in error. Our criticism of the Court's analysis takes two specific forms. First, we criticize the Court's implication that the general assembly could delegate to the judiciary irrevocable authority to resolve disputes over the qualifications of legislatives-elect. Second, we criticize the Court's indication that the legislative privilege to judge the qualifications, elections, and returns of members applies only to individuals who have already been admitted to service.

Original languageAmerican English
Pages (from-to)241-383
JournalKentucky Law Journal
Issue number2
StatePublished - Jan 1 2007


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