RENDERED: MARCH 1, 2024; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0837-MR
RUSSELL COLEMAN, IN HIS
OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF THE
COMMONWEALTH OF KENTUCKY;
MICHAEL G. ADAMS, IN HIS
OFFICIAL CAPACITY AS
SECRETARY OF STATE OF THE
COMMONWEALTH OF KENTUCKY;
MARK METCALF, IN HIS OFFICIAL
CAPACITY AS KENTUCKY
STATE TREASURER; AND
ALLISON BALL, IN HER OFFICIAL
CAPACITY AS STATE AUDITOR
OF PUBLIC ACCOUNTS APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 22-CI-002228
ANDY BESHEAR, IN HIS
OFFICIAL CAPACITY AS
GOVERNOR OF THE
COMMONWEALTH OF KENTUCKY;
EXECUTIVE BRANCH ETHICS
COMMISSION;
DAVID KAREM, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF
THE EXECUTIVE BRANCH
ETHICS COMMISSION;
JONATHAN SHELL, IN HIS
OFFICIAL CAPACITY AS
COMMISSIONER OF THE
DEPARTMENT OF AGRICULTURE; AND
LEGISLATIVE RESEARCH COMMISSION APPELLEES
AND
NO. 2022-CA-0838-MR
JONATHAN SHELL, IN HIS
OFFICIAL CAPACITY AS
COMMISSIONER OF THE
DEPARTMENT OF AGRICULTURE APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 22-CI-002228
ANDY BESHEAR, IN HIS
OFFICIAL CAPACITY AS
GOVERNOR OF THE
COMMONWEALTH OF KENTUCKY;
DAVID KAREM, IN HIS OFFICIAL
CAPACITY AS A MEMBER OF THE
EXECUTIVE BRANCH ETHICS
COMMISSION;
LEGISLATIVE RESEARCH
COMMISSION;
ALLISON BALL, IN HER OFFICIAL
CAPACITY AS STATE AUDITOR
OF PUBLIC ACCOUNTS;
MICHAEL G. ADAMS, IN HIS
OFFICIAL CAPACITY AS
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SECRETARY OF STATE;
COMMONWEALTH OF KENTUCKY
EX REL. ATTORNEY GENERAL
RUSSELL COLEMAN; AND
EXECUTIVE BRANCH ETHICS
COMMISSION APPELLEES
AND
NO. 2022-CA-0991-MR
LEGISLATIVE RESEARCH COMMISSION APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 22-CI-002228
ANDY BESHEAR, IN HIS
OFFICIAL CAPACITY AS
GOVERNOR OF THE
COMMONWEALTH OF KENTUCKY; AND
DAVID KAREM, IN HIS
OFFICIAL CAPACITY AS A
MEMBER OF THE EXECUTIVE
BRANCH ETHICS COMMISSION APPELLEES
OPINION AND ORDER
REVERSING AND REMANDING IN ALL APPEALS;
DENYING THE GOVERNOR’S MOTION TO DISMISS
IN NO. 2022-CA-0991-MR;
AND DENYING THE ATTORNEY GENERAL’S
MOTION FOR LEAVE TO FILE AN AMICUS BRIEF
IN NO. 2022-CA-0991-MR
** ** ** ** **
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BEFORE: COMBS, ECKERLE, AND JONES, JUDGES.
ECKERLE, JUDGE: The broad question before us is whether the General
Assembly has the Constitutional authority to distribute among the Governor and
the elected Constitutional Officers appointive and removal powers over inferior
state officers and members of executive branch boards and commissions? The
short answer is yes.
Our affirmative answer to that question then requires we further
analyze whether a certain distribution is a legislative overreach in violation of
Sections 27, 28, 69, and/or 81 of the Kentucky Constitution because the Governor
does not possess the power to appoint the majority of members or to remove any
member for cause. Pursuant to the analysis below, we ultimately find the
complained-of House Bill contains no violation of the aforementioned Sections.
BACKGROUND
This case involves the General Assembly’s reorganization of the
membership board of an inferior state office, the Executive Branch Ethics
Commission (“EBEC”), that exists to investigate potential ethical violations of the
Executive Ethics Code (“Code”) within the Executive Branch. Both the EBEC and
the Code were codified in 1992 when KRS1 11A.001 et seq. was enacted. The
Code, and a later-adopted, similar code for the Legislative branch, were born from
1
Kentucky Revised Statutes.
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the Commonwealth’s interest “to eliminate the apparent/actual corruption from the
political system.” Associated Industries of Kentucky v. Commonwealth, 912
S.W.2d 947, 950 (Ky. 1995). The Code outlines the policy reasons for its
existence:
(1) It is the public policy of this Commonwealth that a
public servant shall work for the benefit of the people
of the Commonwealth. The principles of ethical
behavior contained in this chapter recognize that
public office is a public trust and that the proper
operation of democratic government requires that:
(a) A public servant be independent and impartial;
(b) Government policy and decisions be made through
the established processes of government;
(c) A public servant not use public office to obtain
private benefits; and
(d) The public has confidence in the integrity of its
government and public servants.
(2) The principles of ethical behavior for public servants
shall recognize that:
(a) Those who hold positions of public trust, and
members of their families, also have certain
business and financial interests;
(b) Those in government service are often involved in
policy decisions that pose a potential conflict with
some personal financial interest; and
(c) Standards of ethical conduct for the executive
branch of state government are needed to
determine those conflicts of interest which are
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substantial and material or which, by the nature of
the conflict of interest, tend to bring public
servants into disrepute.
KRS 11A.005.
As the EBEC describes itself in its brief, it “is an independent agency
of the Commonwealth which has been given the responsibility of administering
and enforcing the provisions of the Code of Ethics.” EBEC’s Appellee’s Brief, p.
2. To perform its functions, the EBEC is authorized to “employ an executive
director and any other employees, agents, and consultants it considers necessary[.]”
KRS 11A.070. It may engage outside counsel and “make use of the services and
facilities of the office of the Attorney General or of any other state agency.” Id.
The EBEC “is granted statutory authority to enforce provisions of the [Code.]”
Kentucky Executive Branch Ethics Comm’n v. Atkinson, 339 S.W.3d 472, 474 (Ky.
App. 2010). The Code, with limited exceptions, applies to all “public servants,”
which is a broadly-defined term including the Governor, all Constitutional Officers
elected pursuant to Section 91 of the Kentucky Constitution (“Constitutional
Officers”), all employees in the executive branch, all officers in the executive
branch, merit employees in the executive branch, and certain government
contractors. KRS 11A.010(9); KRS 11A.040.
Pursuant to the Code, “KRS 11A.080 mandates that the [EBEC] shall
investigate any alleged violation of KRS Chapter 11A.” Atkinson, 339 S.W.3d at
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474. The EBEC maintains subpoena power to carry out its investigations. KRS
11A.090. It may hold administrative hearings pursuant to the provisions of KRS
Chapter 13B and issue orders of reprimand, cease-and-desist orders, orders for
removal or suspension from office or employment, or issue civil penalties of not
more than $5,000, should those hearings show clear and convincing proof of a
violation of KRS Chapter 11A. KRS 11A.100; Turbyfill v. Executive Branch
Ethics Comm’n, 303 S.W.3d 124, 129-30 (Ky. App. 2009).
Importantly, though, the EBEC has no authority to pursue criminal
prosecutions. “The EBEC is not empowered to impose any criminal sanctions,
leaving any criminal penalties to be pursued by the Office of the Attorney
General.” Turbyfill, 303 S.W.3d at 129. See also KRS 11A.100(5) (“The
commission shall refer to the Attorney General evidence of violations of KRS
11A.040 for prosecution. The Attorney General shall have responsibility for all
prosecutions under the law and may request from the commission all evidence
collected in its investigation . . . .”).
When first enacted, the EBEC’s board was composed of five
members, all appointed by the Governor to serve staggered, four-year terms. KRS
11A.060. The Governor also had the power to remove any of the members for
cause. Id. The statute was amended four times over the years. One of those
changes involved detaching the EBEC from the office of the Governor and
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attaching it to the Finance and Administration Cabinet for administrative purposes.
KRS 11A.060(10). Two other changes were minor and not relevant to the instant
challenge.
The latest change, and the subject of the instant constitutional
challenge, occurred via House Bill 334 of the 2022 Regular Session of the General
Assembly (“HB 334”).2 The contents of HB 334, among other actions, terminated
the unexpired terms of the current members and changed the composition of the
EBEC’s board such that it would now consist of seven total members. The
Governor would appoint two of the members, the Lieutenant Governor would
appoint zero members, and the Secretary of State, Attorney General, Treasurer,
Commissioner of Agriculture, and Auditor of Public Accounts would each appoint
a member. HB 334 included some shorter terms of certain initial members so that
members of the EBEC would ultimately have staggered, four-year terms.
Additionally, the removal-for-cause provision was amended such that only the
“appointing authority who appointed” the particular member had the power to
remove him or her for cause. KRS 11A.060(7). A subsection was also added
prohibiting reorganization of the EBEC “except by statute.” KRS 11A.060(11).
Believing HB 334 violated multiple provisions of the Kentucky
Constitution, the Governor filed a declaratory judgment action in Jefferson Circuit
2
2022 Ky. Acts ch. 203 (eff. Jul. 14, 2022).
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Court. The respective parties each filed motions that could be dispositive of the
underlying claims. The Trial Court then granted summary judgment in favor of the
Governor and denied the other parties’ motions. The Trial Court found HB 334
violated Sections 27, 28, 69, and 81 of the Kentucky Constitution:
The Governor is vested with “supreme executive power
of the Commonwealth” under Section 69[] of the
Kentucky Constitution. While presumably all branches
of government have a shared interest, in keeping with
Sections [sic] 81[] of the Kentucky Constitution, the
Governor is the constitutional officer charged with the
duty to take care (i.e. ensure) that the laws of Kentucky
are faithfully executed. As such, and although the
Legislature has the prerogative to withhold executive
power from the Governor by assigning them to other
constitutional officers, it cannot do so where the
reassignment effectively creates another executive officer
who will not be subject to the Governor’s supremacy or
otherwise interferes with the Governor’s Constitutional
duty/mandate to take care that the laws are faithfully
executed. See Brown v. Barkley, 628 S.W.2d 616, 622
(Ky. 1982); Legislative Research Commission by Prather
v. Brown, 664 S.W.2d 907, 913 (Ky. 1984). The Court
finds such to be the case in the instant case.
In order to carry out the constitutional duty to take care
that the laws of Kentucky are faithfully executed, a
Governor must have sufficient control over the
mechanisms through which that responsibility is effected.
The Commission, as would be the case with any board or
commission that is primarily administrative or executive
in character, is just such a mechanism. A Governor’s
ability to do so depends on his or her ability to appoint
the commissioners, supervise their day-to-day activities
and, where appropriate, remove them. HB-334 so
severely divests, diminishes, and diverts the current
Governor’s ability to do so that it functionally,
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practically, and effectively prohibits him from ensuring
(i.e. “taking care”) that the Executive Branch Code of
Ethics (i.e. “the law”) is faithfully executed and cedes
that authority and control to constitutional officers who
are not charged with that same constitutional duty. In so
doing, it improperly impedes his supreme executive
authority as Chief Magistrate and, functionally,
practically, and effectively creates a superior executive
body (i.e. one over which the Governor has no control).
As such, HB-334 is unconstitutional.
Opinion and Order, pp. 3-5. The Trial Court permanently enjoined HB 334 from
taking effect. One Constitutional Officer filed a notice of appeal before the other
Constitutional Officers filed their combined notice of appeal. Their appeals have
been consolidated for briefing purposes. The Trial Court also denied a motion to
dismiss filed by the Legislative Research Commission (“LRC”). The LRC timely
appealed. Separate briefing occurred, and two motions were filed in that case.3
ANALYSIS
I. LRC Appeal No. 2022-CA-0991-MR
We first address the LRC’s appeal. The Governor named the LRC as
a party to the underlying declaratory judgment action challenging the
constitutionality of HB 334. The LRC, alleging legislative immunity, moved to
3
Two outstanding motions exist in this case as well. First, the Governor has filed a motion to
dismiss the case. Second, the Attorney General moved for leave to file an amicus brief. We
deny both motions for the reasons stated infra.
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dismiss the claims against it. The Trial Court denied the motion, and the LRC
appealed.
In light of Stivers v. Beshear, 659 S.W.3d 313 (Ky. 2022), which
became final after the filing of LRC’s Appellant’s Brief in our Court, the LRC
should have been dismissed by the Trial Court, as the LRC was entitled to
immunity from suit. The Governor now concedes the LRC is entitled to legislative
immunity, but argues the proper remedy is to dismiss the LRC appeal as moot.
The Governor filed a separate motion to dismiss the instant appeal, and the motion
was passed to this panel for a ruling. The LRC argues that dismissal for mootness
is not the proper remedy; instead, the LRC prays that we reverse and remand the
instant appeal with directions to the Trial Court to dismiss the LRC with prejudice.
We agree with the LRC.
This case is on all fours with Stivers, and its outcome for the LRC
should be no different. There, legislation was being challenged through a
declaratory judgment action, and the LRC appealed the denial of a motion to
dismiss. Finding the LRC was entitled to legislative immunity under Section 43 of
the Kentucky Constitution, the Kentucky Supreme Court reversed and remanded
the denial of the motion to dismiss. Specifically, the Supreme Court remanded
“with instruction to dismiss all claims against . . . the LRC with prejudice.” Id. at
326.
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Such is the proper remedy here. If we were to simply dismiss the
appeal as the Governor suggests, the LRC would still be a party to the underlying
declaratory judgment action as the Trial Court’s order denying the motion to
dismiss the LRC would still be in effect. The LRC would still be a party unless
and until it is dismissed from the case. Because the LRC would remain a party
when it should be immune from suit and dismissed with prejudice, the case is not
moot because there has not been “a change in circumstance [that] renders th[e]
court unable to grant meaningful relief to either party.” Medical Vision Group,
P.S.C. v. Philpot, 261 S.W.3d 485, 491 (Ky. 2008). We can – and must – grant
meaningful relief to the LRC and reverse and remand for entry of an order
dismissing all claims against the LRC with prejudice. Accordingly, we deny the
Governor’s motion to dismiss the appeal. We also deny the Attorney General’s
motion to file an amicus brief, as all parties agree that Stivers is controlling; thus,
no additional exposition on legislative immunity is necessary for this appeal’s
disposition.
II. Constitutional Officers’ Appeal Nos. 2022-CA-0837-MR and 2022-
CA-0838-MR
At the heart of these appeals is a legislative act that takes away some
appointive and removal power from the Governor and disburses those powers to
other elected executive officers. Resolving whether this legislative act is
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constitutional requires us, the judicial branch, to consider the claims without
assigning a value, positive or negative, to the legislation itself or the politics
underlying the same. Johnson v. Commonwealth ex rel. Meredith, 291 Ky. 829,
165 S.W.2d 820, 823 (1942) (“[I]t is a principle, basic in its recognition and
fundamental to the co-ordination of the two divisions of governmental power, that
the courts do not concern themselves with the wisdom, need or appropriateness of
legislation, nor the purposes motivating it.”). See also City of Lebanon v. Goodin,
436 S.W.3d 505, 516 (Ky. 2014) (“It would be equally unwise for the Court to
endeavor to discern the motivations of a particular legislator or legislative body in
making a policy decision or enacting legislation.”). Accordingly, the bare question
before us is whether HB 334 violates any or all of four Sections of our Constitution
– Sections 27, 28, 69, and 81. We begin our analysis with two of those Sections.
A. Does HB 334 violate Sections 69 and 81 of the Kentucky Constitution?
The Governor argues that HB 334 violates Sections 69 and 81 of the
Kentucky Constitution. Those Sections read, respectively:
The supreme executive power of the Commonwealth
shall be vested in a Chief Magistrate, who shall be styled
the “Governor of the Commonwealth of Kentucky.”
and
He [the Governor] shall take care that the laws be
faithfully executed.
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The Governor claims that HB 334 violates the “supreme executive
power” and the “take care” clauses of these two Sections. Pursuant to these
clauses, the Governor argues that his duties as the supreme executive who must
take care that the laws are faithfully executed require that he have appointive
power for the majority of EBEC’s board members and removal-for-cause power
over all its board members. Specifically, the Governor states:
With only two appointments to the seven-member
commission, the Governor is unable to ensure the
Commission will enforce the Code. As a minority, his
appointments cannot ensure the Commission adopts
appropriate regulations, carries out necessary
investigations or properly disciplines executive branch
employees for Code violations. The Commission could
launch meritless politically-motivated investigations and
make findings and impose civil penalties in those
matters. The Governor would have no power to remedy
such conduct and ensure the law is faithfully executed.
The Governor would also be unable to remove members
of the new Commission that he does not appoint, even for
cause. If the Governor cannot appoint the majority of
members of the commission and remove them for cause,
he cannot ensure that the laws are faithfully executed.
...
Furthermore, HB 334 would dilute the Governor’s ability
to take care that the laws are faithfully executed in favor
of the other constitutional officers. While the General
Assembly may diffuse power among other constitutional
officers, it cannot subvert the Governor’s supreme
executive power in favor of those officers.
Appellee’s Brief at 10-11.
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One of the Governor’s principal arguments is that his take-care duties
under Section 81 of the Kentucky Constitution are akin to the “Take-Care” duties
of the President of the United State under Article II, Section 3 of the United States
Constitution. We initially note that there was a brief exposition about the limits of
the take-care clause during the Kentucky constitutional debates. When discussing
what was then numbered Section 14, but with identical text to our current Section
81, the delegates conducted a brief exchange:
Mr. C.T. ALLEN. I would like to ask some information
of the Chairman with reference to the meaning of that.
Unless there is some power given to the Governor to
enable him to compel officers to do their duty, it is
utterly meaningless to me.
Mr. DeHAVEN. In answer to the interrogatory put by
the Delegate from Caldwell, I would say that is the
identical provision, if my recollection serves me right,
that is in the Constitution of the United States and the
Constitution of this State. I apprehend that that means
that all the executive power within which the Governor is
vested shall be exercised whenever an emergency arises
making it necessary to execute the law.
Mr. C.T. ALLEN. Suppose a Sheriff in a county of this
State were to refuse to do what the Governor directed
him to do, or requested him to do, what would be the
remedy?
Mr. DeHAVEN. I do not know that the Governor has
any right to direct a Sheriff to do any thing.
A vote being taken, the section was adopted.
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Vol. I, OFFICIAL REPORT OF THE PROCEEDINGS AND DEBATES IN THE CONVENTION,
1051 (1890).4
From this brief debate we can conclude little of substance, save for the
fact that the clause is similar to the Federal Take-Care Clause and the delegates
expected limits on the office of the Governor. But while there are similarities in
terms between the Take-Care Clause in the Federal Constitution and the take-care
duty in the Kentucky Constitution, the structural difference of the Kentucky
executive branch highlights the limits on the Governor’s power and necessarily
hinders drawing parallels to the President’s power.
First, the accountability structure between our Governor and the
President is wholly disparate. In the Federal context “[t]he entire ‘executive
Power’ belongs to the President alone.” Seila Law LLC v. Consumer Financial
Protection Bureau, 591 U.S. ____, 140 S. Ct. 2183, 2197, 207 L. Ed. 2d 494
(2020). In Kentucky, though, the executive power is not so singularly held. The
framers of our Constitution saw fit to create an executive branch consisting of
multiple, elected, independent executive officers that “provide convenient
receptacles for the diffusion of executive power.” Brown v. Barkley, 628 S.W.2d
616, 622 (Ky. 1982). This diffusion of executive power occurs because the
General Assembly may grant “such powers and responsibilities” to the
4
Hereinafter the Debates will be cited as “Vol #, Debates, Page #.”
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Constitutional Officers through duly-enacted legislation.5 Id. at 621-22
(“Whatever, therefore, the Commissioner of Agriculture may have in the way of
functions, authority, funds or personnel can be removed to another agency at the
will of the General Assembly.”).
This structural difference is significant. Under Kentucky’s executive
system, the citizenry elects multiple elected executive officials who have duties
prescribed by the General Assembly and Kentucky’s Constitution. Each elected
executive official is in turn held accountable by the electorate for his or her
respective decisions and actions. In contrast, the Federal executive branch is a
much narrower focus and magnified in a singular entity, the President, who, given
the immensity of the job, necessarily must appoint, oversee, and control lesser
officials to help the President carry out all federal executive powers across the
entire United States. See, e.g., Seila Law, 591 U.S. ____, 140 S. Ct. at 2197.
To take care that the Federal laws are faithfully executed by the lesser
officials, the President must have the power of appointment of certain executive
officers. The President’s power also includes the ability to remove certain
executive officials, “for it is ‘only the authority that can remove’ such officials that
they ‘must fear and, in the performance of [their] functions, obey.’” Id. (citation
5
Two exceptions exist: the Attorney General possesses certain powers that existed at common
law, and the Secretary of State has certain clerical duties. Barkley, 628 S.W.2d at 621.
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omitted) (alteration in original). That power is not omnipotent, though, as
Congress may impose some removal restrictions depending on the character of the
office. Id. Additionally, granting the President both power to appoint and remove
allows the voting public to hold him or her accountable, because “‘[w]ithout such
power [to remove appointees], the President could not be held fully accountable for
discharging his own responsibilities; the buck would stop somewhere else.’” Id.,
591 U.S. ____, 140 S. Ct. at 2191 (quoting Free Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U.S. 477, 541, 130 S. Ct. 3138, 177 L.
Ed. 2d 706 (2010)).
Comparing the Governor and the President, then, results in a stark
contrast. Whereas the Federal executive places all “political accountability” in a
singular elected official, providing a “‘single object for the jealousy and
watchfulness of the people[,]’” Seila Law, 591 U.S. at ____, 140 S. Ct. at 2203
(citation omitted), the Kentucky Constitution creates multiple elected executive
officers, explicitly reserving some powers to the Governor, see, e.g., Sections 75-
80, and otherwise permitting the General Assembly to disburse executive power to
the other elected officers, see Barkley, 628 S.W.2d at 622 (“independent executive
offices provide convenient receptacles for the diffusion of executive power”).
Second, and as a result of the diffused accountability structure, the
corresponding power of removal is different. For example, over certain officials
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the President has a “power of removal” that “is incident to the power of
appointment[.]” Myers v. United States, 272 U.S. 52, 122, 47 S. Ct. 21, 27, 71 L.
Ed. 160 (1926). In situations where the “grant of the executive power is enforced
by the express mandate to take care that the laws be faithfully executed, it
emphasizes the necessity for including within the executive power as conferred the
exclusive power of removal.” Id.
In Kentucky, however, no power of removal is constitutionally
incident to any appointive powers the Governor possesses. Johnson v. Laffoon,
257 Ky. 156, 77 S.W.2d 345, 348 (1934) (citing McChesney v. Sampson,
Governor, 232 Ky. 395, 23 S.W.2d 584 (1930)). See also KRS 63.080, and
Beauchamp v. Rahm, 283 Ky. 50, 140 S.W.2d 633, 636 (1940) (citing Page v.
Hardin, 8 B. Mon. 648, 47 Ky. 648 (1848)) (“[T]he power to appoint d[oes] not
embody the power to remove.”).
The reasons for the President’s having some removal power under the
Take-Care clause further highlights the President’s superior position. In the
Federal context, administrative appointments come in different varieties depending
on “the character of their service as prescribed in the law under which they act.”
Myers, 272 U.S. at 132, 47 S. Ct. at 30. “The highest and most important duties
which [the President’s] subordinates perform are those in which they act for [the
President].” Id. These appointments are “political” and act as “the President’s
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alter ego in the matters of that department where the President is required by law to
exercise authority[,]” id. at 132-33, 41 S. Ct. at 30, for example, when such officers
are acting to protect the public domain or to operate quasi-civil foreign
governments under the President’s direction as commander-in-chief, id. at 134, 41
S. Ct. at 31. “In all such cases, the discretion to be exercised is that of the
President in determining the national public interest and in directing the action to
be taken by his executive subordinates to protect it.” Id.
The President places his “implicit faith” in such members of “his
official family” to act and do his will. Id. “The moment that he loses confidence
in the intelligence, ability, judgment, or loyalty of any one of them, he must have
the power to remove him without delay.” Id.
In contrast, Kentucky’s inferior officers and members are not so
reflective of a single, superior executive officer, and their decisions do not affect
the entire national interest. Even in the present case, the EBEC’s decision-making
is not singularly reflective of the Governor, as the EBEC is statutorily tasked with
enforcing the Code for the entire executive branch, including the Governor.
And, as we have already noted, the “power of removal is not incident
to the power of appointment” in Kentucky. Johnson, 77 S.W.2d at 348. Not only
that, but also “the power of removal is not inherent in the Governor.” Id. (citing
Page v. Hardin, 8 B. Mon. 648, 47 Ky. 648 (1848)). Nonetheless, the power of
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removal of an executive officer is “an administrative or executive function and not
a judicial one[.]” Holliday v. Fields, 207 Ky. 462, 269 S.W. 539, 540 (1925)
(affirming statute permitting governor to remove peace officers for cause). Thus,
the executive removal power should fall into the hands of the Governor or a
Constitutional Officer, as the General Assembly “definitely has the prerogative of
withholding executive powers from [the Governor] by assigning them to these
constitutional officers who are not amenable to his supervision and control.”
Barkley, 628 S.W.2d at 622.
Finally, not all of the Presidential powers derived from the Federal
Take-Care clause translate to the Governor’s duty to take care of the laws in
Kentucky. One such power is the removal power, discussed infra. Another is
prosecutorial discretion, see Heckler v. Chaney, 470 U.S. 821, 832, 105 S. Ct.
1649, 84 L. Ed. 2d 714 (1985), which, in the Federal context, is given to the
Attorney General and the United States Attorneys “because they are designated by
statute as the President’s delegates to help him discharge his constitutional
responsibility to ‘take Care that the Laws be faithfully executed.’” United States v.
Armstrong, 517 U.S. 456, 464, 116 S. Ct. 1480, 1486, 134 L. Ed. 2d 687 (1996).
In contrast, Kentucky’s Attorney General is a separately elected Section 91
Constitutional Officer and not the Governor’s statutory delegate. The Attorney
General serves as the chief law enforcement officer of Kentucky with resulting
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prosecutorial discretion. See Commonwealth v. Johnson, 423 S.W.3d 718 (Ky.
2014); KRS 15.020.
Notably, in the instant case, the Code requires any criminal
prosecutions be referred to the Attorney General, who would then exercise
prosecutorial discretion on pursuing criminal charges. See KRS 11A.100(5);
Turbyfill, 303 S.W.3d at 129.
Beyond the above differences with the Federal government, in
Kentucky the “take-care” clause of Section 81 is a source of duty, not a source of
power. Indeed, Section 81 does not even require the Governor to implement every
law when doing so would require the Governor to perform a legislative action; “the
mere existence of a law does not mean that it must be implemented if doing so
requires the expenditure of unappropriated funds.” Fletcher v. Commonwealth,
163 S.W.3d 852, 869 (Ky. 2005). The plain and simple phrase “take care that the
laws be faithfully executed” in our Constitution is “an idle and meaningless
phrase” without some other power lodged in the Governor. Franks v. Smith, 142
Ky. 232, 134 S.W. 484, 487 (1911) (emphasis added). As noted by the Franks
Court:
The power to call out the state militia was vested in the
Governor, the chief executive officer of the state, for the
wise and wholesome purpose of enabling him to carry
into effect the mandate of the Constitution that he must
“take care that the laws be faithfully executed.” If this
power was not lodged in him, then this provision of the
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Constitution would be an idle and meaningless phrase,
because, although charged with the duty of taking care
that the laws of the state should be faithfully executed, he
would have no authority to enforce the obligation
imposed upon him.
Id.
So, the question is, does the Governor’s status as the supreme
executive under Section 69 grant him some power that can couple with the “idle
and meaningless phrase” in Section 81 to grant the Governor power to control
boards through appointment and removal? We are bound by precedent to answer
this question in the negative.
Pursuant to Section 69, the Governor “has only such powers as the
Constitution and Statutes, enacted pursuant thereto, vest in him, and those powers
must be exercised in the manner and within the limitations therein prescribed.”
Royster v. Brock, 258 Ky. 146, 79 S.W.2d 707, 709 (1935). See also Barkley, 628
S.W.2d at 623 (“Practically speaking, except for those conferred upon him
specifically by the Constitution, his powers, like those of the executive officers
created by Const. Sec. 91, are only what the General Assembly chooses to give
him.”). The “supreme executive power” provision “only vests the Governor with
executive powers, just as Section 29 vests the General Assembly with legislative
powers and Section 109 vests the Court of Justice with judicial powers.” Fletcher,
163 S.W.3d at 869.
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History supports this conclusion. Within a few decades of the current
Constitution’s adoption, our highest Court noted the Governor’s office has few
inherent powers. For example, “[t]he right to convene the General Assembly in
extraordinary session does not inhere in the office of Governor, nor is it a
necessary incident of the office.” Royster, 79 S.W.2d at 709. “[T]he office of
governor was ‘unknown to common law’ and created solely by our state
constitution.” Kentucky Employees Retirement System v. Seven Counties Services,
Inc., 580 S.W.3d 530, 539 (Ky. 2019) (citing Royster, supra). Pertinent to the
current issue of dispersing executive powers, our then-highest Court noted the
power to call a special session under Section 80 of the Kentucky Constitution
“might have been lodged in some other state official, or in the Legislature itself.”
Royster, 79 S.W.2d at 709 (emphasis added). See also Kentucky Employees
Retirement System, 580 S.W.3d at 539 (holding that construction of a statute as
giving the Governor the power to contract with any department for participation in
the Kentucky Employees Retirement System “would violate Kentucky law
providing that ‘[t]he Governor has only such powers as are vested in him by the
Constitution and the statutes enacted pursuant thereto’”) (quoting Martin v.
Chandler, 318 S.W.2d 40, 44 (Ky. 1958)). Compare with Guenthner v. Brown,
671 S.W.2d 260 (Ky. App. 1984) (Governor possesses the authority under Section
80 of the Kentucky Constitution to change or alter the date of an extraordinary
-24-
session of the General Assembly); Stickler v. Higgins, 269 Ky. 260, 106 S.W.2d
1008 (1937) (Governor possesses the authority under Section 80 of the Kentucky
Constitution to amend, correct, or add to the subjects mentioned in the original
proclamation calling for an extraordinary session); Fletcher, 163 S.W.3d at 869
(Governor has no inherent power to order appropriations necessary for the
executive department to prevent the imminent collapse of government services).
We do acknowledge the Governor has not argued that his power is
wholly eminent; the Governor’s argument implicitly, if not explicitly,
acknowledges the weight of the foregoing jurisprudence. Indeed, the Governor
concedes that “the General Assembly may diffuse executive power among other
constitutional officers,” but argues nonetheless that his executive power must
remain supreme per Section 69; meaning, the Governor must have the power to
appoint a majority of members and remove any member for cause. The Governor
cites to Brown v. Barkley, 628 S.W.2d 616 (Ky. 1982), for this proposition.
Having thoroughly reviewed Barkley, we do not come to the same conclusion.
In Barkley, the then-Governor of Kentucky, John Y. Brown, issued an
executive order attempting to transfer functions, personnel, and funds from the
Department of Agriculture and place them in a newly created Energy and
Agriculture Cabinet. The then-Commissioner of Agriculture challenged the
validity of the executive order on statutory grounds, and the trial court agreed. The
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Governor appealed, claiming both statutory and constitutional authority to cause
the transfer and creation of the new cabinet. The Kentucky Supreme Court
disagreed, finding neither the statute nor the Constitution permits the Governor
such power. Id. at 618.
In a thorough discussion of the interrelation of constitutional powers
granted to the Governor, the Constitutional Officers, and the General Assembly,
the Court noted two overriding principles. First, any unexpressed executive power
– whether implied or inherent – is “subservient to the overriding authority of
legislature[.]” Id. at 621. And second, the Constitutional Officers “have only such
powers and duties as are assigned to them by legislative enactment or by executive
order expressly authorized by statute.” Id.
The office of Governor is established as the “supreme executive
power of the Commonwealth” in Section 69. Id. That office is given seven
expressly conferred powers and duties, namely that the Governor: is the
commander-in-chief of the military forces (Section 75); may fill vacancies in office
except as otherwise stated in the Constitution (Section 76); may grant pardons and
reprieves and remit fines and forfeitures (Section 77); may require written
information from the Constitutional Officers on subjects relating to their respective
offices (Section 78); shall report the state of the Commonwealth to the General
Assembly (Section 79); may call a special session of the General Assembly and
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adjourn the General Assembly in certain circumstances (Section 80); and must take
care that the laws are faithfully executed (Section 81). Id.
Conversely, the Constitutional Officers, which are established
pursuant to Sections 91 and 93 of the Kentucky Constitution, have such duties as
are prescribed by law, save only that the Attorney General has some powers that
existed at common law, and the Secretary of State has some specifically prescribed
clerical duties. Barkley, 628 S.W.2d at 621-22.
Noting this “naked” authority granted to the Constitutional Officers,
the Barkley Court asked the question why the Constitutional Officers are elected or
even mentioned at all in the Constitution. Id. at 622. “The answer, we think,
though it may not have been articulated by the framers of the Constitution in their
debates, is that these independent executive offices provide convenient receptacles
for the diffusion of executive power.” Id. (emphasis added). The Governor’s
authority as the “supreme executive power” negates the General Assembly’s
authority “to create another executive officer or officers who will not be subject to
that supremacy[.]” Id. However, the General Assembly “definitely has the
prerogative of withholding executive powers from him by assigning them to these
constitutional officers who are not amenable to his supervision and control.” Id.
Barkley’s holding has been reaffirmed in the years since its passage:
In Brown v. Barkley, we held that the Governor
could not transfer legislatively-created [sic] functions
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from one executive agency to another executive agency
without legislative authority to do so. Ky., 628 S.W.2d
616, 623 (1982). In so holding, we stated that, if the
Governor had the inherent executive power to make the
transfers in question, then that inherent power was
subordinate to the will of the General Assembly. Id.
Other cases make clear that the executive power of
removal is likewise subordinate to will of the General
Assembly. See, e.g., McChesney v. Sampson, 232 Ky.
395, 23 S.W.2d 584, 586 (1930) (Governor could not
remove his own appointee without statutory authority).
Johnson [v. Commonwealth ex rel. Meredith, 291
Ky. 829, 165 S.W.2d 820 (1942)] and B[arkley] stand for
the proposition that the General Assembly may take
common-law powers away from executive constitutional
officers and assign them to different executive officers or
agencies without violating the constitution, which is all
that occurred in this case.
McClure v. Augustus, 85 S.W.3d 584, 586 (Ky. 2002), as modified (Oct. 8, 2002)
(alterations added).
Our Supreme Court recently reaffirmed Barkley in a case involving
largely the same instant parties:
Barkley is instructive in this regard, but not as the
Governor argues. Under Section 15, the General
Assembly might grant the Governor the power to
suspend statutes. Or, it properly might grant that power
to the Attorney General. See Barkley, 628 S.W.2d at 621
(stating “the officers named in [Section] 91 have only
such powers and duties as are assigned to them by
legislative enactment or by executive order expressly
authorized by statute[ ]”). In Barkley, we recognized the
Constitution framers created these independent,
statewide-elected officers to “provide convenient
receptacles for the diffusion of executive power.” Id. at
-28-
622. Given the importance of the power to suspend laws,
we see no valid reason why the General Assembly might
not properly grant the power to two independently-
elected constitutional officers.
The Governor argues that the immediately
following sentence in Barkley supports his argument that
by doing so, the General Assembly has impermissibly
“create[d] another executive officer or officers who will
not be subject to [the Governor’s] supremacy[.]” Id. The
complete quotation is:
As the Governor is the “supreme executive
power,” it is not possible for the General
Assembly to create another executive officer
or officers who will not be subject to that
supremacy, but it definitely has the
prerogative of withholding executive
powers from him by assigning them to
these constitutional officers who are not
amenable to his supervision and control.
Cameron v. Beshear, 628 S.W.3d 61, 76-77 (Ky. 2021) (emphasis in original).
The Cameron Court was concerned with the General Assembly’s
delegation of its Section 15 powers, while the instant case concerns the General
Assembly’s delegation of power under Section 93. Both Sections permit the
General Assembly to decide how powers will be used. Compare Section 15 (“No
power to suspend laws shall be exercised unless by the General Assembly or its
authority.”) (emphasis added), with Section 93 (“Inferior State officers and
members of boards and commissions, not specifically provided for in this
Constitution, may be appointed or elected, in such manner as may be prescribed
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by law, which may include a requirement of consent by the Senate . . . .”)
(emphasis added). Thus, we do not find a factual or legal distinction that changes
the analysis in the instant case, and we are bound to follow this precedent. Kindred
Healthcare, Inc. v. Henson, 481 S.W.3d 825, 829 (Ky. App. 2014).
The weight of authority shows that in the absence of an explicit
statutory or constitutional power that requires the Governor to have majority
appointive power and complete removal power for members of administrative
boards, our Supreme Court has spoken – the General Assembly may “withhold[]”
executive powers from the Governor and “assign[]” them to the remaining
Constitutional Officers. Cameron, supra, and Barkley, supra. Neither Section 69
nor 81 grants more to the Governor.
Beyond Cameron and Barkley, though, we note that Fox v. Grayson,
317 S.W.3d 1 (Ky. 2010), contains historical analysis that is pressing on whether
the Governor’s power should require that he appoint a majority of members of an
administrative board or membership. The Fox Court was tasked with determining
whether non-constitutionally mandated state officers could be confirmed by both
the Senate and the House, rather than just the Senate. See Section 93 of the
Kentucky Constitution (stating, in relevant part, “Inferior State officers and
members of boards and commissions, not specifically provided for in this
Constitution, may be appointed or elected, in such manner as may be prescribed by
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law, which may include a requirement of consent by the Senate . . . .”). The
Governor in Fox noted that “the framers of our 1891 Constitution rejected a
proposed section that would have required all non-constitutionally mandated state
officers to have been confirmed by the Senate.” Fox, 317 S.W.3d at 11. Indeed,
the framers deleted a portion of Section 76, which then read:
He [the Governor] shall appoint, with the advice and
consent of the Senate, all State officers who are not
required by this Constitution, or the laws made
thereunder, to be elected by the people.
Vol. IV, Debates, 5728.
The Court noted that this language “was originally intended only to
permit the Governor to appoint the state Librarian.” Fox, 317 S.W.3d at 12. The
language was not intended to give the Governor such broad powers of
appointment, as Delegate Charles J. Bronston of Fayette County stated to the
delegates, “It was not understood at that time that the appointing power should be
extended to any other official save that.” IV, Debates, 5728.
The problem noted with this broad language in Section 76 is that it
would have removed from the General Assembly the “flexibility in determining
whether inferior state officers should be elected or appointed.” Fox, 317 S.W.3d at
12. That flexibility is derived from “the more general language of what ultimately
became § 93[.]” Id. Thus, the deletion of the language in Section 76 was not to
take away confirmation power from the Senate. Quite the opposite – its removal
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was to “give the General Assembly flexibility in determining which inferior state
officers must be subjected to confirmation at all.” Id.
The Court in Fox quoted approvingly a portion of Delegate
Bronston’s comments during the Debates to arrive at the above conclusion. Id.
We reproduce the entirety of Delegate Bronston’s statement here:
We did not deem that that would be wise, because, if that
construction was given, unquestionably it would allow
the Governor to appoint, not only the Librarian, but the
Commissioner of Insurance and the Reporter of the Court
of Appeals, and other subordinate officers, who are paid,
by reason of their appointment for service in Frankfort,
out of the State Treasury, and it would disturb that settled
principle which, we believe, has been approved by the
people, that as to all these subordinates, it should be left
to the power of the General Assembly to say whether
they should be elected or appointed, and if not elected
by the people, by whom they should be appointed.
IV, Debates, 5728 (emphasis added).
It appears, then, that the delegates were cognizant that deleting the
language from Section 76 would have at least three results pertinent to this case:
(1) the Governor would not by default have the power to appoint all non-
constitutional officers or members; (2) the General Assembly would have the
power to decide whether each non-constitutional officer or member should be
elected or appointed; and (3) the General Assembly would have the power to
determine “by whom” the non-elected, non-constitutional officers or members
should be appointed.
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Indeed, almost a century ago our state’s highest Court affirmed an act
that reorganized a commission and wholly changed the Governor’s appointment
power over those members. In Rouse v. Johnson, 234 Ky. 473, 28 S.W.2d 745
(1930), the Governor previously appointed all four members of the State Highway
Commission. Under a new statute, a new agency was created. The new agency
had eight members, not four, and “the power to appoint the eight commissioners
provided for by that act was taken away from the Governor and lodged with an
‘Appointing Board’ therein provided for and to consist of the Governor, Lieutenant
Governor and Attorney General.” Id. at 746.6 Those members were then
confirmed by the Senate.
The Governor challenged the act in part because, he argued, the
Lieutenant Governor’s office was primarily a legislative one. The Court rejected
any separation-of-powers violation under Sections 27 and 28 of the Kentucky
Constitution, because “the Lieutenant Governor is a member of the executive
branch of government.” Legislative Research Comm’n By and Through Prather v.
Brown, 664 S.W.2d 907, 923 (Ky. 1984) (discussing Rouse). “[T]he power of
appointment was indeed properly lodged in the commission, a part of the executive
branch of government.” Id.
6
The Lieutenant Governor, at that time, was a separately elected position. See 1992 Ky. Acts ch.
168, § 19.
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The instant legislation is similar in that the EBEC’s board under HB
334 will be composed of members appointed by executive branch officers. The
Governor distinguishes Rouse by noting that there the Governor remained as one
of the three executive branch officers on the “Appointing Board” for all eight of
the members, but under HB 334 the Governor only appoints two of the seven
members and has no say in the remaining five members. We believe this
distinction does not hold, as the Governor actually has more power under HB 334
than the Governor had in Rouse. Under HB 334 the Governor decidedly appoints
two members with no additional input from any other executive branch officer. In
Rouse, the Governor was only one of three members of the “Appointing Board,”
and the Governor could potentially have zero say in which members were
appointed if neither the Lieutenant Governor nor the Attorney General agreed with
the Governor’s choices.
Also, to the extent the Governor in his Appellee’s Brief infers that HB
334 violates his Section 76 powers, Rouse controls:
Section 76 of the Constitution confers upon the Governor
the power, “except as otherwise provided in this
Constitution,” to fill vacancies in office, but that section
should be read in connection with section 93 of the same
instrument, which says in part: “Inferior state officers,
not specifically provided for in this Constitution, may be
appointed or elected, in such a manner as may be
prescribed by law,” etc. Evidently that excerpt falls
within the inserted exception contained in section 76, and
when so considered and the two sections read together it
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would confine the vacancies mentioned in section 76 to
such officers as are created by the Constitution, and not
to the filling of vacancies in those created by the
Legislature under the provisions of the inserted excerpt
from section 93.
28 S.W.2d at 751.
The Governor also implies that without his control of the EBEC’s
board, the EBEC will become an independent, fourth branch of government, which
is not permitted. See, e.g., Brown, 664 S.W.2d at 917. Respectfully, we do not
agree. The EBEC here exists to oversee the entire executive branch, including the
Governor and all Constitutional Officers. Its membership under HB 334 is wholly
appointed by executive branch officers. In contrast, the LRC in Brown was a
service agency of the General Assembly, independent of the Governor and the
executive branch, and subject to control by the General Assembly. Id. While the
EBEC does refer to itself as an independent agency, its independence is not of the
fourth-branch ilk.
We further address the Governor’s argument that the Attorney
General made an inconsistent argument in Cameron v. Ball, Nos. 2022-CA-1419-
MR and 2022-CA-1490-MR, 2023 WL 8286690 (Ky. App. Dec. 1, 2023)
(consolidated).7 Those cases concern acts of the General Assembly that effectively
7
By separate order on a motion filed after the briefing time expired in the instant case, we
granted the Governor’s motion to cite to the Attorney General’s Reply brief in Cameron v. Ball.
-35-
prohibit the Governor from challenging legislation believed to be unconstitutional
by removing the financial means to bring such suits. On December 1, 2023, a Slip
Opinion was rendered by a panel of our Court holding that said legislation was
unconstitutional. While the Opinion in those cases is not yet final, we have
nonetheless reviewed the Attorney General’s argument in those cases and find it
neither inconsistent nor applicable to the instant case.
Those cases concerned a broad removal of the Governor’s power to
initiate challenges to legislation that the Governor deemed unconstitutional, with
the Attorney General arguing the Governor could, pursuant to Section 81 of the
Kentucky Constitution, omit to perform legislation the Governor believed was
unconstitutional, thus teeing up a constitutional challenge in Court that the
Governor could then expend funds to defend. The Governor notes that in the
instant case the Constitutional Officers have argued that Section 81 of the
Kentucky Constitution requires the Governor to abide by, not omit to follow,
enacted legislation.
The Constitutional Officers disagree that there is any inconsistency
with these two positions, claiming the Attorney General’s position in Cameron v.
Ball is simply a concession to the state of the law, which allows the Governor to
omit performance of a law he legitimately believes is unconstitutional. In the
instant case, though, the Constitutional Officers claim the Governor cannot omit
-36-
performance but must follow the instant law because the General Assembly has the
authority to determine which executive officer can appoint board members. The
Attorney General also notes that in this case the Governor is not seeking to use the
Section 81 duty to omit performance, but instead is seeking to “wield[] Section 81
to argue that it empowers him to appoint a majority of the voting members of every
board and commission in Kentucky.” Response to Motion to Supplement, p. 2.
Both parties are correct as these positions are facially inconsistent and
present a challenged nuance – is Section 81 a duty to follow the Constitution,
which requires the omission of a legislatively mandated act that is unconstitutional,
or is Section 81 a grant of power to follow the Constitution, which permits actions
contrary to a legislatively mandated act if the Governor believes the legislation is
unconstitutional? Or, perhaps, is it some mixture of both? Or neither? The facial
inconsistency at minimum proves our Supreme Court’s presaged maxim regarding
the tension between our current General Assembly and Governor, namely that
“hard cases will exist on the margins.” Stivers v. Beshear, 659 S.W.3d 313, 325
(Ky. 2022).
In some respects, the inconsistency in position is simply a matter of
viewpoint. Consider a driver who happens upon a broken-down car blocking the
roadway. The driver knows she has an obligation to drive on the right side of the
road, and she can see that a double-yellow line would prohibit passing on the left
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side. If the driver chooses to pass around the vehicle by using the left lane, has she
followed a general duty to drive safely and omitted following the double-yellow-
line passage rule? Or has she used the duty to drive safely as a power allowing her
to bypass the double-yellow-line rule? A reasonable person could entertain both
arguments with full credulity. The analogy is incomplete, as all analogies are, but
highlights the “inconsistency” here.
Indeed, the Governor’s argument in his Motion to Supplement shows
that the dual positions may be maintained. The Governor claims that per the
inconsistent positions, “the Governor must either blindly abide by unconstitutional
laws, which cannot be what Section 81 requires, or ignore the law and apply it as it
existed before HB 334 (R.S. 2022), which would create the chaotic situation of two
Ethics Commissions existing.” Motion to Supplement, 2. These extremes are
tantamount to driving through the broken-down car in our analogy and are outside
of the executive branch’s obligations. As our Supreme Court has stated, the
executive branch is not “free to disregard or refuse to enforce statutes that it
dislikes by summarily concluding that they are unconstitutional.” Stivers, 659
S.W.3d at 325. And, also, “where there is a reasonable legal argument that a
statute violates the Kentucky Constitution, the executive branch must carefully
choose how to ensure that the laws are faithfully executed.” Id. Here, the
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Governor made the reasonable choice to drive around the broken-down car and
challenge the law in Court.
We further note that while we have here considered the Attorney
General’s argument in Nos. 2022-CA-1419-MR and 2022-CA-1490-MR, we do
not pass on the merits of those consolidated cases. Instead, we hold that in this
case we believe the Constitutional Officers’ argument is responsive to the
Governor’s choice to what he perceived to be unconstitutional legislation, and it is
also not inconsistent with its position in Cameron v. Ball.
Additionally, obscured by both parties in this tangential argument is
that the issue in the instant case is acutely narrower than in Cameron v. Ball.
Namely, and as it relates to a board that oversees the ethics of all officers and
employees of the entire executive branch, our question is this: does the Governor
have Constitutional authority to appoint the majority of the EBEC board’s
members and remove any member for cause? Wrapped up in that question is the
additional nuance that the instant legislation is much less restrictive than in
Cameron v. Ball, as the Governor still retains appointive and removal power over
two of its board members.
Moreover, we note that our analysis of the narrow question is with a
strong presumption that the statute is constitutional:
Another rule of interpretation is that we “‘presum[e] that
the challenged statutes were enacted by the legislature in
-39-
accordance with constitutional requirements.’” [Beshear
v.] Acree, 615 S.W.3d [780,] 805 [(2020)] (quoting
Cornelison v. Commonwealth, 52 S.W.3d 570, 572 (Ky.
2001)). “A constitutional infringement must be ‘clear,
complete and unmistakable’ in order to render the statute
unconstitutional.” Caneyville Volunteer Fire Dep’t v.
Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 806
(Ky. 2009) (quoting Ky. Indus. Util. Customers, Inc. v.
Ky. Utils. Co., 983 S.W.2d 493, 499 (Ky. 1998)).
Considering that the General Assembly is the policy-
making body for the Commonwealth, not the Governor
or the courts, equitable considerations support enforcing
a legislative body’s policy choices.
Cameron, 628 S.W.3d at 73.
Coupling that strong presumption with the history and jurisprudence
of Sections 69 and 81, and the narrow legislation before us, we hold that HB 334
does not infringe on constitutionally derived appointive and removal powers, if
any, that the Governor possesses. We thus reverse the Trial Court’s order on this
issue.
B. Sections 27 and 28 of the Kentucky Constitution.
Next, the Governor argues HB 334 violates Sections 27 and 28 of the
Kentucky Constitution. Those Sections read:
The powers of the government of the Commonwealth of
Kentucky shall be divided into three distinct departments,
and each of them be confined to a separate body of
magistracy, to wit: Those which are legislative, to one;
those which are executive, to another; and those which
are judicial, to another.
and
-40-
No person or collection of persons, being of one of those
departments, shall exercise any power properly belonging
to either of the others, except in the instances hereinafter
expressly directed or permitted.
Those Sections may be referred to as the separation of powers. Prater
v. Commonwealth, 82 S.W.3d 898, 901 (Ky. 2002). They have existed in one form
or another in each of the Commonwealth’s three prior Constitutions and are
“designed to separate the powers of government and prevent concentrations of
power.” Id. In other words, they permit each branch of government to operate
only within their respective spheres of power. For example, the legislative branch
is to “discuss and enact laws, and to do nothing else.” Brown, 664 S.W.2d at 912
(citation omitted). And “a constitutional violation of separation of powers occurs
when, and only when, one branch of government exercises power properly
belonging to another branch.” Prater, 82 S.W.3d at 907 (emphasis in original).
Having already found HB 334 does not violate Sections 69 and 81 of
the Kentucky Constitution, however, we are left with the stark analysis of whether
HB 334 violates the separation of powers by allowing the legislative or judicial
branches to act as the executive branch. Here, HB 334 only disburses the
appointment and removal powers of the executive branch among other members of
the executive branch. HB 334 gives neither the legislative branch nor the judicial
branch any say whatsoever in which members are appointed or removed. Thus,
there is no violation of the separation of powers because, “while the legislature
-41-
may affect the executive branch’s appointments by establishing before-and-after-
the-fact parameters for the executive branch’s exercise of the power to make
appointments, the legislature cannot itself exercise the executive power of
appointment.” Prater, 82 S.W.3d at 909 (emphasis in original). HB 334 operates
by establishing the parameters, but it does not allow the legislature to exercise the
executive power of appointment. See Rouse, supra. Thus, HB 334 does not
violate Sections 27 and 28 of the Kentucky Constitution.
C. Section 93 of the Kentucky Constitution.
Finally, the Constitutional Officers argue that HB 334 is constitutional
as a legislative enactment because it was enacted pursuant to Section 93. As we
have previously discussed, Section 93 does impose upon the General Assembly the
authority to legislate whether inferior state officers and members of boards and
commissions are appointed or elected. See Brown, 664 S.W.2d 921-23. That
authority, however, is restrained by other Sections of the Kentucky Constitution.
See id. at 923-24. Thus, simply being a Section 93 enactment is not decisive of the
instant issues. We have analyzed HB 334 and find no violation of Sections 69, 81,
27, and 28 of the Kentucky Constitution. This case is reversed and remanded for
entries of orders consistent with this Opinion and Order.
CONCLUSION
Our holdings and orders in the above-styled cases are as follows:
-42-
In Nos. 2022-CA-0837-MR and 2022-CA-0838-MR, we REVERSE
AND REMAND the Trial Court’s Order for entry of an order consistent with this
Opinion and Order.
In No. 2022-CA-0991-MR, we REVERSE AND REMAND the Trial
Court’s Order for entry of an order dismissing the LRC with prejudice.
In No. 2022-CA-0991-MR, we DENY the Governor’s motion to
dismiss.
And in No. 2022-CA-0991-MR, we DENY the Attorney General’s
motion for leave to file an amicus brief.
JONES, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS AND FILES SEPARATE OPINION.
ENTERED: _March 1, 2024__
JUDGE, COURT OF APPEALS
COMBS, JUDGE, CONCURRING: Mindful of the mandate of SCR8 1.030(8)(a)
that we follow the precedent of the Kentucky Supreme Court, I write this
concurrence rather than a dissent from the majority Opinion.
It appears that we are inescapably bound by the reasoning and holding
of Brown v. Barkley, 628 S.W. 2d 616 (Ky. 1982). Now forty-two years of age, it
8
Kentucky Supreme Court Rules.
-43-
has been affirmed numerous times over the years for the proposition that the
powers of the chief executive, the Governor, are circumscribed and dictated both
by the Constitution and by the fiat of the General Assembly. During the oral
argument on the case currently before us, counsel for the Attorney General
confidently declared that Brown amounted essentially to an impenetrable fortress
that could not -- and should not -- be re-visited by our Supreme Court.
With that declaration, I respectfully disagree. I would hope that this
critically important case involving the very heart of the sacrosanct doctrine of
separation of powers will receive a thoughtful and serious review by our Supreme
Court. Obviously, many years have passed since Chief Justice Palmore authored
Brown. Many political winds -- both ill and fair -- have blown over the
Commonwealth since 1982. We have recently seen a proliferation of cases, at least
four major appeals, within the last eighteen months, involving restraints imposed
by the legislature on the exercise of executive powers by the Governor. In some
form or other, these cases all constitute an incremental but insistent incursion by
the legislative branch into the authority of the executive.
At the heart of the case before is the issue laid out in Section 69 of the
Kentucky Constitution: what indeed is the essence of its grant of “the supreme
executive power of the Commonwealth” to the Governor? How far can that
“supreme executive power” be diluted, dispersed, distributed, or diverted under the
-44-
presumed precedent of Brown? How many limitations can be imposed
legislatively without vitiating that authority to the point of a practical, de facto
nullity in violation of Sections 27 and 28 of the same Kentucky Constitution? A
balance among these various sections of the Constitution needs to be sought and
judicially defined in order to preserve the guarantee that the spirit as well as the
letter of the Constitution will be preserved, protected, and defended.
The recent barrage of litigation on this critical issue convinces me that
review by the Supreme Court is indeed both needed and warranted.
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BRIEFS FOR LEGISLATIVE BRIEF FOR ANDY BESHEAR,
RESEARCH COMMISSION: GOVERNOR:
Gregory A. Woosley S. Travis Mayo
Frankfort, Kentucky Taylor Payne
Frankfort, Kentucky
BRIEFS FOR RUSSELL COLEMAN,
ATTORNEY GENERAL: Mitchel T. Denham
Louisville, Kentucky
Matthew F. Kuhn
Harrison Gray Kilgore BRIEF FOR DAVID KAREM,
Frankfort, Kentucky MEMBER, EXECUTIVE BRANCH
ETHICS COMMISSION:
BRIEFS FOR MICHAEL ADAMS,
SECRETARY OF STATE: Mitchel T. Denham
Louisville, Kentucky
Jennifer Scutchfield
Michael R. Wilson BRIEF FOR EXECUTIVE BRANCH
Frankfort, Kentucky ETHICS COMMISSION:
BRIEFS FOR JONATHAN SHELL, Susan Stokley Clary
COMMISSIONER OF Frankfort, Kentucky
AGRICULTURE:
ORAL ARGUMENT FOR ANDY
Joseph A. Bilby BESHEAR, GOVERNOR, AND
Frankfort, Kentucky DAVID KAREM, MEMBER,
EXECUTIVE BRANCH ETHICS
BRIEFS FOR MARK METCALF, COMMISSION:
TREASURER:
Mitchel T. Denham
Brittany J. Warford Louisville, Kentucky
Frankfort, Kentucky
BRIEFS FOR ALLISON BALL,
AUDITOR:
Graham Gray
Frankfort, Kentucky
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ORAL ARGUMENT FOR
LEGISLATIVE RESEARCH
COMMISSION:
Gregory A. Woosley
Frankfort, Kentucky
ORAL ARGUMENT FOR RUSSELL
COLEMAN, ATTORNEY
GENERAL:
Matthew F. Kuhn
Frankfort, Kentucky
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