Andy Beshear, in His Official Capacity as Governor v. Jonathan Shell, in His Official Capacity as Commissioner of the Department of Agriculture

• Court: Kentucky Supreme Court
• Decided: June 25, 2026
• Docket: 2024-SC-0256
• Status: Published

Opinion

RENDERED: JUNE 25, 2026 TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0228-DG

ANDY BESHEAR, IN HIS OFFICIAL APPELLANTS CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY; AND DAVID KAREM, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE EXECUTIVE BRANCH ETHICS COMMISSION

ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-0837 JEFFERSON CIRCUIT COURT NO. 22-CI-002228

RUSSELL COLEMAN, IN HIS OFFICIAL APPELLEES CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY; MICHAEL G. ADAMS, IN HIS OFFICIAL CAPACITY AS KENTUCKY SECRETARY OF STATE; ALLISON BALL, IN HER OFFICIAL CAPACITY AS STATE AUDITOR OF PUBLIC ACCOUNTS; JONATHAN SHELL, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF AGRICULTURE; EXECUTIVE BRANCH ETHICS COMMISSION; LEGISLATIVE RESEARCH COMMISSION; AND MARK H. METCALF, IN HIS OFFICIAL CAPACITY AS KENTUCKY STATE TREASURER

AND 2024-SC-0254-DG

JONATHAN SHELL, IN HIS OFFICIAL APPELLANTS CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF AGRICULTURE; COMMONWEALTH OF KENTUCKY, EX REL. ATTORNEY GENERAL RUSSELL COLEMAN; MARK LYNN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE STATE FAIR BOARD; DAVID W. OSBORNE, IN HIS OFFICIAL CAPACITIES AS A MEMBER OF THE STATE FAIR BOARD AND SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES; AND BERTRAM R. STIVERS, II, IN HIS OFFICIAL CAPACITIES AS A MEMBER OF THE STATE FAIR BOARD AND PRESIDENT OF THE KENTUCKY STATE SENATE

ON APPEAL FROM COURT OF APPEALS V. NOS. 2021-CA-1459, 2021-CA-1503, & 2022-CA-0020 JEFFERSON CIRCUIT COURT NO. 21-CI-002234

ANDY BESHEAR, IN HIS OFFICIAL APPELLEES CAPACITY AS GOVERNOR; AND SECRETARY LINDY CASEBIER, IN HIS OFFICIAL CAPACITIES AS SECRETARY OF THE KENTUCKY TOURISM, ARTS AND HERITAGE CABINET, AND AS A MEMBER OF THE STATE FAIR BOARD

AND 2024-SC-0256-DG

ANDY BESHEAR, IN HIS OFFICIAL APPELLANTS CAPACITY AS GOVERNOR; AND SECRETARY LINDY CASEBIER, IN HIS OFFICIAL CAPACITIES AS SECRETARY OF THE KENTUCKY TOURISM, ARTS, AND HERITAGE CABINET, AND AS A MEMBER OF THE STATE FAIR BOARD

2 ON APPEAL FROM COURT OF APPEALS V. NOS. 2021-CA-1459, 2021-CA-1503, & 2022-CA-0020 JEFFERSON CIRCUIT COURT NO. 21-CI-002234

JONATHAN SHELL, IN HIS OFFICIAL APPELLEES CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF AGRICULTURE; COMMONWEALTH OF KENTUCKY, EX REL. ATTORNEY GENERAL RUSSELL COLEMAN; MARK LYNN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE STATE FAIR BOARD; DAVID W. OSBORNE, IN HIS OFFICIAL CAPACITIES AS A MEMBER OF THE STATE FAIR BOARD AND SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES; AND BERTRAM R. STIVERS, II, IN HIS OFFICIAL CAPACITIES AS A MEMBER OF THE STATE FAIR BOARD AND PRESIDENT OF THE KENTUCKY STATE SENATE

OPINION OF THE COURT BY JUSTICE KELLER

REVERSING IN PART AND AFFIRMING IN PART AS MODIFIED

These consolidated cases arise from challenges brought by the Governor

of the Commonwealth against the Attorney General, the Commissioner of

Agriculture, the Executive Branch Ethics Commission (“EBEC”), the Kentucky

State Fair Board (“Fair Board”), and other state officials responsible for

implementing recent legislative enactments altering the structure of executive

boards. The disputes center on House Bill (“HB”) 334 and HB 518, through

which the General Assembly redistributed appointment authority among the

Governor, the Attorney General, the Commissioner of Agriculture, the Auditor

of Public Accounts, and other constitutional officers, while modifying oversight

of the Executive Branch Ethics Commission and the Kentucky State Fair

Board. The Governor contends that these enactments impermissibly intrude

3 upon the executive power vested in the office, while the Appellees maintain that

the Legislature acted within its constitutional authority to prescribe the

manner of appointment for statutory offices. The question presented is not

whether the Legislature may participate in shaping the composition of

statutory bodies. It may. The question is whether it may do so in a manner

that restructures executive authority such that the supreme executive officer

no longer retains sufficient control to ensure the faithful execution of the laws.

FACTUAL AND PROCEDURAL BACKGROUND

During the 2021 Regular Session of the General Assembly, HB 518 was

introduced and referred to committee for consideration. The bill proceeded

through both chambers, where it was amended and passed by the House and

Senate. It was presented to the Governor, who returned it with a veto. The

General Assembly thereafter reconsidered the measure and, pursuant to its

constitutional authority, voted to override the veto. HB 518 was enacted into

law and became effective in accordance with its terms as Kentucky Revised

Statutes (“KRS”) 247. The Governor, joined by the Secretary for the Kentucky

Tourism, Arts, and Heritage Cabinet, subsequently filed an action in Jefferson

Circuit Court challenging the constitutionality of HB 518.

HB 518 (“Fair Board Act”) reorganizes the Fair Board by altering the

composition and appointment structure of its board of directors, which

consists of fifteen voting members. The Fair Board Act transfers a majority of

the appointment authority—eight members—to the Commissioner of

Agriculture, while the Governor retains authority to appoint the remaining

4 seven members. It also designates the President of the Senate and the Speaker

of the House, or their designees, as ex officio, nonvoting members of the Board.

The Fair Board Act establishes the Board as an independent de jure

municipal corporation attached to the Tourism, Arts, and Heritage Cabinet for

administrative purposes, requires it to provide reports and financial

disclosures, and authorizes the Board’s voting members to elect their own chair

and officers. In addition, the Fair Board Act includes transition provisions

affecting the timing and replacement of expiring terms, limiting the Governor’s

ability to fill certain vacancies during implementation of the new structure.

Later, during the 2022 Regular Session of the General Assembly, the

subject of the additional challenge herein was created via HB 334. HB 334

(“EBEC Act”) restructures the Executive Branch Ethics Commission by

redistributing appointment authority. Initially, the board was composed of five

gubernatorially appointed members with staggered, four-year terms. Among

the changes, EBEC would expand from a five-member to a seven-member body.

KRS 11A.060(2). The Governor would make two appointments, while the

Attorney General, Agriculture Commissioner, Treasurer, Auditor, and Secretary

of State (together, “the Constitutional Officers”) would each make one

appointment. KRS 11A.060(2)(a-e). Only the Constitutional Officer who

appointed the EBEC member could remove him or her. KRS 11A.060(7).

Additionally, HB 334 terminated the unexpired terms of the current members

and provided for some shorter terms of certain initial members so that

members of the EBEC board would ultimately have staggered, four-year terms.

5 KRS 11A.060(3). Lastly, it prevents any reorganization of itself “except by

statute.” KRS 11A.060(11).

The Commission retains its statutory role overseeing ethical conduct for

thousands of executive branch officials and employees, including administering

financial disclosure requirements, investigating complaints, and enforcing the

Executive Branch Code of Ethics, but the authority to select and remove its

members would be divided among six independently elected officers.

Although enacted in different legislative sessions, both measures employ

similar structural mechanisms to redistribute appointment authority within

executive entities. The procedural history reflects the constitutional conflict.

In Coleman v. Beshear, the Franklin Circuit Court held that the EBEC

Act unconstitutionally fragmented executive authority. The Court of Appeals

reversed, concluding that the Legislature’s authority under Section 93

permitted the redistribution of appointment power. In Shell v. Beshear, the

Franklin Circuit Court likewise invalidated portions of the Fair Board Act, and

the Court of Appeals affirmed that result in part, though on narrower grounds.

These decisions present a direct conflict regarding the scope of legislative

authority and the meaning of executive power under the Kentucky

Constitution.

We granted discretionary review to resolve that conflict and to clarify the

constitutional boundaries governing appointment structures within the

executive branch. The question is not whether the Governor must control

every aspect of executive action, but whether the statutory structure preserves

6 a constitutionally sufficient chain of accountability through which the

Governor may fulfill his or her duty to ensure faithful execution.

The Kentucky Constitution answers that question through its own

structure. Sections 27 and 28 mandate a strict separation of powers among

the legislative, executive, and judicial branches. Section 69 vests the “supreme

executive power” in the Governor, and Section 81 commands that he “shall

take care that the laws be faithfully executed.” Section 93 permits the General

Assembly to prescribe the “manner” of appointment of inferior officers. These

provisions must be read together. The Legislature’s authority to prescribe

appointment mechanisms exists within—and not apart from—the

Constitution’s structural allocation of power.

For the reasons that follow, we hold that the statutory schemes at issue

exceed the Legislature’s authority because they restructure executive

governance in a manner that eliminates meaningful executive supervision, in

violation of Sections 27, 28, 69, and 81 of the Kentucky Constitution.

ANALYSIS

“Our present constitution contains explicit provisions which, on the one

hand, mandate separation among the three branches of government, and on

the other hand, specifically prohibit incursion of one branch of government into

the powers and functions of the others.” Legislative Research Comm'n ex rel.

Prather v. Brown, 664 S.W.2d 907, 912 (Ky. 1984) [hereinafter LRC]. Section

7 93 addresses procedure. Sections 27 1 and 28 2 impose structural limits.

Section 69 3 vests the “supreme executive power” in the Governor. Additionally,

Section 81 commands that the Governor “shall take care that the laws be

faithfully executed.” Procedure does not override structure.

This case does not ask whether executive authority may be distributed.

Kentucky's Constitution plainly permits such distribution. It asks whether it

may be distributed in a manner that destroys the accountability necessary to

give effect to Sections 69 and 81. We conclude that it may not.

The question is not executive supremacy, but constitutional structure.

Once the constitution vests executive authority in the executive branch, the

General Assembly may not reengineer that structure so that accountability is

dissolved. To redesign and displace or diffuse authority unsettles the rigid

separation embodied in Sections 27 and 28. The constitution does not require

that the Governor personally exercise all executive authority. It does require

that the structure of executive governance preserve a chain of accountability

1 “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.” KY. CONST. § 27 (emphasis added). 2 “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. KY. CONST. § 28 (emphasis added). 3 “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.” KY. CONST. § 69 (emphasis added).

8 sufficient to allow the discharge of the Governor’s constitutional duty to ensure

the faithful execution of the laws. Accountability cannot survive fragmentation.

Kentucky’s separation-of-powers provisions were adopted as mandatory

structural restraints—not flexible standards to be balanced against legislative

preference. The framers rejected blended models of governance and imposed

categorical divisions. Separation of powers is not a policy factor. It is a

boundary.

HB 518 and HB 334 leave no sufficient appointment and removal

authority to ensure faithful execution by the constitutional supreme executive.

A constitutional duty without meaningful supervisory power is not

accountability—it is ceremony. The constitution does not create ceremonial

executives. It creates accountable ones. Section 93 authorizes legislative

prescription of appointment mechanisms, but it does not permit the General

Assembly to fragment executive authority in a manner that defeats

accountability within the executive branch. Conversely, while Sections 69 and

81 require that executive power remain capable of faithful execution, they do

not confer upon the Governor exclusive control over all statutory appointments.

Relevant to this, the State Fair Board hosts dozens of internationally

recognized conventions, expositions, and events that attract tourism, millions

of dollars in revenue, and numerous other economic benefits to the

Commonwealth. The Governor’s ability to effectively lead executive branch

functions relating to economic development of the Commonwealth is

significantly hindered by the appointment scheme set forth in HB 518.

9 Similarly, the Governor’s role as supreme authority over the executive branch

and his or her duty to ensure faithful execution of the laws is also significantly

undercut by the appointment scheme set forth in HB 334. Thus, while there

may be appointment schemes to other executive branch boards that pass

constitutional muster, we conclude that HB 518 and HB 334

unconstitutionally interfere with the Governor’s powers and duties under

Sections 69 and 81.

I. STRUCTURAL LIMITS GOVERN LEGISLATIVE AUTHORITY

The Constitution is not a collection of isolated clauses. It is an

integrated structure. Section 93 permits the Legislature to prescribe the

manner of appointment of inferior officers. But Sections 27 and 28 impose

categorical limits on how far that prescription may go.

The structure at issue will not operate only under present leadership. It

will provide the architecture that must be occupied by present and future

occupants. Constitutional structure does not fluctuate with circumstances; it

is designed precisely to remain stable when circumstances do not. Separation

of powers protects against the concentration or diffusion of authority regardless

of who holds office. Its safeguards apply symmetrically, not situationally.

Constitutions exist precisely because political advantage is fleeting. If

structural safeguards bend whenever power tempts them, they will not stand

when they are needed most.

As this Court explained in Legislative Research Commission v. Brown,

Kentucky’s Constitution adopts a “double-barreled” separation of powers—

10 affirmatively dividing authority and negatively prohibiting encroachment. 664

S.W.2d 907, 911–12 (Ky. 1984). That structure controls.

While statutes are entitled to a presumption of constitutionality, that

presumption does not permit courts to uphold enactments that structurally

contravene express constitutional boundaries. HB 334 and HB 518 disperse

appointment authority across multiple constitutional officers, fragmenting

removal authority accordingly. The Governor does not appoint a majority. The

Governor does not control removal. And no sufficient chain of accountability

exists through which the Governor may fulfill the constitutional duty to ensure

faithful execution.

That is not prescription of “manner.” It is redistribution of power.

The defect lies not in dispersal alone, but in dispersal combined with the

absence of meaningful supervisory authority. The constitution permits

variation in appointment without the elimination of accountability.

II. EXECUTIVE POWER REQUIRES MEANINGFUL SUPERVISION

Section 69 vests the “supreme executive power” in the Governor. Section

81 requires that the Governor ensure the faithful execution of the laws. These

provisions presuppose that executive authority includes the power to supervise

those who execute the law. A constitutional duty without corresponding

authority is illusory. Without the ability or authority to direct, discipline, or

remove those charged with execution, the duty to “take care” becomes

ceremonial.

11 It is true that removal authority must be expressly conferred. Votteler v.

Fields, 23 S.W.2d 588 (Ky. 1926). But the constitution forbids a statutory

structure in which no sufficient removal authority exists to ensure

accountability in the supreme executive. Supervision without removal is not

supervision—it is observation. The fact that the Governor appoints some

members or may seek judicial relief does not establish the authority necessary

to ensure faithful execution of his or her executive duties. Those mechanisms

provide participation, information, and access. They do not preserve the chain

of accountability through which the Governor must discharge the duty imposed

by Section 81.

The constitution does not permit structural convenience. Section 27

divides governmental power into three distinct departments. Section 28 forbids

one department from exercising power properly belonging to another. Those

provisions are not symbolic but structural restraints. Section 81 commands

the Governor “shall take care that the laws be faithfully executed.” That

command presupposes something indispensable: executive authority capable of

supervision and control.

A government cannot function through a constellation of uncoordinated

officers. Executive authority requires a central leader, not a diffusion of

officers operating without meaningful supervision. Unlike the dissent, we

decline to conflate the Attorney General's authority to enforce the law with the

Governor's duty to ensure that the laws are faithfully executed. They are not

the same. The Attorney General, like the Treasurer, Secretary of State,

12 Commissioner of Agriculture, and other constitutional officers, exercises

important powers assigned to that office by the Constitution and laws of the

Commonwealth. But if the existence of authority within those offices were

sufficient to satisfy Section 81, then the Governor's unique constitutional duty

would have no independent meaning. Under that reasoning, the Attorney

General's enforcement authority could substitute for the Governor's duty.

Likewise, the Treasurer's authority over public funds could substitute for it, or

the Secretary of State's authority over elections and public records, for that

matter. The Constitution contemplates no such interchangeability of

constitutional responsibilities. The Constitution assigns important

responsibilities to multiple executive officers, but it assigns only one officer the

obligation to ensure faithful execution across the entire executive branch.

HB 518 and HB 334 disperse appointment authority over executive

boards, the Ethics Commission, and the State Fair Board, in a manner that

deliberately fragments executive supervision. The Governor is left without

meaningful authority over the execution of laws entrusted to these entities,

insulating those entities from executive accountability. This is not mere

legislative prescription under Section 93. Section 93 allows the Legislature to

prescribe the manner of appointment of inferior officers. 4 That is strictly

4 Section 93 of the Kentucky Constitution, titled “Succession of elected

Constitutional State Officers; duties; inferior officers and members of boards and commissions,” reads “The Treasurer, Auditor of Public Accounts, Secretary of State, Commissioner of Agriculture, Labor and Statistics, and Attorney General shall be ineligible to reelection for the succeeding four years after the expiration of any second consecutive term for which they shall have been elected. The duties and responsibilities of these officers shall be prescribed by law, and all fees collected by 13 procedural and must be read in harmony with Sections 27 and 28. It does not

authorize the Legislature to restructure executive power in a manner that

eliminates a constitutionally sufficient chain of accountability for the faithful

execution of the laws. Sections 27 and 28 govern structure. Section 93

governs method. Structure controls.

The framers of Kentucky’s four constitutions obviously were cognizant of the need for the separation of powers. Unlike the federal constitution, the framers of Kentucky’s constitution included an express separation of powers provision. They were undoubtedly familiar with the potential damage to the interests of the citizenry if the powers of government were usurped by one or more branches of that government. Our present constitution contains explicit provisions which, on the one hand, mandate separation among the three branches of government, and on the other hand, specifically prohibit incursion of one branch of government into the powers and functions of the others. Thus, our constitution has a double- barreled, positive-negative approach: Section 27 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. (Emphasis added.) Section 28 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. Subsequent provisions of the Constitution proceed logically and consistently with the policy established in Sections 27 and 28 that grant powers to the three branches of government. Section 29 vests the legislative power in the

any of said officers shall be covered into the treasury. 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 law, which may include a requirement of consent by the Senate, for a term not exceeding four years, and until their successors are appointed or elected and qualified.” (emphasis added).

14 General Assembly, Section 69 vests the executive power in the Governor.

LRC, 664 S.W.2d at 911–12.

HB 334 Fractures Executive Authority. That Kentucky employs

multiple constitutional executive officers does not negate the Constitution’s

vesting of “supreme executive power” in the Governor; diffusion among officers

is permissible, but dissolution of accountability is not. KY. CONST. § 69. Section

93 permits the Legislature to prescribe the manner of appointment, including

the identity of appointing authorities, but it does not authorize the Legislature

to exercise that power in a way that defeats the Constitution’s structural

allocation of executive authority. This Court does not suggest that the

Governor must control all executive decision-making, only that the

Constitution does not permit a structure in which no chain of accountability

retains sufficient authority to ensure faithful execution.

HB 334 disperses appointment power across multiple constitutional

officers and fragments removal authority accordingly. 5 That is not “manner.”

That is redistribution. Executive power includes supervision. (KY. CONST. §§

81, 69). This Court has recognized that removal authority does not arise by

implication from appointment but must be explicit. See Votteler v. Fields, 23

S.W.2d 588 (Ky. 1926). But the question here is not whether appointment

implies removal; it is whether the constitution’s express command that the

5 KRS 11A.060(7) as amended by HB 334 reads, “Members of the commission

shall be removed by the appointing authority who appointed him or her.”

15 Governor ensure faithful execution can be rendered ineffective by statutory

design. A constitutional duty without corresponding supervisory authority

would be illusory. The statutory scheme of HB 334 fails to account for the

practical reality of its application. Executive supervision requires meaningful

control. This statute’s design deprives the Governor of both removal authority

and majority appointment control, leaving him or her without meaningful

supervisory tools to discharge the Section 81 duty. The constitution does not

assign responsibility while permitting the Legislature to eliminate the tools

necessary to discharge it.

Section 69 vests the “supreme executive power” in the Governor. Section

81 commands that the Governor “shall take care that the laws be faithfully

executed.” These provisions are not ornamental. The duty to ensure faithful

execution presupposes authority sufficient to make that duty real. A

constitutional command without corresponding supervisory power would

reduce the executive to an observer rather than an officer. Meaningful

execution requires meaningful control. Meaningful control relies upon the

ability to direct, discipline, or remove those charged with execution, without

which the structural design embodied in Sections 69 and 81 is defeated. This

conclusion does not rest on implied powers, but on the structural relationship

between express constitutional provisions, which require that the duty imposed

by Section 81 be matched by authority sufficient to discharge it.

This case does not concern whether the Governor possesses a general

power to appoint inferior officers. It concerns whether the Legislature may

16 structure executive authority so that no chain of accountability remains to

ensure the faithful execution of the laws.

The historical limitation of some appointment power does not authorize

the elimination of executive accountability. The 1850 constitution provided, for

the first time, for the direct election by the people:

A treasurer shall be elected by the qualified voters of the State, for the term of two years; and an Auditor of Public Accounts, Register of the Land Office, and Attorney General, for the term of four years. The duties and responsibilities of these officers shall be prescribed by law: Provided, that inferior State officers, not specially provided for in this Constitution, may be appointed, or elected, in such manner as shall be prescribed by law, for a term not exceeding four years.

This was carried through to our present constitution, which, while continuing

to distribute authority among constitutional officers, specifically retained

Sections 69 and 81, preserving the Governor's role as the Commonwealth's

supreme executive and the officer responsible for ensuring the faithful

execution of the laws. The Constitution does not require appointment or

removal authority take any particular form. It does require that it exist in

substance.

In Yeoman v. Commonwealth Health Policy Board, the Kentucky General

Assembly enacted sweeping healthcare reform legislation, creating entities like

the Health Policy Board and Health Purchasing Alliance. 983 S.W.2d 459 (Ky.

1998). Members of these bodies were appointed by the Governor, and the

governing statute vested appointment authority exclusively in the Governor,

although opponents alleged that outside organizations had influenced the

selection process. The issue was whether statutory schemes allowing outside 17 influence in nominations and structuring of executive boards violated Sections

27, 28, or 69 by improperly delegating executive power or limiting the

Governor’s authority. That scheme was held valid because the Governor

retained ultimate appointment authority.

Further, Kentucky Association of Realtors, Inc. v. Musselman decided

whether requiring the Governor to appoint from a list provided by a private

organization violated Section 69 by restricting executive appointment authority.

817 S.W.2d 213 (Ky. 1991). Because the governor could reject the entire list,

demand a new list, and continue rejecting all names submitted until the list

included a person whom the Governor deems suitable, the appointment power

remained with the Governor. The statute was found constitutional because it

did not control executive decision-making or allow for the removal of executive

discretion but merely demonstrated a tolerance of procedural constraints.

Additionally, Section 76 confirms the opposite of what Appellants

suggest. That provision addresses a narrow and specific circumstance—the

temporary filling of vacancies in offices created by the Constitution—and

expressly operates “except as otherwise provided.” It is not a general grant of

executive authority and does not define the scope of the Governor’s supervisory

power. The question here is not who may fill a vacancy, but whether the

Legislature may structure executive authority absent sufficient control to

ensure the faithful execution of the laws, ending with the supreme

constitutional executive. The transition provision barring the Governor from

filling voting-member terms expiring in 2021 suffers from the same

18 constitutional defect. It was not a neutral timing rule but operated as part of

the statutory design transferring effective appointment control away from the

Governor.

HB 334 fractures executive authority and breaks the chain of executive

accountability that Sections 27, 28, and 81 were designed to preserve.

Separation of powers does not allow that.

HB 518 Embeds Legislative Proximity to Execution. HB 518 declares

the Fair Board “accountable” to the General Assembly. 6 But separation of

powers guards against structural proximity to execution—not merely overt

legislative control.

This Court struck down the Legislative Research Commission’s attempt

to review, approve, or otherwise influence executive branch actions. LRC, 664

S.W.2d at 930-31. Our precedent has warned against such “latitudinous

construction” – an overly expansive reading of legislative authority that would

“destroy the separation of the powers of government” in Sibert v. Garrett, 246

S.W. 455, 457 (Ky. 1922), and recognized that the Legislature cannot exercise

executive functions even if it created the office in Pratt v. Breckinridge, 65 S.W.

136 (Ky. 1901).

6 KRS 247.100(4) as amended by HB 518 reads, “It is the intent of the General

Assembly that the State Fair Board shall be accountable to the Governor, the Commissioner of Agriculture, the General Assembly, and the people of the Commonwealth through a system of audits, reports, and thorough financial disclosures.”

19 Early cases such as Pratt and Sibert recognized that separation of powers

in Kentucky is structural, not merely functional. Whether or not those cases

addressed different factual circumstances, they reflect a consistent principle:

that one branch may not exercise power in a manner that displaces the

constitutional function of another. That principle was reaffirmed—not

altered—by LRC. 664 S.W.2d at 912.

Constitutional boundaries must be enforced even when the Legislature

acts within broad authority, as this Court has repeatedly emphasized

structural enforcement over functional tolerance. Commonwealth ex rel.

Stephens v. S. Cent. Bell Tel. Co., 545 S.W.2d 927, 931 (Ky. 1976). 7 The

constitution permits legislative oversight through reporting and appropriations

but not a statutory scheme that displaces executive supervision while

rhetorically tethering the entity to the Legislature.

LRC condemned indirect mechanisms that enabled legislative

participation in executive governance. 664 S.W.2d at 918-20. While reporting

and audit requirements are constitutionally permissible exercises of legislative

oversight, a statutory scheme that strips the Governor of appointment and

removal authority while declaring the entity accountable to the General

7 The Legislature enacted a law allowing the courts to “vacate or set aside orders

or provide injunctive relieve in the manner and upon the terms, ‘provided by law.’ . . . We read the legislative mandate as directing us to keep our judicial fingers out of the ratemaking pie except to the degree that the constitutions require our intervention.” Stephens, 545 S.W.2d at 931.

20 Assembly displaces executive supervision for legislative influence. The

constitution permits oversight; it does not permit substitution.

When the Legislature removes gubernatorial majority appointment,

removes gubernatorial removal authority, insulates the board from executive

direction, and then declares the board “accountable” to the General Assembly,

it creates a body that is functionally independent of the constitutional

executive and rhetorically tethered to the Legislature. That is structural

realignment of accountability. HB 518 structurally blurs the lines that legal

precedent insists remain distinct.

The conclusion does not change because legislative members are

designated “nonvoting.” The exercise of executive power is not confined to

formal votes. Structural placement within an executive body itself constitutes

participation in the execution of the law. LRC rejected not only direct

legislative control, but also indirect mechanisms that permit legislative

involvement in executive governance. 664 S.W.2d at 918-20. The constitution

forbids legislative proximity to execution—not merely legislative domination of

it.

Legislators cannot sit ex officio on executive boards. But if legislators

cannot sit ex officio on executive boards, neither can they embed themselves

through structural “accountability” language that invites oversight beyond

appropriations and reporting. The ambiguity embedded in the statute lies

waiting to be exploited in ways that blur the constitutional boundary between

legislation and execution. When it restructures executive governance so that

21 no chain of accountability exists to allow the supreme executive opportunity to

ensure faithful execution, it has intruded into executive power, even if no

legislator sits on the board.

The provision of KRS 247.110(1) allowing the board’s voting members to

elect their own chair and vice chair is not unconstitutional in isolation. It

cannot stand here, however, because the voting membership itself is

unconstitutionally constituted. A board selected through an unconstitutional

appointment structure cannot validly exercise statutory authority to select its

leadership. Separation of powers is concerned with structure, not labels, and

the substance governs. City of Louisville v. German, 150 S.W.2d 931, 935 (Ky.

1940) (examining beyond the formal statutory label and evaluating the actual

operation and practical effect of the statutory scheme rather than its nominal

designation, confirming that constitutional analysis and validity depends on

substance, not labels). The separation of powers does not require equality of

power among the branches. It requires that each branch retain the functional

capacity to perform its constitutionally assigned role. Additionally, the

constitution does not make executive authority contingent upon legislative

grace. While the Legislature may define statutory offices, it cannot condition

the existence of executive supervision on its own discretion where the

constitution assigns responsibility for execution to the executive branch.

Fidelity to Stare Decisis is Not Optional. Stare decisis is not a

convenience, but a constraint that ensures stability, predictability, and

discipline. In LRC, this Court refused to interpret Brown v. Barkley, 628

22 S.W.2d 616 (Ky. 1982) [hereinafter Brown] as a license for legislative

dominance. 664 S.W.2d at 922–23 (Ky. 1984). It warned that such a reading

would effectively eliminate separation of powers. 664 S.W.2d at 922.

Contrary to the assertion of the dissent, LRC made clear that Brown

recognizes legislative power only—legislative power—not residual authority over

executive structure. Id. at 923. Separation of powers means the Legislature

cannot restructure executive authority simply because it created the office. If it

could, Sections 27 and 28 would mean nothing. Brown cannot be expanded

beyond its holding to justify structural dilution that LRC would not tolerate.

Brown v. Barkley recognized that the Legislature may prescribe manner

of appointment for statutory offices. 628 S.W.2d 616 (Ky. 1982). But the power

identified in Brown is legislative power—and legislative power only. Brown and

LRC are not in conflict. While Brown recognizes that executive power may be

distributed among constitutional officers, it does not authorize the Legislature

to structure that distribution in a manner that eliminates unified executive

accountability. 628 S.W.2d at 622-624. Legislative power does not extend to

reengineering the constitutional structure of the executive branch. Read in

light of LRC, Brown does not authorize the Legislature to dismantle executive

supervision or diffuse responsibility so completely that no authority remains

with the supreme executive to ensure faithful execution. Diffusion of executive

tasks is not equivalent to dissolution of executive accountability.

23 III. STRUCTURAL VIOLATIONS REQUIRE NO SHOWING OF HARM

The Constitution tolerates limited overlap between branches, particularly

in areas such as oversight and appropriations. It does not permit structural

arrangements that displace or neutralize a branch’s ability to perform its core

constitutional function. Whether the Governor has shown a “concrete and

substantial detriment” is not the constitutional standard. Separation of powers

is violated when the structure is compromised—not when dysfunction is

measurable. LRC did not wait for operational collapse before enforcing

separation. 664 S.W.2d at 931. It enforced the boundary because the

Constitution commands it. Structural boundaries are enforced at the point of

encroachment—not after injury has occurred. Id. 919.

IV. SEVERABILITY DOES NOT SAVE THE STATUTES

The unconstitutional features of HB 334 and HB 518 are not incidental.

They are structural. KRS 446.090 favors severability, but severability is

unavailable when the remaining provisions are inseparably connected with the

unconstitutional design or incapable of execution consistent with legislative

intent. Here, the appointment shift, transition provision, independent

structure, and legislative-accountability language operate together; removing

only the most obvious constitutional defects would preserve the architecture of

displacement while pretending to cure it. The redistribution of appointment

and removal authority is not peripheral; it is the design.

Sections 27 and 28 of the Kentucky Constitution impose a strict and

categorical separation of powers. Section 69 vests the “supreme executive

24 power” in the Governor. Section 81 commands that the Governor “take care

that the laws be faithfully executed.” These provisions are structural, not

aspirational. They require that executive power remain sufficiently unified to

permit accountability. HB 518 and HB 334 do not merely adjust appointment

procedures; they restructure executive power in a manner that dissolves

accountability and blurs the constitutional boundaries the framers imposed.

The fragmentation of executive supervision and the embedding of

legislative proximity are integral to the statutory scheme. Removing isolated

provisions would not restore constitutional structure. The defect is

architectural, not textual. Accordingly, the unconstitutional provisions are not

severable.

The Constitution separates powers. It does not diffuse them beyond

recognition. It does not permit one branch to redesign another. And it does not

tolerate structures that render constitutional duties unenforceable. That

structural reallocation exceeds the Legislature’s authority and violates the

CONCLUSION

We do not hold that the Governor must appoint every member of every

executive board; we hold only that the Legislature may not structure an

executive board in a manner that will not preserve a chain of accountability

through which the Governor may fulfill his or her duty to ensure faithful

execution. Therefore, we affirm, in part, the result in Shell, though on

structural grounds embedded in Sections 27, 28, 69, and 81, and hold HB 518

25 unconstitutional and inseverable. We reverse Coleman, which upheld a

statutory scheme that impermissibly fragments executive authority.

All sitting. Bisig, Goodwine, and Thompson, JJ., concur. Conley, J.,

concurs in part and dissents in part by separate opinion which Lambert, C.J.;

and Nickell, J., join.

CONLEY, J., CONCURRING IN PART AND DISSENTING IN PART: With

due respect, I agree with the Court that HB 518 violates the Constitution by

creating two ex officio members of the State Fair Board (SFB) who are

simultaneously members of the General Assembly. This is a violation of the

separation of powers. I dissent, however, from the Court in that it concludes

the General Assembly’s restructuring of the SFB and Executive Branch Ethics

Commission (EBEC) violates the Constitution by parceling out appointments to

these boards amongst other constitutional officers within the executive branch.

Kentucky’s Constitution did not create a unitary executive, and the Governor’s

authority as chief of the executive branch is limited to what the Constitution

and the General Assembly deem appropriate. Just as importantly, the

Governor’s authority is checked and balanced by the presence of multiple other

constitutional officers within the executive branch. This is a necessary

consequence of a non-unitary executive. There is no violation of the

Constitution when the General Assembly disperses executive branch

appointments amongst constitutional officers within the executive branch.

With the exception mentioned above, I conclude HB 518 and HB 334 are

constitutional in all other respects.

26 I. The legislature may disperse the appointment power across the executive branch.

The primary point of contention the Governor takes with the

reorganization of both the SFB and the EBEC is the shifting of appointment

power away from his office and the placement of that power with various other

constitutional officers within the executive. The Governor asserts this change

undermines his authority as the supreme executive by dispersing it to offices

over which the Governor has little to no control and rendering him unable to

manage boards nominally under his purview by giving him only a minority of

appointments. The parties opposing the Governor counter that nowhere in the

Constitution is the Governor entitled to a majority of appointments for all

bodies within the executive branch and, in fact, the clear thrust of the

Constitution is that the General Assembly has wide discretion in determining

how appointments to executive boards and commissions are to be made. I

begin with a discussion of Kentucky’s unusually strong form of plural executive

government and then address the constitutional provisions at issue.

Unlike the federal government, Kentucky’s Constitution does not place

the whole of executive power within a single office to whom all other executive

officers are beholden. Rather, Kentucky’s plural executive (also commonly

called a divided executive or unbundled executive) places the power of the

executive into the hands of what we refer to as the Section 91, or

constitutional, officers: the Attorney General, the Agriculture Commissioner,

the Secretary of State, the Auditor, and the Treasurer. These Section 91

officers are elected by the people and subject to the “supremacy” of the 27 Governor, but otherwise operate independently. This arrangement is not

uncommon among the states. Indeed, it is a curiosity that more than 200

years after the Framers settled upon the form of a unitary executive for our

federal system, most of the states have opted for the competing, plural model of

executive power. See Miriam Seifter, Understanding State Agency

Independence, 117 MICH. L. REV. 1537, 1552 (2019) (“Almost all states today

elect some number of officials other than the governor, and the vast majority

establish this arrangement in the constitution itself.”).

While the plural executive model is common, how that functions in

practice varies from state to state, particularly, as relates here, with regard to

the relationship between the governor and the other constitutional officers.

Supervision disputes between governors and constitutional officers are unique in that both sides can claim constitutional executive power. These cases—governor versus attorney general, or governor versus controller, for example—are those in which the popular wisdom assumes complete agency independence. In reality, these rulings are all over the map.

Id. at 1572. While most states “forge a middle ground, reaching ‘clause-based’

decisions, or simply deferring to the legislature, without overarching

conclusions about agency independence or the governor's supervisory power[,]”

Id. at 1573, some, like Indiana, affirm the Governor’s control over the “minor

administrative officers” that are the constitutional officers. Id. (quoting Tucker

v. State, 35 N.E.2d 270, 291 (Ind. 1941)). Kentucky stands on the other end of

the spectrum, unique in the strength it grants to the independence of the

constitutional officers. Id. (referring to Brown v. Barkley, 628 S.W.2d 616 (Ky.

28 1982), “[t]he Kentucky court seems to stand alone, however, in deriving such a

categorical rule of independence.”).

We described the relationship between the Governor and the Section 91

officers, and the legislature’s power vis-à-vis both in the landmark decision of

Brown v. Barkley. In that case, the Governor “issued an executive order. . .

transferring various functions, personnel and funds from the Department of

Agriculture. . . to another executive agency and, among other things, placing it

and several other agencies within a newly-created Energy and Agriculture

Cabinet.” The Commissioner of Agriculture challenged the transfer, setting up

a dispute over the extent of the Governor’s power over the constitutional

officers. We found the Governor lacked the authority to control the

constitutional officers, holding,

That the Const. Sec. 91 officers are to be elected by the people suggests that, whatever their duties, they are not answerable to the supervision of anyone else. This inference finds support in that provision of our Constitution (Sec. 78) which empowers the Governor to require information in writing from the officers of the executive branch upon any subject relating to the duties of their offices. Had the framers of the Constitution intended the Governor to have any further authority over these officers, Sec. 78 would have been unnecessary and, indeed, an anomaly.

Barkley, 628 S.W.2d at 623. The Court also discussed how the General

Assembly may utilize the Section 91 officers, which we will discuss below.

The gravamen of the Barkley opinion, as it relates to the constitutional

officers, is that while the constitutional officers are subject to the Governor’s

nominal supremacy, the actual effect of that supremacy is limited. True, the

Constitution grants the Governor certain powers while giving to the

29 constitutional officers only what the legislature sees fit to apportion them, see

Barkley, 628 S.W.2d at 621 (“It is interesting to observe that in dealing with the

General Assembly and with the office of Governor the Constitution speaks in

terms of ‘powers,’ but with regard to the Sec. 91 officers mentions only ‘duties’

and ‘responsibilities.’”), but the important point as it relates to the Fair Board

and to the EBEC is that the executive power can flow from the constitutional

officers just as readily as from the Governor.

This brings us to the other principle set forth in Barkley, that the

General Assembly holds a great deal of power in determining how the executive

fulfills its role. We determined the Section 91 officers which came into

existence “so naked of authority” existed as “convenient receptacles for the

diffusion of executive power.” Id. at 622.

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.

Id. (emphasis added). The Governor, otherwise given great power in executing

the law, is ultimately an instrument to operationalize the laws duly

promulgated by the legislature.

Whereas the judicial branch must be and is largely independent of intrusion by the legislative branch, the executive branch exists principally to do its bidding. The real power of the executive branch springs directly from the long periods between legislative sessions, during which interims the legislature customarily has left broad discretionary powers to the chief executive. It is ironic, but a historic fact of life, that in the past most chief executives have used this very power, given to them by the legislature, to influence the

30 actions of individual legislators and thus exercise control over the legislative process itself. To put it mildly, it was not meant to be that way. It has been that way, however, for the simple reason that the legislature, either by choice or necessity, has conferred upon the executive branch more authority than was consistent with its own independence. 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.

Id. at 623. (emphasis added). As we later clarified in Legislative Research

Commission v. Brown, 664 S.W.2d 907 (Ky. 1984), Barkley does not hold the

General Assembly possesses all “residual” powers of the government. Rather,

“[i]mplicit in Barkley is that the General Assembly as the legislative branch,

has all powers which are solely and exclusively legislative in nature. To argue

that any other power is given to the General Assembly simply won't wash. The

power referred to in Barkley is legislative power and legislative power only.”

Brown, 664 S.W.2d at 913.

To summarize this structural background, Kentucky’s executive branch

divides the executive power among a small number of elected constitutional

officials. The degree of independence enjoyed by these constitutional officials is

uniquely high, placing them as autonomous officials whose duty to the

Governor is somewhat limited. These constitutional officials exist as

alternative loci of executive power, with the General Assembly able to shift such

power within the branch.

This is unsurprising. In 1942, this Court upheld the General Assembly’s

decision to authorize “the executive departments to employ regular counsel

who shall have charge of their respective legal affairs,” as a valid withdrawal of

31 power from the Attorney General’s office and dispersing it amongst the several

executive agencies. Johnson v. Commonwealth ex rel. Meredith, 165 S.W.2d

820, 829 (Ky. 1942). The Court noted “the many instances where the

legislature has from time to time assigned to other officers duties which

naturally and conventionally belong to the Governor or to a sheriff or constable

or other constitutional officer,” and that this “power has not been questioned.”

Id. at 828.

And so, we turn to the question at hand: do the Governor’s prerogatives

as the supreme executive with the duty to faithfully execute the laws place a

limit upon the General Assembly’s ability to choose by whom appointments to

the SFB and the EBEC are made? The Governor directs us to two sections of

the Constitution that he argues imply such a limit, Sections 69 and 81.

Section 69 provides, “[t]he supreme executive power of the Commonwealth

shall be vested in a Chief Magistrate, who shall be styled the ‘Governor of the

Commonwealth of Kentucky.’” Section 81 reads, “[the Governor] shall take

care that the laws are faithfully executed.” Read together, the Governor

argues, these Sections mandate the Governor having a majority of

appointments on an executive board because otherwise he would lack the

ability to ensure a board followed the law, possibly losing that power to another

constitutional officer.

From the outset, there can be no disagreement that the Constitution

provides no clear, explicit directive as to the Governor’s role in appointing

members of executive boards. The closest in subject matter is Section 76

32 which gives the Governor the power “to fill vacancies by granting commissions,

which shall expire when such vacancies shall have been filled according to the

provisions of this Constitution[,]” but this power exists “except as otherwise

provided in this Constitution” and so is limited to filling vacancies of “such

officers as are created by the Constitution[,]” not members of a legislatively

created board. Rouse v. Johnson, 28 S.W.2d 745, 751 (Ky. 1930). Thus, the

power the Governor contends he has can only be found by implication. Our

law, however, presumes “in framing the constitution great care was exercised

in the language used to convey its meaning and as little as possible left to

implication.” Nevertheless, we recognize “that implied provisions are as

essentially a part of the constitution as its express provisions.” City of

Louisville v. German, 286 Ky. 477, 150 S.W.2d 931, 935 (1940).

In contrast to Section 76, there is Section 93, wherein it states, 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 law, which may include a requirement of consent by the Senate, for a term not exceeding four years, and until their successors are appointed or elected and qualified.

Ky. Const. § 93. The clear import of Section 93 is that members of boards and

commissions may be appointed as provided by law, which inescapably points

to the power of the legislature to determine whom within the executive the

appointment power lies. Cf. Landrum v. Commonwealth ex rel. Beshear, 599

S.W.3d 781, 786 (Ky. 2019) (discussing Section 93’s imperative that “The

duties and responsibilities of [the Attorney General] shall be prescribed by law” 33 and noting “since ‘[t]he legislature makes the laws,’ the General Assembly is

the body that outlines the power of the Attorney General.”). We have previously

said,

when section 93 and 107 conferred the power upon the legislature to provide for the “filling of inferior state officers in such manner as may be prescribed by law,” or to “provide for the election or appointment” of created county or district officers, the conclusion is inevitable, from the language employed and in the light of the purpose of the constitutional requirement segregating and separating the functions of government, that the authority of the legislature is limited to making such provisions by exercising its authority to pass an act containing them and directing upon whom or with whom the power to appoint or elect was lodged, which electing and appointing agency should, perhaps, be selected from the department to which the duties of the office necessarily appertain.

Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 460 (1922) (emphasis added).

Taking Sections 76 and 93 together, the language of the Constitution

strongly indicates that the Constitution is not meant to give the Governor as

powerful a role in appointing members of executive boards as he asserts.

Section 76 plainly limits the Governor’s power to fill vacancies to unoccupied,

constitutionally-created offices and Section 93 fills in any gap for legislatively-

created offices by providing that the General Assembly has the power to decide

by whom appointments to those offices are filled.

This reading of our Constitution comports not only with its plain

language, but also with the apparent intention of the framers of the 1891

Constitution. As we have before recounted with regard to the 1850

Constitution,

Prior to the adoption of the Constitution of 1850, great power lay with the Governor, for in him was the appointment of a host of 34 officials of the state. One of the moving causes for the calling of that constitutional convention was the hostility of the people to this condition. By the instrument then adopted, the Governor was shorn of a great deal of the power he had theretofore enjoyed, and much of it has never been restored to him.

Votteler v. Fields, 23 S.W.2d 588, 590 (Ky. 1926). As Votteler states, the

Framers of the 1891 Constitution did not restore the appointment power

previously so strongly lodged with the office of Governor. Indeed, during the

debates, the Delegates remained wary of expansive powers of appointment for

the Governor.

During discussion of what is now Section 81, Delegate and then-

Governor Simon Bolivar Buckner wished to append to that provision the

following language: “And for the accomplishment of this end he shall have

power to suspend from office any executive or ministerial officer who may fail

and refuse to discharge the duties of this office, and to fill the vacancy thus

occasioned.” Vol. I, Official Report of the Proceedings and Debates in the

Convention, 1458 (1890). Gov. Buckner’s attempt to restore such expansive

powers to the Governor’s office was not taken well by his fellow delegates.

Delegate C.J. Bronston of Lexington objected to the “infringement upon the

Republican Government” that would “place[] in the arbitrary power of the

executive almost every subordinate officer in the Commonwealth of Kentucky”

and suggested the Governor’s power to execute the law was satisfied by calling

the attention of the Courts and legislature to officials not performing their duty.

Id. at 1459. Delegate Thomas S. Pettit bemoaned the “almost regal power” the

amendment would give to the Governor, but advocated a middle ground

35 between Buckner and Bronston, saying “if the Governor has imposed

upon him the duty to see that the laws are faithfully executed, some power

should exist somewhere to execute those laws.” Id. at 1459-60. Delegate

Morris Sachs then expounded on the question:

He [the Governor] cannot be held nor should he be considered responsible for the acts of the people who are selected to fill positions by the same sovereign voice and sovereign power that calls him to fill his position. So far as these other officers of the State are concerned they are his equal; they are all the servants of the people of the Commonwealth of Kentucky, so that I say they decide the idea that he is not conscientiously bound to see that these others do their duty, believing that he is not responsible for those over whom he has no control. I favor this section 14 as it now stands and as it has stood since the adoption of the Constitution of 1849, believing that that is broad enough to accomplish the purposes suggested by the Delegate from Hart, believing that under that the Governor of this Commonwealth can call into force and being all necessary powers of the State as they are vested in the Courts or in the legislature. I say that the power is as broad as it can be: “He shall take care that the laws be faithfully executed.” That simply means if the Governor of this State finds that in certain quarters those over whom he has no control, who are elected by the same sovereign power which places him in office, are not doing their duty, then, under this authority, he can direct the attention of the proper tribunal to it, and see that the trouble is remedied as speedily as possible. That is all that can be done under our form of government.

Id. at 1460. Other delegates expressed similar feelings of distaste for

Buckner’s amendment, and it was ultimately withdrawn.

I acknowledge that Governor Buckner’s attempt to grant the Governor

near plenary appointment power goes far beyond what the current Governor

seeks here, but I also consider the umbrage felt by some of the Framers upon

Buckner’s attempt to restore some of that appointment power lost by the

Governor post 1850. It may be so that the 1890 Convention was called to

36 “control legislative excesses[,]” Sheryl G. Snyder & Robert M. Ireland, The

Separation of Governmental Powers under the Constitution of Kentucky: A Legal

and Historical Analysis of L.R.C. v. Brown, 73 KY. L.J. 165, 167 (1984), but

there appears to have been little taste to curtail legislative intemperance by

handing power back to an only recently weakened executive. I would also be

remiss to not observe that in the minds of at least two delegates to the

Convention, the way the Governor ensured the laws were faithfully executed

was by mere supervision, not by active management.

Accordingly, I conclude Section 81 does not mandate every board and

commission in the executive be dominated by the Governor’s appointees. I

agree with Delegate Pettit that the duty imposed by Section 81 must mean

something, however, and in this instance that duty is satisfied by the fact that

the Governor retains a strong contingent of appointees on both the SFB and

the EBEC, even if he no longer appoints the majority of either.

Section 69 does not suggest otherwise. “Section 69 of our Constitution

creates the office of Governor and vests in him the supreme executive powers of

the commonwealth. He 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, 79 S.W.2d 707, 709 (Ky. 1935). The Governor’s role as chief

magistrate is limited by other provisions of the Constitution, by the fact that

the Constitution grants to the legislature the ability to determine how

appointments are made to boards and commissions, and by the fact the

37 Constitution has created other executive-branch constitutional officers into

whose office executive power can be placed.

One additional point about the 1891 Constitution. Prior to the

finalization of the Constitution’s language, the revisory committee removed a

portion of Section 76 in order to avoid conflict with Section 93. Kraus v. Ky.

State Senate, 872 S.W.2d 433, 438 (Ky. 1993). The struck portion read, 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 (1891). In

discussing the need for removing the passage, Delegate Bronston observed that

letting it remain 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.

Id. Bronston further explained the deleted passage was wholly new to the 1891

Constitution and had been added “without intending that it should have the

far-reaching effect it has.” Id. at 5729. The debate over this change illustrates

the Framers had considered the General Assembly’s appointment power and

determined that it was the General Assembly that retained the power to

determine “by whom” an appointment should be made.

Ultimately, the shifting of executive power within the executive branch

does not fatally undermine the Governor’s Section 69 or Section 81

prerogatives. The Governor retains representatives on the SFB and the EBEC

38 who will be able to ably advocate for the position of his office. In addition to

this active role, the Governor will also possess the supervisory powers

discussed during the Convention. Although the Governor will no longer

actively manage the SFB and the EBEC, he retains the power under Section 78

to “require information in writing from the officers of the executive Department

upon any subject relating to the duties of their respective offices” and, if his

office believes a board or commission is acting illegally, can seek recourse in

the courts of the Commonwealth, a remedy so often sought for disputes within

and between the branches of government.

Just as importantly, and fatally contradicting the Governor’s contention

that he has sole responsibility for ensuring the laws be faithfully executed by

members of the executive branch, we have held the Attorney General has a

common-law duty, protected by the Constitution, “to protect public rights and

interests by ensuring that our government acts legally and constitutionally.”

Commonwealth ex rel. Beshear v. Commonwealth Office of the Governor ex rel.

Bevin, 498 S.W.3d 355, 363 (Ky. 2016). The Attorney General may bring suit

against any executive agency or member thereof if he believes that agency or

executive official is violating constitutional or statutory law. Id. (“If the Attorney

General has the power to initiate a suit questioning the constitutionality of a

statute, he must also have the power to initiate a suit questioning the

constitutionality or legality of an executive action.”). If the Governor is not even

supreme in the chief duty of his office under Section 81, that “He take care that

the laws be faithfully executed,” Ky. Const § 81, but in fact shares this power

39 with the Attorney General who is not responsible to him, then it can hardly be

contended the Governor’s supremacy in the executive is infringed upon when it

comes to the appointment power, when Section 93 so clearly allows the

General Assembly to prescribe the manner by which the appointment of

members of executive boards and commission shall be had. Sibert, 246 S.W. at

459-60.

Insofar as HB 518 and HB 334 raise the question of the legislature’s

ability to alter the Governor’s ability to appoint members to executive-branch

boards by re-assigning that power to other constitutional officers within the

executive branch, I conclude they are constitutional. But this is not all that

these laws do. There is also the provision within HB 518 allowing for the ex

officio membership of the Senate President and Speaker of the House on the

SFB.

II. Ex officio appointments of members of the legislature to executive boards violate the separation of powers.

HB 518 provides that, in addition to altering the source of most of the

appointments to the Board, two new ex officio, non-voting members are to be

added: the President of the Senate or his designee and the Speaker of the

House or his designee. 2021 Ky. Acts ch. 163, § 2(1)(d) & (e). The governor

contends these appointments violate Kentucky’s separation of powers pursuant

to our decision in Legislative Research Commission v. Brown, 664 S.W.2d 907

(Ky. 1984). Commissioner Shell contends the appointments do not run afoul of

Sections 27 and 28 or our decision in Brown because the legislative appointees

40 are non-voting and thus wield no real power on the Board. I conclude the

latter assertion to be incorrect and find the appointment of members of the

legislature to an executive board, irrespective of the ability to vote, violates our

separation of powers.

Sections 27 and 28 of our constitutions provide, respectively, that

[t]he 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 “[n]o 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.” The provisions have

traditionally been “strictly construed” with the recognition that “[p]erhaps no

state. . . has a Constitution whose language more emphatically separates and

perpetuates what might be termed the American tripod form of government

than does our Constitution[.]” Id. at 912-13 (quoting Arnett v. Meredith, 275

Ky. 223, 121 S.W.2d 36, 38 (1938); Sibert v. Garrett, 246 S.W. at 457 (1922)).

Of primary importance for this case is the application of the separation of

powers doctrine to legislative appointments in Brown. In Brown, the Legislative

Research Commission, historically a “research, fact-finding, secretariat and

general support agency for the General Assembly[,]” sought a declaratory

judgment as to the validity of a number of statutes that had been challenged by

the Governor. 664 S.W.2d at 911. Of particular relevance was a group of

statutes that “empower[ed] the Speaker of the House of Representatives and

41 the President Pro Tem of the Senate to appoint one or more members of

particular boards.” Id. at 920. Another group of statutes made the “Speaker of

the House of Representatives and the President Pro Tem of the Senate. . . ex

officio members of certain existing boards and commissions.” Id.

In addressing these legislative appointments to executive-branch boards,

the Court first looked to Section 93, which provides,

Inferior State officers, not specifically provided for in this Constitution, may be appointed or elected, in such manner as may be prescribed by law, for a term not exceeding four years, and until their successors are appointed or elected and qualified.

Although we acknowledged that Section 93 on its face allowed the General

Assembly to provide for appointments to inferior state offices, our review of the

jurisprudence on the matter revealed the legislature’s discretion on this matter

is not unfettered. We relied on our reasoning in Sibert, which in turn was

based on the controversial decision in Pratt v. Breckinridge, 112 Ky. 1, 65 S.W.

136 (1901), to find the appointments unconstitutional. Pratt held that it is not

the fact that a member of the legislative branch occupies an office that offends

the Constitution, but rather that the legislative member has exercised the

executive power of appointment whether, to appoint another individual to a

position, or, as in this case, to appoint themselves to a position. Understood in

this way, the voting power of the legislative member is of no import to the

analysis. The question is simply whether the constitution permits the

legislature to make the appointment in the first place.

42 Sibert reinforces this interpretation. In that case, we referenced Ruling

Case Law (the predecessor to American Jurisprudence):

The appointment of officers is intrinsically an administrative or executive act, but this does not imply that no appointment can be made by any department of government other than the executive, for all the authorities agree that the courts and the legislature may appoint those public officers which are necessary to the exercise of their own functions.

Sibert, 246 S.W. at 458 (quoting 22 RULING CASE LAW Nature of the Power § 73

(1929)). We then cited with approval the language of the Missouri Supreme

Court, which addressed a similar provision in its constitution, writing,

That section expressly authorizes the General Assembly, acting within its legislative capacity, to pass a law prescribing the manner in which an appointment shall be made, but it does not authorize the General Assembly to make the appointment itself nor to authorize any one unconnected with the government to do so. To provide by law the manner in which an appointment shall be made is one thing; to make the appointment is another; the one is in its nature legislative; the other is essentially executive.

Id. at 459-60 (quoting State ex inf. Hadley v. Washburn, 67 S.W. 592, 595 (Mo.

1902)).

The Brown decision followed the reasoning shown above. The

appointments to various executive boards by members of the legislature were

unconstitutional because they “fl[ew] in the face of the principle which declares

such appointments cannot be made by the General Assembly itself.” Brown,

664 S.W.2d at 923. Similarly, the act of creating ex officio positions for

legislative members on executive boards was an “appointment thereto” and

violative of the separation of powers. Id. at 924. In either case, the issue was

43 not that a legislature-selected member of a board was sitting, but rather that

the General Assembly had improperly exercised the power of appointment.

Having recounted the mode of analysis applied by this Court to address

legislative appointive overreach, I acknowledge that the language of Brown and

its precursors is overbroad. Under a strict application of the Pratt-Sibert-

Brown line of reasoning, not only is the General Assembly forbidden from

making one of its own an ex officio member of an executive board, but it would

be prohibited from creating any such positions, including for the Governor.

How could we describe the act of making the Governor or the Dean of the

College of Agriculture ex officio members of the Board other than as an

appointment made by the legislature? The longstanding practice of creating ex

officio positions on executive boards, as well as the patent absurdity of holding

the Governor may not be appointed ex officio to a board within his own branch

of government, convinces me that a clarification of Brown is necessary within

this class of appointments.

As to those ex officio positions not filled by members of the General

Assembly, but by the Governor and the Secretary of the Finance and

Administration Cabinet on the SFB, I conclude those appointments are lawful.

I find guidance in Rouse v. Johnson, 28 S.W.2d 745 (Ky. 1930). In this case,

the Court wrote,

[t]hat the legislature may annex additional duties to a constitutional office, or confer powers upon a constitutional officer other than those expressly prescribed by the Constitution, unless inhibited from so doing by that instrument, is everywhere recognized and practiced in this and other jurisdictions,

44 illustrations of which in this state are to be found from time to time since the creation of the commonwealth. . . .

Id. at 749. Within the framework of our constitution, the legislature has within

its power to assign constitutional officers of the executive branch to ex officio

roles within executive boards without running afoul of Sections 27 and 28.

Regarding the ex officio positions on the SFB for the dean of UK’s College

of Agriculture, the Kentucky Future Farmers of America state president, and

the Kentucky 4-H Organization state president, I can similarly discern no

mischief in allowing the General Assembly to create ex officio positions for

those individuals. I look to our decision in Kentucky Association of Realtors,

Inc. v. Musselman, 817 S.W.2d 213 (Ky. 1991) for guidance.

In that case, the Court stated that, unlike in Brown where the statutes

provided a more or less direct path to appointment by the General Assembly,

the statute presently in question . . . gives the General Assembly no voice in the selection of committee members; its reach extends solely to providing a method of selection with reasonable criteria to generate commission members qualified for the position through participation of an organization, the Kentucky Association of Realtors, which is independent of legislative control.

Id. at 217.

The same logic undergirds why the General Assembly may properly

designate non-governmental actors as ex officio appointees to an executive

board. In making such an appointment, the General Assembly is not choosing

an individual; rather, it selects an office, the holder of which is chosen without

input from the General Assembly and who is independent of the legislature’s

whims, and it is that officeholder who is the appointee. Second, with the ex

45 officio positions at issue presently, none have a direct relationship to the

General Assembly. Finally, the addition of those three individuals to the SFB

serves a reasonable and logical purpose of appointing qualified individuals. All

three have a close connection to the agricultural enterprise of Kentucky and

perform a valuable service to the SFB in executing its mission.

In sum, I would affirm our holding in Brown that when the General

Assembly appoints members to a board that is not connected to the mission of

the legislative branch, those appointments violate Sections 27 and 28 of the

Constitution. I would further clarify Brown to hold that the legislature may

make ex officio appointments to executive boards, with the exception that the

General Assembly may not appoint one of its own to such a board. Because

the SFB is an executive-branch entity with little direct relation to the business

of the legislature, the ex officio appointments of the President of the Senate and

the Speaker of the House to that board are unconstitutional and void.

III. Miscellanies and Conclusion

As to the Governor’s remaining arguments against the constitutionality

of HB 518, I find them without merit. That a board or commission within the

executive branch enjoys a significant amount of independence from the

Governor in its day-to-day functions does not, ipso facto, unconstitutionally

undermine the Governor’s authority as head of the executive. See Univ. of Ky.

v. Moore, 599 S.W.3d 798 (Ky. 2019). In all other respects, I find the Governor’s

concerns too ill-defined to be subject to any meaningful constitutional analysis.

46 As to severability, I conclude the constitutional provisions of HB 518 are

not “essential,” “inseparably connected,” or “dependent upon” the

unconstitutional provisions, to wit, the ex officio appointments of two members

of the General Assembly such that the two cannot be severed. KRS 446.090.

Thus, I would strike down the unconstitutional provisions but uphold the rest

HB 518 and the entirety of HB 334 as constitutional.

Lambert, C.J.; and Nickell, J., join.

47 COUNSEL FOR APPELLANT/APPELLEE, ANDY BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR; AND APPELLANT, DAVID KAREM, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE EXECUTIVE BRANCH ETHICS COMMISSION:

Mitchel T. Denham McBrayer PLLC

S. Travis Mayo Taylor Payne Office of the Governor

COUNSEL FOR APPELLANT/APPELLEE, JONATHAN SHELL, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF AGRICULTURE:

Heather Lynn Becker Marc Edwin Manley Kentucky Department of Agriculture

COUNSEL FOR APPELLANT/APPELLEE, COMMONWEALTH OF KENTUCKY EX REL. ATTORNEY GENERAL RUSSELL COLEMAN:

Matthew Franklin Kuhn Solicitor General

COUNSEL FOR APPELLANT, MARK LYNN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE STATE FAIR BOARD:

Ellen Frances Benzing Kentucky State Fair Board

COUNSEL FOR APPELLANT/APPELLEE, DAVID W. OSBORNE, IN HIS OFFICIAL CAPACITIES AS A MEMBER OF THE STATE FAIR BOARD AND SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES:

David Eric Lycan Office of the Speaker of the House

Gregory Allen Woosley Legislative Research Commission

48 COUNSEL FOR APPELLANT, BERTRAM R. STIVERS, II, IN HIS OFFICIAL CAPACITIES AS A MEMBER OF THE STATE FAIR BOARD AND PRESIDENT OF THE KENTUCKY STATE SENATE:

Jean Winfield Bird Legislative Research Commission

David Earl Fleenor R. Vaughn Murphy Office of the Senate President

COUNSEL FOR APPELLANT/APPELLEE, SECRETARY LINDY CASEBIER, IN HIS OFFICIAL CAPACITIES AS SECRETARY OF THE KENTUCKY TOURISM, ARTS, AND HERITAGE CABINET, AND AS A MEMBER OF THE STATE FAIR BOARD:

Sarah Gaines Grider Cronan Donna Allen Schneiter Kentucky Tourism, Arts and Heritage Cabinet

COUNSEL FOR APPELLEE, MICHAEL G. ADAMS, IN HIS OFFICIAL CAPACITY KENTUCKY AS SECRETARY OF STATE:

Jennifer Schwartz Scutchfield Michael Rollin Wilson Office of Secretary of State

COUNSEL FOR APPELLEE, ALLISON BALL, IN HER OFFICIAL CAPACITY AS STATE AUDITOR OF PUBLIC ACCOUNTS:

Alexander Y. Magera Auditor of Public Accounts

Savannah Grace Baker Jeremy Joseph Sylvester Office of Kentucky Auditor of Public Accounts

49 COUNSEL FOR APPELLEE, EXECUTIVE BRANCH ETHICS COMMISSION:

Susan Stokely Clary

COUNSEL FOR APPELLEE, LEGISLATIVE RESEARCH COMMISSION:

COUNSEL FOR APPELLEE, MARK H. METCALF, IN HIS OFFICIAL CAPACITY AS KENTUCKY STATE TREASURER:

Robert Lucian Gullette, Jr. Sam Preston Burchett Office of the Kentucky State Treasurer

COUNSEL FOR AMICUS, DENNIS FLEMING, JR., AUTHOR OF THOMAS JEFFERSON AND THE KENTUCKY CONSTITUTION:

Sheryl Glenn Snyder Frost Brown Todd LLP