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

• Court: Court of Appeals of Kentucky
• Decided: March 7, 2024
• Docket: 2021 CA 001459
• Status: Unknown

Opinion

RENDERED: MARCH 8, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2021-CA-1459-MR

JONATHAN SHELL, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF AGRICULTURE; AND MARK LYNN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE STATE FAIR BOARD APPELLANTS

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MARY M. SHAW, JUDGE ACTION NO. 21-CI-002234

ANDY BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY; BERTRAM ROBERT STIVERS, II, IN HIS OFFICIAL CAPACITY AS MEMBER OF THE STATE FAIR BOARD AND PRESIDENT OF THE KENTUCKY STATE SENATE; DAVID W. OSBORNE, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE STATE FAIR BOARD AND AS SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES; LINDY CASEBIER, IN HIS OFFICIAL CAPACITIES AS THE SECRETARY OF THE KENTUCKY TOURISM, ARTS, AND HERITAGE CABINET AND A MEMBER OF THE STATE FAIR BOARD; AND COMMONWEALTH OF KENTUCKY EX REL. ATTORNEY GENERAL RUSSELL COLEMAN APPELLEES

AND

NO. 2021-CA-1503-MR

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

CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MARY M. SHAW, JUDGE ACTION NO. 21-CI-002234

JONATHAN SHELL, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF AGRICULTURE; BERTRAM ROBERT STIVERS, II, IN HIS OFFICIAL CAPACITIES AS MEMBER OF THE STATE FAIR BOARD AND AS

-2- PRESIDENT OF THE KENTUCKY STATE SENATE; COMMONWEALTH OF KENTUCKY, EX REL. ATTORNEY GENERAL RUSSELL COLEMAN; DAVID W. OSBORNE, IN HIS OFFICIAL CAPACITIES AS A MEMBER OF THE STATE FAIR BOARD AND SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES; AND MARK LYNN, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE STATE FAIR BOARD CROSS-APPELLEES

NO. 2022-CA-0020-MR

COMMONWEALTH OF KENTUCKY, EX REL. ATTORNEY GENERAL RUSSELL COLEMAN APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MARY M. SHAW, JUDGE ACTION NO. 21-CI-002234

ANDY BESHEAR, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY; BERTRAM ROBERT STIVERS, II, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE STATE FAIR BOARD AND AS PRESIDENT OF THE KENTUCKY STATE SENATE;

-3- DAVID W. OSBORNE, IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE STATE FAIR BOARD AND AS SPEAKER OF THE KENTUCKY HOUSE OF REPRESENTATIVES; DR. MARK E. LYNN, IN HIS OFFICIAL CAPACITY AS CHAIR OF THE STATE FAIR BOARD; LINDY CASEBIER, IN HIS OFFICIAL CAPACITIES AS THE SECRETARY OF THE KENTUCKY TOURISM, ARTS, AND HERITAGE CABINET AND A MEMBER OF THE STATE FAIR BOARD; AND JONATHAN SHELL, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF AGRICULTURE APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.

CETRULO, JUDGE: These consolidated appeals arise from a November 2021

Jefferson Circuit Court order (“November 2021 Order”) finding various aspects of

House Bill (“HB”) 518 to be unconstitutional. After review, we find that HB 518 –

as codified within Kentucky Revised Statute (“KRS”) Chapter 247 – is

constitutional, in part, and violates the Kentucky Constitution, in part. We affirm

the circuit court.

-4- I. BACKGROUND

During its 2021 regular session, the Kentucky General Assembly

passed HB 518. This legislation made several changes to the composition, mode

of operation, and method by which members are selected to the State Fair Board.

These changes, now within KRS Chapter 247, went into effect on March 29, 2021.

In April 2021, Governor Andrew Beshear and former Secretary

Michael Berry1 (together, “the Governor”) filed a legal action in Jefferson Circuit

Court to challenge the constitutionality of select portions of KRS Chapter 247.

The Commonwealth, through then Kentucky Attorney General Daniel Cameron,

intervened to defend KRS Chapter 247, alongside Kentucky Agriculture

Commissioner Jonathan Shell, State Fair Board Chair Dr. Mark Lynn, Kentucky

Senate President Robert Stivers, and Speaker of the Kentucky House of

Representatives David Osborne (collectively, “the Appellants”).

Senate President Stivers and House Speaker Osborne moved to

dismiss under Kentucky Rule of Civil Procedure (“CR”) 12.02(a) and (f), but the

motion was denied. Ultimately, the circuit court granted in part, and denied in

part, the Governor’s motion for summary judgment; and granted in part, and

1 Governor Beshear, in his official capacity as the Governor of the Commonwealth of Kentucky, and Michael Berry, in his official capacity as Secretary of the Kentucky Tourism, Arts, and Heritage Cabinet and in his official capacity as a member of the State Fair Board were co- plaintiffs in the lower action. Jefferson County, Kentucky, 21-CI-002234. Lindy Casebier was substituted as a party in Secretary Berry’s place by Order of this Court on March 14, 2023.

-5- denied in part, motions for summary judgment brought forth by the Agriculture

Commissioner, the Attorney General, and State Fair Board Chair Lynn.

In the circuit court action, the Governor argued KRS Chapter 247

would “effectively prevent the Governor from fulfilling his constitutional duty to

take care that the laws be faithfully executed.” More specifically, the Governor

argued that the passed legislation unconstitutionally infringed upon his executive

powers under §§ 27, 28, 69, 76, and 81 of the Kentucky Constitution and violated

Kentucky’s strong separation of powers doctrine. To the contrary, the Appellants

argued that the General Assembly acted within its powers to alter KRS Chapter

247 in order “to rein in unchecked executive action by the Governor.”

A. History of the State Fair Board

In 1902, the General Assembly made an appropriation to a private

entity to oversee the state fair. The State Fair Board was created in 1906 as an

Executive Branch board. The Governor has maintained the ability to appoint the

majority of members to our State Fair Board since 1906. Still, there have been

frequent modifications over the years and various iterations of the agency. The

State Fair Board now oversees dozens of events each year, far beyond the state

fair, and generates millions of dollars in revenue for the Commonwealth.

-6- However, at least in recent years, the State Fair Board has also been appropriated

millions of dollars from the Commonwealth’s General Fund.2

Again, prior to the changes of KRS Chapter 247 in 2021, the State

Fair Board was administratively attached to the Kentucky Tourism, Arts, and

Heritage (“TAH”) Cabinet, and the Governor provided financial oversight, through

the Finance and Administration Cabinet. Compliance with KRS Chapter 45A, the

Kentucky Model Procurement Code, was required. Prior to the changes, the State

Fair Board consisted of 18 members, with 15 voting members. The Governor

appointed 12 of those 15 members.

The current changes to KRS Chapter 247, in part, shifted oversight of

the State Fair Board from only the Governor to joint oversight between the

Governor, Agriculture Commissioner, and certain members of the Legislature. It

also allowed the State Fair Board to operate more independently from the TAH

Cabinet, such as allowing it to promulgate its own procurement code. Finally, the

recent KRS Chapter 247 modifications changed how and by whom members of the

State Fair Board were appointed.

2 The General Fund consists of state tax revenues collected under general tax laws and other designated receipts available for the activities, operations, and services of state government.

-7- B. Circuit Court’s Ruling

In its November 2021 Order, the Jefferson Circuit Court did not strike

down the entirety of the 2021 modifications to KRS Chapter 247, but – finding the

provisions severable – held certain provisions to be unconstitutional. The circuit

court found KRS Chapter 247 unconstitutionally (1) appointed legislators (or their

designees) as ex officio, non-voting, members to the State Fair Board; (2) shifted

the power to appoint the majority of voting members from the Governor to the

Agriculture Commissioner; and (3) prohibited the Governor from appointing

voting members whose terms expired in 2021. The circuit court found all other

modifications to KRS Chapter 247 constitutional. Additionally, the circuit court

entered a permanent injunction preventing the Appellants from enforcing the

unconstitutional provisions. However, in December 2021, the circuit court entered

a separate order – staying the effect of its November 2021 Order – allowing the

parties to continue to enforce the other provisions of KRS Chapter 247 as enacted.

Three separate notices of appeal or cross-appeal were filed.

In February 2022, the Governor moved this Court to lift the circuit

court’s stay of its temporary injunction pursuant to CR 65.08 (now Kentucky Rule

of Appellate Procedure 20(B)). In June 2022, a motion panel of this Court granted

in part, and denied in part, the Governor’s motion (“June 2022 Order”). That order

prohibited the parties from enforcing the aspects of revised KRS Chapter 247 “that

-8- allow[] the President of the Senate and the Speaker of the House or their designees

from serving as ex officio members of the [State Fair Board].” All other aspects of

the KRS Chapter 247 modifications were allowed to remain in effect.3

II. STANDARD OF REVIEW

Here, the circuit court granted in part, and denied in part, respective

motions for summary judgment. “The standard of review on appeal when a

[circuit] court grants a motion for summary judgment is ‘whether the [circuit] court

correctly found that there were no genuine issues as to any material fact and that

the moving party was entitled to judgment as a matter of law.’” Blackstone Mining

Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010) (quoting Scifres v.

Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996)); see also CR 56.03. “Because there

are no factual issues in dispute and all issues before us concern issues of law, our

review is de novo.” Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 81

(Ky. 2018) (citing Owen v. Univ. of Ky., 486 S.W.3d 266, 269 (Ky. 2016)).

III. ANALYSIS

The Appellants argue that the circuit court erred by finding several

provisions of KRS Chapter 247 to be unconstitutional: (1) appointing the Senate

3 The Governor asks this Court to revisit that finding. However, this Court held after extensive review that “in balancing the equities, it appears to the Court that the trial court’s stay is, for the moment, the least injurious solution to the [State Fair Board] and the public. . . . After considering the Maupin [v. Stansbury, 575 S.W.2d 695, 699 (Ky. App. 1978)] factors, we hold that the trial court did not abuse its discretion by staying its own order[.]” We agree.

-9- President and House Speaker to the State Fair Board; (2) shifting the majority of

the appointment power from the Governor to the Agriculture Commissioner; and

(3) prohibiting the Governor from appointing voting members whose terms expired

in 2021. Further, the Appellants assert that even if portions of the KRS Chapter

247 modifications are unconstitutional, any offending provisions were rightly

severed to uphold the remainder of the legislation.

Conversely, the Governor argues that the KRS Chapter 247

modifications unconstitutionally stripped the Governor’s office of its executive

power and the “[L]egislature completely divested the Governor of any meaningful

ability to ensure that the [State Fair] Board faithfully executes the law.” The

Governor also argues that the circuit court erred in finding some portions were

within the authority of the Legislature and – because the legislation cannot be

severed – the KRS Chapter 247 modifications are unconstitutional as a whole. We

will discuss severability later in this Opinion.

The highest court in the Commonwealth previously noted that §§ 27

and 28 of the Kentucky Constitution, together, make Kentucky’s separation of

powers’ doctrine perhaps the strictest doctrine of any state in the United States.

See Sibert v. Garrett, 246 S.W. 455, 457 (Ky. 1922) (“Perhaps no state forming a

part of the national government of the United States has a Constitution whose

language more emphatically separates and perpetuates what might be termed the

-10- American tripod form of government than does our Constitution[.]”). It is a

doctrine that is to be strictly construed. Legis. Rsch. Comm’n [“LRC”] By and

Through Prather v. Brown, 664 S.W.2d 907, 912 (Ky. 1984) (citation omitted).4

In Kentucky, the branches of state government are distinct and clearly

defined. KY. CONST. § 27.5 We, the Judicial Branch, interpret and apply the laws

– that were enacted by the Legislative Branch – as executed by the Executive

Branch. Commonwealth ex rel. Beshear v. Commonwealth Off. of the Governor ex

rel. Bevin, 498 S.W.3d 355, 370 (Ky. 2016). When the Kentucky Constitution

specifically reserves a power to one branch of government, that power may not be

delegated to another branch. Bd. of Trs. of Jud. Form Ret. Sys. v. Att’y Gen. of the

Commonwealth of Ky., 132 S.W.3d 770, 782 (Ky. 2003). In essence, each branch

4 The dissent critiques the jurisprudence behind LRC and urges the Supreme Court to recognize that its “catalyst” was rendered by a “partisan-elected judiciary influenced by the deadly politics of its era.” However, this current non-partisan elected Court is bound by stare decisis. See Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 795 (Ky. 2009) (internal quotation marks and citation omitted) (“[T]he doctrine of stare decisis remains an ever-present guidepost in our undertaking. Stare Decisis compels us to decide every case with deference to precedent. Thus, it is with anything but a cavalier attitude that we broach the subject of changing the ebb and flow of settled law [and while], we do not feel that the doctrine compels us to unquestioningly follow prior decisions when this Court finds itself otherwise compelled, we recognize that stare decisis [is] the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.”). While the dissent’s history lesson is intriguing, we cannot ignore binding precedent simply because we believe a 1901 decision was “suspect.” Our Supreme Court has never concluded that the precedent cited herein is at odds with the state of the law, and it is not the role of this Court to do so. 5 “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.”

-11- is directed to stay on its own path, unless venturing off its path is “expressly

directed or permitted.” KY. CONST. § 28.6

The dissent’s analysis of the 1849 Convention concludes that it

stripped the Governor of the majority of its powers. The 1850 Constitution did

expressly deprive the Governor of his previous authority to appoint certain

constitutional officers, e.g., Treasurer, Attorney General. Those officers have

since been elected by “the People.” However, the Governor retained the right to

appoint certain officers. Legal scholars generally agree that the 1890 Convention

was called to limit and control special legislation and legislative excesses.

Zuckerman v. Bevin, 565 S.W.3d 580, 589 (Ky. 2018) (citation omitted).

Regardless, the sanctity and importance of the separation of powers has remained a

primary focus of our precedent.

The question before us now, nearly 200 years later, is simply whether

the Governor retains executive power to appoint certain individuals in spite of the

significant power of the Legislature. Our precedent proclaims the answer is a

“qualified” yes.

Our Legislature . . . possesses the authority to enact any statute it deems necessary for the public interest, unless prohibited by constitutional provisions. In the exercise of that authority it may frame its enactments and express its

6 “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.”

-12- intention and purpose as it sees proper, as long as it does not conflict with any inhibition contained in the Constitution of its state.

Taylor v. Commonwealth ex rel. Dummit, 202 S.W.2d 992, 996 (Ky. 1947).

In 1982, the Kentucky Supreme Court stated, “[i]t is axiomatic that

under our Constitution the General Assembly has all powers not denied to it or

vested elsewhere by the Constitution.” Brown v. Barkley, 628 S.W.2d 616, 623

(Ky. 1982). However, two years later, the same Court clarified that its holding in

Barkley did not grant residual powers – i.e., those powers not enumerated in the

Constitution – to the General Assembly. LRC, 664 S.W.2d at 913-14.

Emphasizing the importance of the separation of powers, the Court stated:

Implicit 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. In summation, our view is best expressed in Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455 (1922), which we reaffirm. There we stated:

But a deeper probing into and investigation of the subject will reveal the truth that the rule so generally stated means, not that the Legislature has “all powers” not withheld by the Constitution, but that it “may pass any acts that are not expressly or by necessary implication inhibited by their own Constitutions or by the Federal Constitution.” In other words, the Legislature may perform all legislative acts not expressly or by necessary implication withheld from it, but it

-13- may not perform or undertake to perform executive or judicial acts, except in such instances as may be expressly or by necessary implication directed or permitted by the constitution of the particular state.

Id. (quoting Sibert, 246 S.W. at 457) (emphasis in original).

The Governor is vested “supreme executive power of the

Commonwealth” – KY. CONST. § 69 – and it is his or her responsibility to “take

care that the laws be faithfully executed.” KY. CONST. § 81. The Governor “has

only the authority and powers granted to him by the Constitution and the general

law . . . [and], like everyone, is bound by the law.” Bevin, 498 S.W.3d at 369.

“Whereas the [J]udicial [B]ranch must be and is largely independent of intrusion

by the [L]egislative [B]ranch, the [E]xecutive [B]ranch exists principally to do its

bidding.” Barkley, 628 S.W.2d at 623.

As the Judiciary, it is our responsibility when construing statutes to

determine the Legislature’s intent, “and if that language is clear and unambiguous,

we look no further.” Beshear v. Acree, 615 S.W.3d 780, 801 (Ky. 2020) (citations

omitted). We must give duly adopted legislation a presumption of validity. Hayes

v. State Prop. & Bldgs. Comm’n, 731 S.W.2d 797, 799 (Ky. 1987); see also Wynn

v. Ibold, Inc., 969 S.W.2d 695 (Ky. 1998) (citation omitted). Further, “[a]

constitutional infringement must be ‘clear, complete and unmistakable’ in order to

render the statute unconstitutional.” Acree, 615 S.W.3d at 805 (quoting Caneyville

-14- Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 806

(Ky. 2009)) (internal quotation marks omitted). However, even against a strong

presumption of constitutionality, “this Court is responsible for assessing statutes

based on the directives in our Constitution.” Commonwealth ex rel. Cameron v.

Johnson, 658 S.W.3d 25, 40 (Ky. 2022).

With those parameters in mind, we find portions of the KRS Chapter

247.090 modifications do infringe on the Kentucky Constitution: it is

unconstitutional for the General Assembly to appoint the Senate President and

Speaker of the House (or their designees) as ex officio, non-voting, members to the

State Fair Board. We also find “clear and unmistakable” constitutional conflict in

the modifications to KRS Chapter 247 which transferred majority oversight of the

State Fair Board from the Governor to the Agriculture Commissioner and

prohibited the Governor from appointing members whose terms expired in 2021.

Other modifications by the Legislature appear to fall within its legislative powers

as the third branch of government.

A. KRS 247.090(1)(c) and (d) are Unconstitutional

KRS 247.090(1) added two members of the State Legislature (Senate

President and House Speaker) onto the State Fair Board as ex officio, non-voting,

members.

-15- The State Fair Board shall be composed of sixteen (16) voting members and five (5) ex officio, nonvoting members, as follows:

...

(c) The President of the Senate or his or her designee, who shall serve as an ex officio, nonvoting member for the duration of his or her service as President of the Senate;

(d) The Speaker of the House of Representatives or his or her designee, who shall serve as an ex officio, nonvoting member for the duration of his or her service as Speaker of the House of Representatives[.]

KRS 247.090(1)(c) and (d).

The circuit court determined this provision was unconstitutional

because it infringed upon the Executive Branch’s appointment authority, a power

given to the Executive Branch by the Kentucky Constitution, as reinforced by

LRC. We agree.

In LRC, the General Assembly had passed several acts during its 1982

regular session that tested the Governor’s constitutional powers. LRC, 664 S.W.2d

at 909. Pertinent here, the General Assembly made the House Speaker and Senate

President ex officio members of “certain existing boards and commissions.” Id. at

920 (citation omitted). There, the LRC argued it was permitted to appoint the

House Speaker and Senate President to the boards because § 93 of the Kentucky

Constitution allowed inferior state officers and members of boards and

commissions, not otherwise provided for, to be appointed in such a manner as

-16- prescribed by law. Id. at 923 (citation omitted). However, after a thorough

recitation of relevant precedent, the Kentucky Supreme Court ultimately found that

the statutes that gave board membership to the House Speaker and Senate

President were “invalid because such constitutes a legislative appointment which

infringes on the right of the Governor to make such appointments.” Id. at 924.

Appellants attempt to distinguish LRC, but we are not persuaded.

Appellants point to the discrepancy on the type of membership: in

LRC, the ex officio appointments in question were voting members, whereas the ex

officio appointments here are non-voting members. The Appellants argue that “[i]n

LRC, the General Assembly crossed that line [the line prohibiting the General

Assembly from absorbing the functions of other branches] by making members of

the General Assembly voting members[.]” However, because here the 2021

General Assembly did not give the Senate President and House Speaker the power

to vote, they argue the provision found a “delicate balance” between not

overstepping the Executive Branch’s power of appointments and the power of the

Legislative Branch to make appointments “in exercise of its own functions,” citing

Sibert, 246 S.W. at 458.7 Appellants argue, citing Sibert, that the Legislature is

7 “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 [who] are necessary to the exercise of their own functions.” Sibert, 246 S.W. at 458 (emphasis in original) (citation omitted).

-17- constitutionally permitted to “exercise [] its own functions” and that entails

performing “oversight of the [E]xecutive [B]ranch” by “naming an ex officio non-

voting member to the State Fair Board.” They assert that the legislative additions

to the State Fair Board are not an executive act (triggering a separation of powers

violation), given that the members cannot formally participate in the State Fair

Board’s voting. However, that argument fails.

Neither LRC nor Sibert interpret the allocation of appointment powers

as a balancing act. True, respect must be given to the separation of powers, but

LRC tells us that

the Legislature may perform all legislative acts not expressly or by necessary implication withheld from it, but it may not perform or undertake to perform executive or judicial acts, except in such instances as may be expressly or by necessary implication directed or permitted by the constitution of the particular state.

LRC, 664 S.W.2d at 914 (quoting Sibert, 246 S.W. at 457) (emphasis in original).

Here, the General Assembly was attempting to usurp the Executive

Branch’s powers by placing themselves on an executive board. However, this is an

attempt to do indirectly what it cannot do directly. See id. at 923-24. The General

Assembly cannot perform acts expressly given to another branch of government;

i.e., the General Assembly cannot create for themselves membership roles on a

board clearly within the Executive Branch’s control.

-18- So where the Constitution provides that all officers whose appointment is not otherwise provided for in the Constitution shall be chosen in such manner as may be prescribed by law, it is held that, while this provision authorizes the Legislature to provide by law for the appointment or election of such officers, it does not authorize the Legislature itself to make such appointment or election.

Id. at 923 (quoting Sibert, 246 S.W. at 459) (emphasis in original).

The General Assembly appointing themselves ex officio non-voting

members to the State Fair Board is more than just permissible “legislative

oversight”; it crosses the boundaries established by §§ 27 and 28 of the Kentucky

Constitution. These non-voting roles are not “powerless” as the Appellants argue;

they can perform all other functions of board members, including serving on

committees, engaging in debate, participating in board decisions, and, as the

Appellants admit, they are “at the table when voting members of the State Fair

Board ma[k]e decisions.” Under LRC, statutorily appointing legislators as ex

officio board members infringes upon the appointment authority of the Executive

Branch. Id. at 924.

The role of this Court is to interpret and apply the laws, not to – as the

Appellants requested – “extend” existing precedent beyond our clear reading.

“[A]s an intermediate appellate court, this Court is bound by established

precedents of the Kentucky Supreme Court.” Sigrist v. Commonwealth, 660

S.W.3d 636, 646 (Ky. App. 2022) (citing Kentucky Supreme Court Rule

-19- 1.030(8)(a)). LRC is binding and not sufficiently distinguishable from the facts

before us. Therefore, KRS 247.090(1)(c) and (d) – adding two members of the

Legislature onto the State Fair Board – are unconstitutional.

B. KRS 247.090(1)(g) and (n) are Unconstitutional

While the Appellants concede that “[a]ppointment to office[] is

intrinsically executive” – Taylor v. Commonwealth, 26 Ky. 401, 401 (Ky. 1830) –

they argue the General Assembly can determine who, within the Executive Branch,

may appoint “officers whose appointment is not otherwise provided for in the

Constitution[,]” citing Sibert, 246 S.W. at 459. Appellants argue that because the

Agriculture Commissioner is part of the Executive Branch and members of the

State Fair Board are officers “not otherwise provided for in the Constitution[,]” the

General Assembly had authority to implement KRS 247.090(1)(g)-(n), giving the

Agriculture Commissioner a majority of the State Fair Board’s appointments.

Appellants rely on Rouse v. Johnson, 28 S.W.2d 745 (Ky. 1930); Cameron v.

Beshear, 628 S.W.3d 61 (Ky. 2021); and Brown v. Barkley, 628 S.W.2d 616 (Ky.

1982) to claim the General Assembly has the power “to give someone other than

the Governor the ability to appoint a majority of the members to a board or

commission.”

While the parties agree that § 93 of the Kentucky Constitution permits

“an executive officer other than the Governor to participate in board and

-20- commission appointments[,]” the Governor argues that the appointment

designation is not so unfettered as to allow a majority of appointments to be made

in such a manner by the Agriculture Commissioner. The question, therefore,

remains: does the Constitution permit the General Assembly to designate an

executive constitutional officer (like the Agriculture Commissioner) to make

appointments and give him or her such power that it overrides the “supreme

executive power” of the Governor?

First, Appellants point to Rouse and argue that the General Assembly

has the power “to give someone other than the Governor the ability to appoint a

majority of the members to a board or commission[.]” However, the Court in

Rouse did not make such a conclusion. There, the Court determined that an act

designating an “Appointing Board” – which included the Governor – to appoint

members of a commission was not unconstitutional under §§ 27, 28, and 93.

Rouse, 28 S.W.2d at 746, 750-51.

In Rouse, the General Assembly repealed an “Old Act,” which had

designated the Governor to appoint all four members of a commission. Id. at 746.

In its place, the General Assembly passed a “New Act,” which expanded the

commission to eight members and designated an “Appointing Board” – comprised

of the Governor, Lieutenant Governor, and Attorney General – to appoint the

members. Id. After the Appointing Board appointed eight members to the

-21- commission, the Governor began to question the constitutionality of the New Act

and appointed four other members to the commission under the Old Act. Id. The

Old Act members then filed suit against the New Act members, claiming the New

Act was unconstitutional. Id.

Ultimately, the highest Court in Kentucky reviewed the New Act to

determine its validity under Kentucky Constitution §§ 27 and 28, the separation of

powers doctrine. Id. at 747-48. The Old Act members argued the New Act was

unconstitutional because (1) the Lieutenant Governor, who served on the

Appointing Board, was “primarily and essentially a legislative” office and the

Legislature did not have the “executive authority to appoint to office”; and (2) the

New Act offended § 1528 of the Constitution because it authorized the Appointing

Board to fill vacancies in the commission even though that section gave the sole

authority to fill vacancies to the Governor. Id. The Court held that (1) the office

of Lieutenant Governor was an executive, not legislative, office; and (2) § 152 was

not applicable, but §§ 76 and 93 were, and those did not necessitate that the

Governor fill vacancies of inferior state officers. Id. at 750-51.

8 Kentucky Constitution § 152 details when and how vacancies for elective (not appointive) officers are filled; in pertinent part, “[v]acancies in all offices for the State at large, or for districts larger than a county, shall be filled by appointment of the Governor; all other appointments shall be made as may be prescribed by law.” See id. at 752.

-22- As to the second issue, the Court explained that Kentucky

Constitution § 76 – conferring the Governor’s power to appoint vacancies, “except

as otherwise provided in this Constitution” – and § 93 – stating inferior state

officers may be appointed “in such manner as may be prescribed by law” – must be

read together. Therefore, the Court concluded that the vacancies mentioned in § 76

applied only to officers the Constitution created, not vacancies of “inferior state

officers,” as detailed in § 93. As such, the Court found the New Act was

constitutional.

Importantly, Appellants claim Rouse held the Governor need not

appoint a majority of the members of a Board; however, it is clear that in Rouse the

Governor remained involved (by way of the Appointing Board) in the appointment

of all members. Here, however, KRS 247.090 did not keep the Governor involved

in all of the appointments – not even a majority of them. Instead, under KRS

247.090(g)-(n), the Agriculture Commissioner now appoints eight of 13 voting

members with no input from the Governor. That is distinguishable from Rouse.

Further, as the Rouse Court largely focused on (1) whether the Lieutenant

Governor was part of the Legislative Branch, and (2) the constitutional

requirements for inferior state officer vacancies, not appointments, it is difficult to

ascertain the precedential value of this case on this issue.

-23- Next, Appellants detail Cameron. There, the Governor questioned

whether the General Assembly could enact legislation amending the Governor’s

statutorily derived power to respond to emergencies. Cameron, 628 S.W.3d at 66.

Our Supreme Court reviewed two issues: (1) whether there was a justiciable case

or controversy and (2) if so, whether a temporary injunction was warranted. Id. at

68. The Supreme Court determined that the matter did present a justiciable case or

controversy; however, the trial court had abused its discretion in issuing the

temporary injunction. Id. at 66.

The Supreme Court acknowledged that KRS Chapter 39A provided

the Governor the power to issue states of emergency. Id. However, the Supreme

Court noted that “going forward, the General Assembly could limit the Governor’s

statutorily[]derived emergency powers should it wish to.” Id. (citing Acree, 615

S.W.3d at 812-13). In accordance, the General Assembly passed House Bill 1,

Senate Bill 1, and Senate Bill 2, restricting “the Governor’s ability to take

unilateral action during declared emergencies.” Id. at 67. The Governor (and

related parties) then filed a declaratory action to determine whether those bills

were unconstitutional under §§ 2, 27, 28, 36, 42, 55, 59, 60, 69, 75, 80, and 81 of

the Kentucky Constitution. Id.

Ultimately, the Supreme Court only addressed the Governor’s

standing to bring the suit and whether the matter was justiciable. When

-24- determining whether the Governor had an irreparable injury, so as to justify the

injunction, our Supreme Court detailed the Governor’s powers. Id. at 73-74. The

Court acknowledged that, unless our Constitution expressly sets forth a power for

the Governor, his or her power is derived from the General Assembly’s statutes.

Id. at 73 (citations omitted). As such, the Governor’s power to exercise emergency

authority was “confined to the statutory authority given to him by the Legislature

under KRS Chapter 39A.” Id. (citing Acree, 615 S.W.3d at 812-13). Appellants

obviously point to this language in support of the legislation herein.

However, in Cameron, the defendants argued Senate Bill 1 – which

gave a constitutional officer “authority to approve, or disapprove, any suspension

of statute deemed necessary by the Governor to respond to an emergency” – was

constitutional because the General Assembly had delegated its own legislative

power to conduct such suspensions under § 15 of the Kentucky Constitution. Id. at

68-69 and 76 (emphasis added). The Governor therein argued that the power to

suspend fell under Kentucky Constitution § 69; however, the Supreme Court held

that the Constitution expressly gives that power to the General Assembly in

Kentucky Constitution § 15. Id. at 76. Therefore, the General Assembly had the

-25- right to delegate its own constitutionally derived power to suspend statutes to a

constitutional officer (like the Attorney General). Id.9

Here, however, the power at issue is neither statutorily derived (like

the power to respond to emergencies) nor is it a legislative power (like the power

to suspend statutes). Here, the Governor’s “supreme executive power” is

enumerated in Kentucky Constitution § 69. His authority as Chief Magistrate is

expressly delineated in the Constitution and expressly removed by this legislation.

As such, Cameron does not provide relevant authority. The case clearly does not

speak to the Legislature impeding on constitutionally derived powers of the

Governor.

Finally, Appellants detail Barkley. There, the Governor entered an

executive order that transferred many functions, personnel, and funds from the

Department of Agriculture to a different executive agency. Barkley, 628 S.W.2d

at 618. The Agriculture Commissioner filed suit challenging the order, and the

trial court found the order to be invalid under KRS 12.025(1), “the enabling statute

pursuant to which [the order] was issued.” Id. The Supreme Court upheld the trial

court’s findings, concluding that the order did not come under the authority of

KRS 12.025(1). Id. Additionally, the Court analyzed whether the Governor had

9 Relying on Barkley, the Court emphasized that the General Assembly may grant its own powers to § 91 constitutional officers. Id. at 76 (emphasis added).

-26- the constitutional power to reorganize statutorily derived powers that the General

Assembly granted to a certain executive agency. Id.

“The centerpiece of [the] litigation [was] KRS 12.025(1),” which

provided that the Governor may “[e]stablish, abolish or alter the organization of

any agency or statutory administrative department[.]” Id. at 619 (emphasis added).

Initially, KRS 12.020 stated that the Department of Agriculture was a

“constitutional administrative department,” not a “statutory administrative

department.” Id. The Court explained that, although later amendments to

KRS 12.020 reclassified the administrative departments based on whether the

department head was appointed or elected, the original terminology indicated that

the General Assembly intended for the Department of Agriculture to be a

“constitutional administrative department” and not subject to KRS 12.025(1). Id.

Again, our Supreme Court noted that the reorganization powers in question were

statutorily derived. Id.

The Court went on to discuss, in dicta, the “interrelation of

constitutional powers with respect both to the Governor, the General Assembly”

and § 91 constitutional officers. 628 S.W.2d at 621. It found that interplay

important “because (1) to the extent that the Governor has any implied or inherent

powers in addition to those the Constitution expressly gives him, it seems clear that

such unexpressed executive power is subservient to the overriding authority of the

-27- legislature, and (2) the officers named in Const. Sec. 91 have only such powers and

duties as are assigned to them by legislative enactment or by executive order

expressly authorized by statute.” Id. Therefore, the Agriculture Commissioner’s

“functions, authority, funds or personnel can be removed to another agency at the

will of the General Assembly.” Id. at 622.

Importantly, though, the Court acknowledged that the General

Assembly’s power to use constitutional officers as “convenient receptacles for the

diffusion of executive power” was not without bounds. Id. “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). In other words, so long as

the General Assembly’s diffusion of the Governor’s power to a constitutional

officer does not inhibit the Governor’s “supreme executive power,” it is

constitutional. Id.

It appears clear that the Court in Barkley was working within those

logical boundaries. Otherwise, there would have been no need to qualify its

statement with the impossibility of usurping the Governor’s “supreme executive

power” by creating officers who were not subject to that supremacy. If we were to

-28- adopt the Appellants’ interpretation of Barkley, where there is no prohibition on

providing a constitutional officer the whole of the Governor’s constitutionally

derived power, there is nothing stopping the General Assembly from cutting this

Governor and all future Governors out of the equation completely.10 If there is no

requirement that the Governor have a majority of appointments to sustain his or her

supreme executive power, then there is nothing requiring the Governor to have a

hand in those decisions at all.

Nevertheless, the holding in Barkley spoke only to whether the

Governor had the authority as “supreme executive power” to reorganize an

executive agency when the Legislature explicitly provided such power only to

“statutory agencies.” Id. Specifically, the Court found the Governor does not have

the power to reorganize the agency “without legislative sanction unless it is

necessary in order for him to carry out a law or laws that the legislature has created

without prescribing in sufficient detail how they are to be executed.” Id.

Moreover, the Court acknowledged that where the General Assembly has omitted

“specifying the manner in which [a law] is to be carried out, the chief executive

would be required to carry it out and have the right to choose the means by which

10 When asked at oral argument, the Appellants failed to explain what would constitute the “floor” of the Governor’s power, or the point where the Legislature so grossly limits the Executive Branch as to make it an “empty shell”; however, they did recognize that some “floor” must exist.

-29- to do it . . . because it would be within the scope of authority and duty expressly

conferred upon him by Const. Sec. 81.” Id. at 623. The Court held that “[t]his

means, we think, that when the General Assembly has placed a function, power or

duty in one place there is no authority in the Governor to move it elsewhere unless

the General Assembly gives him that authority.” Id. There, KRS 12.025 did not

give the Governor that authority. Id. In fact, it expressly denied such authority.

Id.

Here, however, the Governor has not attempted to reorganize an

executive agency so as to transfer authority from one constitutional officer to

another. Instead, the General Assembly has altered the structure of the State Fair

Board so as to usurp the “supreme executive power” expressly provided to him in

the Constitution and muddy whether the Governor is able to “take care that the

laws be faithfully executed” under Kentucky Constitution § 81.

In short, we agree with the circuit court’s statement below that the

precedent within the Commonwealth is not directly on point on this issue, but we

do not turn to out of state authority as did the trial court. As our Supreme Court

directed in Acree, our “North Star” must be “our own Kentucky Constitution.”

Acree, 615 S.W.3d at 805 n.30.11 Our Constitution clearly grants the supreme

11 In addition to our Constitution, we appreciate the power and influence of our current caselaw. As the intermediate appellate court, we must also consider our Supreme Court precedent and apply those cases to the nuanced issue before us now. We have done so while recognizing that

-30- executive power of the Commonwealth exclusively to the Governor. We believe

that our Constitution does indeed serve as our “North Star” and while our

deference to the Legislature is substantial, our obligation to protect the deeply

ingrained separation of powers required by our Constitution is greater still.

All parties agree that this is an executive board and that the power to

appoint and remove is an executive power. That power can, under recent opinions,

be delegated by the Legislature so as to “diffuse” the Governor’s authority.

Barkley, 628 S.W.2d at 622. However, it cannot be diffused to such an extent that

it reduces the office to an “empty shell.” Johnson v. Commonwealth ex rel.

Meredith, 165 S.W.2d 820, 829 (Ky. 1942). As the Supreme Court held in

Barkley, other constitutional officers can be granted duties by the General

Assembly, but no other executive office can be created which will not also be

inferior to that of the Governor. Barkley, 628 S.W.2d at 622. Both Barkley and

LRC make clear that any law passed by the Legislature must not violate our

Constitution. The General Assembly cannot do indirectly what it cannot do

the Kentucky Supreme Court will determine the ultimate outcome of this case. We note, a motion to transfer this case and others directly to that Court was denied. The dissent’s nearly 300 pages of analysis of the Constitution and of our caselaw concludes that the Supreme Court precedent cited herein is flawed, and should bring a degree of embarrassment to the judiciary. Writing for the majority, I disagree but do urge the Supreme Court to exercise its power and address these important constitutional issues and direct the three branches of government accordingly. As then Chief Justice Minton wrote in Stivers v. Beshear, 659 S.W.3d 313, 317 (Ky. 2022), “[t]his case illuminates the tension among the three branches of government. . . . As the court of last resort in the Commonwealth, [the Supreme Court is] in the unenviable position of resolving the dispute between the branches of government.”

-31- directly. LRC, 664 S.W.2d at 923-24. Thus, on this issue, we also affirm the

circuit court.

C. KRS 247.100 and KRS 247.110 are Constitutional

KRS 247.100 keeps the State Fair Board attached to the TAH Cabinet,

but “solely for administrative purposes” and provides that it is otherwise

accountable to the Legislature, Governor, and Agriculture Commissioner, as an

“independent, de jure municipal corporation[.]”

(1) As used in this section, “solely for administrative purposes” means those limited functions and purposes expressly requested by the State Fair Board to be performed by the [TAH Cabinet]. The State Fair Board shall have sole discretion as to which functions shall be deemed necessary for the efficient operation of the State Fair Board and the properties in its custody and control.

(2) The State Fair Board shall be a body corporate with full corporate powers. The General Assembly hereby recognizes and reaffirms that the operations of the State Fair Board and the operation of its facilities are unique activities for state government and that an independent corporate structure is best to enable the State Fair Board to be managed in an entrepreneurial and business-like manner. The State Fair Board shall be an independent, de jure municipal corporation and political subdivision of the Commonwealth of Kentucky, which shall be a public body corporate and politic. The State Fair Board shall be deemed a public agency within the meaning of KRS 61.805 and 61.870. The State Fair Board shall be attached to the [TAH] Cabinet solely for administrative purposes.

-32- (4) 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.

KRS 247.100.

The circuit court found no constitutional conflict with this

restructuring and the new system of oversight, stating “[s]o long as the [State Fair

Board] remains under the authority of the [E]xecutive [B]ranch, there is nothing

that prevents the [L]egislature from making it an independent agency, attaching it

to the [TAH Cabinet] only for administrative support. . . . What matters is whether

there is executive oversight, the absence of which could trigger a violation of the

separation of powers.” To the contrary, the Governor argues that this restructuring

of the State Fair Board prevents him from conducting his § 81 duty to faithfully

execute the law and gives the Legislature unconstitutional control over an

executive board.

First, the Governor argues that the financial restructuring shifts

oversight – away from the TAH Cabinet to the General Assembly – through a

system of audits, reports, and financial disclosures in violation of §§ 27 and 28 of

the Kentucky Constitution. The Governor argues that the General Assembly has

breached its constitutional boundaries but admits “[w]hat exactly the [L]egislature

will require of the State Fair Board is unclear.” The Governor asserts that the

-33- framers of our current Constitution “intended the [L]egislature to discuss and enact

laws, and to do nothing else.” LRC, 664 S.W.2d at 912 (quoting Pratt v.

Breckinridge, 65 S.W. 136, 140 (Ky. 1901)). In this regard, the Governor argues,

these KRS Chapter 247 modifications show the General Assembly has ventured off

its own path.

Conversely, the Appellants challenge the preservation of this

argument and assert that “simply allowing the [L]egislature to see what an agency

is doing through reports, audits, and financial disclosures does not offend the

separation of powers.” We agree, as did the circuit court. Again, we must give

duly adopted legislation a presumption of validity – Hayes, 731 S.W.2d at 799 –

and “[a] constitutional infringement must be ‘clear, complete and unmistakable’ in

order to render the statute unconstitutional.” Acree, 615 S.W.3d at 805 (internal

quotation marks and citation omitted). Here, without knowing what exactly the

Legislature will require of the State Fair Board – beyond general financial

disclosures12 – there are no “clear, complete and unmistakable” constitutional

provisions to assess for possible constitutional infringement.

Next, the Governor challenges the transformation of the State Fair

Board as a body under his control into an independent, municipal, de jure

12 The circuit court noted that the only statutory provision was one that required an annual accounting reported to the Governor and LRC, a task “clearly within the [L]egislature’s prerogative.”

-34- corporation. He states that these structural changes grant the State Fair Board

“unchecked control over its own finances, property, and operations, even though

the [State Fair Board] is dependent on millions of taxpayer dollars from the

General Fund.” The Governor argues that these changes allow the State Fair

Board to independently perform executive functions including, but not limited to,

procuring state contracts under its newly promulgated procurement procedures,

rather than the Model Procurement Code under KRS Chapter 45A, thereby

removing any substantive executive oversight. The Governor contends there can

be no independent agency of state government, citing LRC, and asserts that the

new independent board structure impairs his ability to fulfill his duty under § 81 of

the Constitution. However, here again § 81 must be read within a separation of

powers context. The Governor shall take care to faithfully execute the laws

enacted by the General Assembly.

With KRS 247.100, the General Assembly created an independent,

municipal, de jure corporation that is not a fourth branch of government, but

rather, a board that remains part of the Executive Branch, with presumed fiscal

transparency and reporting to the General Assembly, and a measure of statutory

independence from the Governor’s administration. While the Governor raises

concerns about the transparency of the newly restructured board, particularly, in

light of the monies provided from taxpayer funds, we cannot find that this portion

-35- of the legislation clearly violates the Constitution. The circuit court concluded that

so long as the State Fair Board remains under the authority of the Executive

Branch, the Legislature is free to determine the board’s procurement practices and

make it an independent agency. The circuit court stated that what matters is that

there is executive oversight, the absence of which would trigger a violation of the

separation of powers. We agree.

Precedent supports the contention that state agencies can be attached

to the Executive Branch for budgetary purposes but also maintain an independent

corporate structure. See Bevin, 498 S.W.3d at 380 (citations omitted) (“Unlike []

cabinets and boards, the Universities’ boards are separate ‘bod[ies] corporate, with

the usual corporate powers.’”). In Bevin, former Governor Bevin asserted

gubernatorial authority over our state universities, but the Supreme Court upheld

their statutory independence as “separate bodies corporate” over the operation of

their respective institutions. Id. It is clearly no coincidence that KRS 247.100(2)

used this same language in restructuring the State Fair Board. Similarly, in

University of Kentucky v. Moore, 599 S.W.3d 798, 808 (Ky. 2019), the Supreme

Court held that an agency can be part of the Executive Branch while maintaining

“statutorily recognized independence” in many respects, from the Governor.

Finally, although factually distinct, LRC further supports the

contention that budgetary enactments are a legislative matter, and it is simply “the

-36- duty of the Governor as the Chief Executive to carry out and to implement the

budget which is passed by the General Assembly.” LRC, 664 S.W.2d at 925

(citation omitted). Again, the General Assembly

possesses the authority to enact any statute it deems necessary for the public interest, unless prohibited by constitutional provisions. In the exercise of that authority it may frame its enactments and express its intention and purpose as it sees proper, as long as it does not conflict with any inhibition contained in the Constitution of its state.

Dummit, 202 S.W.2d at 996 (emphasis added).

We find no such conflict; restructuring the State Fair Board into an

independent, municipal, de jure corporation does not conflict with any specific

Constitutional provision, nor does it cross the boundary of the separation of

powers, because the Executive Branch maintains ultimate control.

The Appellants argue in various briefs and motions, that this

independent corporate structure is not unique to the State Fair Board. However, it

is worth mentioning that the existence of similar language in existing and pending

legislation is not – standing alone – persuasive as to its constitutionality here. The

boards and commissions of this Commonwealth vary greatly from legislative

intent, role in government, organization and oversight, structure, and obligations.

To argue the General Assembly can create an independent de jure corporation out

of a state board now, because it did so once before – is unpersuasive and akin to

-37- saying: “I can drive down this street now, because I drove down a different street

last week.” The correlation and presumptiveness are misplaced. Similarly, our

analysis as to the changes made to this board does not necessarily apply to other

boards and commissions that have been restructured in recent legislation.

Turning to the next section, KRS 247.110(1) removes the Governor’s

authority to appoint the chair and vice chair of the State Fair Board, transferring

that authority to the voting members of the State Fair Board. The Governor argues

this effectively ensures that none of the Governor’s appointees will ever serve as

chair or vice chair. The circuit court’s order simply found the total shifting of

power to appoint a majority of members away from the Governor and prohibiting

the Governor from appointing voting members whose terms had expired in 2021,

was unconstitutional. The circuit court did not find that the State Fair Board

choosing its own chair and vice chair violated the Governor’s authority as chief

magistrate. We do not either. Precedent indicates that such a transfer or

restructuring of the board is not unconstitutional. When the Legislature confines

itself to establishing the parameters of executive appointment without injecting

itself directly into the process, or reducing the supreme executive power to an

empty shell, there is no encroachment upon the exercise of the Executive Branch.

See Prater v. Commonwealth, 82 S.W.3d 898, 907-09 (Ky. 2002). We find no

-38- violation of the Constitution in the restructuring of the State Fair Board to permit

members to appoint their own chair and vice chair.

D. Severability

Finally, we agree with the circuit court as to the severability of the

unconstitutional portions of KRS Chapter 247. There is a presumption of

severability created by statute in this Commonwealth.

It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.

KRS 446.090.

Here, the General Assembly – in enacting KRS Chapter 247– did not

refer to severability nor the lack thereof; the remaining provisions are not so

“connected with” nor “dependent upon” the removal of the provisions appointing

the House Speaker and Senate President to the State Fair Board. The remaining

aspects of the KRS Chapter 247 modifications are complete and capable of being

executed in accordance with the intent of the General Assembly. As such, KRS

247.090(1)(c), (d), (g), (h), and (n) are severable and the unconstitutionality of

-39- these provisions does not render the remainder of the changes to KRS Chapter 247

unconstitutional.

Lastly, due, in part, to the consistency of our Opinion now – with the

June 2022 Order from this Court’s motion panel – we see no need to challenge the

status quo as it relates to the injunction. In so ruling, we adopt the language of that

motion panel Order as follows:

it appears to the Court that the trial court’s stay is, for the moment, the least injurious solution to the [State Fair Board] and the public. . . . What will remain of HB 518, if anything, is unclear. If the stay is lifted, the composition of the [State Fair Board] may well be adjusted throughout the pendency of this appeal, only to be restored or altered in some other way at the conclusion of the appeal. We believe overturning the stay to the extent that it involves the two ex officio members controlled by the legislature, but preserving the composition of the voting members, accomplishes this same end.

IV. CONCLUSION

Therefore, the KRS Chapter 247 modifications are upheld, with the

exception of the aforementioned subsections of KRS 247.090(1).

We AFFIRM the Jefferson Circuit Court as it found (1) the

appointment of legislators or their designees as ex officio members of the State Fair

Board unconstitutional, (2) shifting the power to appoint a majority of voting

members from the Governor to the Agriculture Commissioner and prohibiting the

Governor from appointing voting members whose terms expired in 2021

-40- unconstitutional, (3) the remainder of the KRS Chapter 247 modifications

constitutional, and (4) that the unconstitutional provisions are severable from the

remainder of the KRS Chapter 247 modifications.

CALDWELL, JUDGE, CONCURS.

ACREE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.

ACREE, JUDGE, DISSENTING: Respectfully, I dissent. I see no conflict

between HB 518 and the Kentucky Constitution. The “big picture” is this—the

People13 of Kentucky long ago expressly removed from the Governor all power to

appoint individuals to fill non-constitutional offices by granting that power and

more, whole-hog, to the General Assembly. And despite efforts by some to

reinstate those powers to the office of the Governor, the People never did.

If this three-part dissent resembles a law review article in length and

citation, it is because some cases require jurists to be legal scholars and not mere

dispute arbiters. This is such a case. But this dissent attempts far more than

simply stating disagreement with the majority.

This dissent strives to reveal old lies perpetrated on bench and bar,

intentionally at first but perpetuated because we trust that our judicial forebears

13 “All the American political writers, &c., use the term people to express the entire numerical aggregate of the community, whether state or national, in contradistinction to the government or legislature.” Luther v. Borden, 48 U.S. 1, 22, 12 L. Ed. 581 (1849) (emphasis in original).

-41- knew the truth and told it in our jurisprudence. That trust proves to be misplaced

in this area of constitutional law and belief in these lies led to the circuit court’s

error here. The lies are these:

(1) the purpose in calling the 1890 Constitutional Convention was to restrain legislative power;

(2) the power to appoint is executive in nature and can only be exercised by the Executive Department;

(3) the Kentucky Constitution’s §§ 27 and 28 are special and function differently than the separation-of-powers provisions of other states; and

(4) Thomas Jefferson authored those sections of our Constitution.

I am convinced, and hope to persuade others, that none of these statements is true.

Part One explains why and how, in 1850, the People removed

appointment powers from the Governor and gave them to the General Assembly,

and why they did not return those powers in 1891 when given the opportunity.

Part Two analyzes the circuit court’s errant reliance on North Carolina

jurisprudence to adjudicate the Kentucky constitutional questions before us. The

fundamental constitutional differences between these states requires rejection of

North Carolina jurisprudence as a guide.

By far the longest, Part Three, critiques the jurisprudence leading to

the opinion commonly referenced as LRC v. Brown, or simply Brown. It implores

the Supreme Court to reconcile that opinion’s reference to the jurisprudential

-42- “veer[ing]” back and forth between contradictory constitutional principles when it

comes to analysis of § 93. See Legis. Rsch. Comm’n ex rel. Prather v. Brown, 664

S.W.2d 907, 921, 922, 923 (Ky. 1984) (Comm’rs of Sinking Fund v. George, 47

S.W. 779 (Ky. 1898), said there is “no express or implied provision in the

Kentucky Constitution which conferred the power to appoint . . . upon the

Governor”; Pratt v. Breckinridge, 65 S.W. 136 (Ky. 1901) (hereinafter Pratt 1)

“veered sharply” away from George; Sewell v. Bennett, 220 S.W. 517 (Ky. 1920)

“made a veer back” to George; Sibert v. Garrett, 246 S.W. 455 (Ky. 1922) “chose

to follow Pratt”; Craig v. O’Rear, 251 S.W. 828 (Ky. 1923) “another veer by the

Court . . . to retreat from Pratt and revitalize George”).

Although LRC v. Brown identifies the opinions in this oscillating

series, it fails to fully recognize its catalyst, Pratt 1, was rendered by what was

then a partisan-elected judiciary influenced by the deadly politics of its era. Pratt 1

was “utterly ignored” for decades as I will discuss, but nevertheless periodically

infected opinions that, when rendered, were at odds with the organic law of

Kentucky and remain so today.14 By following them, LRC v. Brown joined that list

of suspect opinions.

14 Organic law, BLACK’S LAW DICTIONARY (11th ed. 2019) (“organic law (1831) 1. The body of laws (as in a constitution) that define and establish a government[.]”).

-43- PART ONE

1. Ancient history and why it matters

Once upon a time, our Constitution vested Kentucky’s Governor with

broad authority to appoint nearly every office in state and local government. Both

our first and our second constitutions included the following enumerated power:

He [the Governor] shall nominate, and by and with the advice and consent of the Senate, appoint all officers, whose offices are established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for . . . .

CONST. OF KY. of 1792, art. II, § 8; CONST. OF KY. of 1799, art. III, § 9. That is,

the governor appointed every Executive Department officer we today elect, and

more.

Soon, the General Assembly did what this provision empowered it to

do. In 1805, it “established by law” the office of Assistant Secretary of State.

Page v. Hardin, 47 Ky. 648, 663 (1848). Thereafter, the Governor appointed each

man who held that office. But not just that position. It became “the practice of

successive Governors[,]” rather than the Secretary himself, to make even the

“appointments to [the Secretary’s] ministerial and clerical office[.]” Id. at 664.

The Governor’s broad enumerated powers of appointment were not to

last. “In 1849 there was quite a revolution in the manner of appointing officers in

this State.” I OFFICIAL REPORT OF THE PROCEEDINGS AND DEBATES IN THE

-44- CONVENTION ASSEMBLED AT FRANKFORT, ON THE EIGHTH DAY OF SEPTEMBER

1890, TO ADOPT, AMEND OR CHANGE THE CONSTITUTION OF THE STATE OF

KENTUCKY 1397 (1890) [hereinafter DEBATES (1890)] (Remarks of Mr. Petrie).15

The reference to “a revolution” was not hyperbole. The change was tectonic and

the delegates who gave us our current Constitution knew it. And, knowing it, those

delegates spent a fair amount of time making sure no counter-revolution in the

power of appointment succeeded.

What an example this is of the truth that history is the law’s driver.

History changes the law and in grander ways changes our constitutions. In 1850,

history changed Kentucky’s Constitution, but few lawyers or judges know why.

Unfortunately, what Stanford Law Professor Lawrence M. Friedman says is too

true: “Legal scholars and lawyers [a]re interested in precedents, but not in history;

they twist[] and use[] the past, but rarely treat[] it with the rigor that history

demands.” LAWRENCE M. FRIEDMAN, A HISTORY OF LAW 11–12 (Simon and

Shouster 2nd ed. 1985) (hereinafter FRIEDMAN). We can no longer afford to take

that approach.

We must give more than lip service to the notion “that courts in

construing constitutional provisions will look to the history of the times and the

15 Hazel Graham Petrie (1820-1900), delegate from Todd County, served on the Todd County Court and served briefly as a representative to the Kentucky General Assembly (1841). He was elected to the Kentucky Senate in 1891.

-45- state of existing things to ascertain the intention of the framers of the Constitution

and the people adopting it . . . .” Keck v. Manning, 231 S.W.2d 604, 607 (Ky.

1950). This is because “what the Constitution meant when adopted it continues to

mean.” Runyon v. Smith, 212 S.W.2d 521, 524 (Ky. 1948). As has been said: “we

are dealing with our fundamental law. It is not outdated, or obsolete, or contrary to

any policy we know of. . . . This law today is just as vital and enforceable as it was

the day it was written into the Constitution.” Gillis v. Yount, 748 S.W.2d 357, 360

(Ky. 1988) (quoting Russman v. Luckett, 391 S.W.2d 694, 697 (Ky. 1965)).

But why bring up ancient history going back a century before our

current Constitution was adopted? Because deciding constitutional issues requires

a complete context. The context of the General Assembly’s appointment powers is

not complete without an understanding of the evolution of those powers over time.

Three Kentucky judicial opinions handcuffing the General

Assembly—Pratt 1, Sibert, and LRC v. Brown—represent attempts by judges to

right what they saw as errors of the times in which they were rendered. We should

know by better examples that such attempts during desperate eras are fraught with

peril and are a danger to our jurisprudence. See, e.g., Dred Scott v. Sandford, 60

U.S. 393, 15 L. Ed. 691 (1857); Plessy v. Ferguson, 163 U.S. 537, 538, 16 S. Ct.

1138, 1138, 41 L. Ed. 256 (1896); Korematsu v. United States, 323 U.S. 214, 65 S.

Ct. 193, 89 L. Ed. 194 (1944).

-46- 2. Why the governor was “shorn” of appointment power in 1849

Before mid-nineteenth century, the same species of power granted to

Kentucky’s chief executive in our first two constitutions emboldened President

Andrew Jackson to institute the “spoils system” of partisan patronage. Senator

Henry Clay declared it an “odious system” by which “the offices, honors and

dignities of the people were . . . put up to a scramble” and said the system “would

finally end in . . . despotism.”16 8 Reg. Deb.17 1324 (1833) (Remarks of Mr. Clay).

Such abuse was not limited to the federal chief executive magistrate.

The spoils system became “well established in several state governments.” II The

Civil Service and the Statutory Law of Public Employment, 97 HARV. L. REV.

1619, 1624 (1984) (emphasis added). It was well established in Kentucky.

Opposition to Kentucky’s chief executive magistrate’s appointment

power mounted and is reflected in an editorial: “[T]he whole system of official

16 “It may be correct that the patronage system . . . [was] in existence when the Constitution was adopted. However, the notoriety of the practice in the administration of Andrew Jackson in 1828 implies that it was not prevalent theretofore . . . .” Illinois State Emps. Union, Council 34, Am. Fed’n of State, Cnty. and Mun. Emps., AFL-CIO v. Lewis, 473 F.2d 561, 568 n.14 (7th Cir. 1972) (responding to Alomar v. Dwyer, 447 F.2d 482, 483 (2d Cir. 1971) (“spoils system has been entrenched in American history for almost two hundred years.”)). 17 Register of Debates in Congress.

-47- appointments and tenures in this state is one vast mart for the sale and retention of

official plunder.” Editorial, KENTUCKY YEOMAN (Frankfort), Oct. 6, 1846.18

Public outcry was pervasive, and, on October 1, 1849, Kentucky

convened its third Constitutional Convention. REPORT OF THE DEBATES AND

PROCEEDINGS OF THE CONVENTION FOR THE REVISION OF THE CONSTITUTION OF THE

STATE OF KENTUCKY 2 (1849) [hereinafter DEBATES (1849)]. “To curtail the

power of appointment to office by the executive . . . was one of the leading

objects” of that Convention. Speed v. Crawford, 3 Met. 207, 211, 60 Ky. 207, 211

(1860) (emphasis in original).

Convention delegates were themselves eager for reform. One

delegate, former United States Congressman Benjamin Hardin,19 said:

[F]or five years back I have been exceedingly anxious for the call of a convention. I discovered that great abuses had crept into our government—very great abuses—especially in the appointing power, and that in the language of Jefferson, “power is always stealing away from the many to the few . . . .”

18 As quoted in Gertrude Pettus, The Issues in the Kentucky Constitutional Convention 1849-1850 (1941) (Ph.D. Dissertation, University of Louisville) (on file with ThinkIR, University of Louisville) (https://doi.org/10.18297/etd/1846). 19 Benjamin Hardin (1784-1852) of Hardin County served in the Kentucky House of Representatives (1810, 1811, 1824, 1825), the Kentucky Senate (1828-1832), and the United States House of Representatives (1815-1817, 1819-1823, 1833-1837); he served as Kentucky Secretary of State (1844-1847). Biographical Directory of the U.S. Congress, Benjamin Hardin: https://bioguideretro.congress.gov/Home/MemberDetails?memIndex=H000184.

-48- DEBATES (1849) 199 (Remarks of Mr. Hardin). He was hardly alone in his

opposition to the gubernatorial power of appointment. Another equally

credentialed delegate said:

[W]hen you come to . . . minor ministerial offices, I utterly condemn and abhor that piratical principle that would eject men . . . not acceptable to the incumbents having the appointing power. Such a principle is oppression and tyranny, and I would like to see the free people of this country trample it in the dust and annihilate it.

DEBATES (1849) 21 (Remarks of Mr. Davis).20

In the end, Congressman Hardin was satisfied with the fruits of his

efforts.21 When he summarized the accomplishments of the 1849 Convention,

stripping the chief executive magistrate of appointment powers was first on his list:

“Now we have done all the people claimed. We have taken the appointing power

from the governor . . . .” DEBATES (1849) 1080 (Remarks of Mr. Hardin).

The state’s largest circulation newspaper reported what the People of

Kentucky ratified by voting for the new Constitution, saying, “The Governor under

20 Garrett Davis (1801-1872), delegate from Bourbon County, served in the Kentucky House (1833-1835), the United States House of Representatives (1839-1847), and the Senate (1861- 1872). He declined nominations as Lieutenant Governor (1846), Governor (1855), and as American Party candidate for President (1856). Biographical Directory of the United States Congress, Garrett Davis: https://bioguideretro.congress.gov/Home/MemberDetails?memIndex=D000099. 21 Mr. Hardin may well have led the charge for the 1850 Convention for in his closing remarks he said, “When I first started this question of a convention, it was doubtful whether we would have a majority . . . .” DEBATES (1849) 1080 (Remarks of Mr. Hardin).

-49- the new constitution will be a far different officer, so far as power and patronage is

concerned.” WEEKLY COURIER-JOURNAL (Louisville, Ky.), Dec. 5, 1849, at 2.

“He may still pardon criminals[,]” said the writer, “he may still veto an act of the

General Assembly if he see fit; but with these exceptions he is almost wholly shorn

of power.” Id.

3. Appointment power reassigned to General Assembly by 1850 Constitution

If the 1850 Constitution sheared the Governor of the power to appoint

most state officers, to whom did Kentucky citizens grant that power?

“By article 3, section 25[22] [of the 1850 Constitution], it is provided,

in substance, that the higher state officers shall be elected, but inferior state

officers, not specially provided for, shall be appointed or elected.” Speed, 60 Ky.

at 211. But appointed or elected by whom?

That section retains for the People the power to elect certain

constitutional officers they theretofore allowed the Governor to appoint. As for all

22 In our first three constitutions, individual sections were segregated in articles designated by Roman numerals and title. The text of judicial opinions sometimes refers to a Constitution’s provision by first identifying the article and then the section. At other times, the section is identified first, followed by the article. Usually, Arabic numerals rather than Roman numerals were used to identify the articles. Our current Constitution numbers the sections sequentially without regard to the topic under which the sections are grouped. However, separate divisions remain. Relevant to this dissent, the current Constitution begins with an unnumbered “Preamble,” followed by the “Bill of Rights” (Sections 1 to 26), “Distributions of the Powers of Government” (Section 27, 28), “Legislative Department” (Sections 29 to 62), and after a few sections not pertinent here, there is the “Executive Department” (Section 69 to 108). Additionally, as will be touched on later as relevant, there is “Suffrage and Elections” (Sections 145 to 155).

-50- other officers, the People empowered the General Assembly the plenary authority

to decide. Standeford v. Wingate, 63 Ky. 440, 448 (1866) (“[A]s to all offices

created by the Legislature, the Constitution has left the tenure, as well as the office,

to legislative discretion, with plenary power to regulate it by ‘law’ . . . .”).

But before further addressing this section of the 1850 Constitution, we

must acknowledge three things essential to our review of this appeal.

First, section 25 from the 1850 Constitution’s article III is in no way

different from § 93 as adopted in 1891. Compare CONST. OF KY. of 1850, art. III, §

25 with CONST. OF KY. of 1891, § 93.23 There is no reason our high court’s

opinions interpreting that 1850 constitutional provision should be ignored simply

because they predate the 1890 Constitutional Convention. Fox v. Grayson, 317

S.W.3d 1, 17 (Ky. 2010) (“[C]ontemporaneous legislative explanation or

clarification of a constitutional provision should ordinarily be given deference by a

reviewing court.”). What the courts and legislators and especially the 1890

Convention delegates said article III, section 25 of the 1850 Constitution meant

should be heeded as we seek to define the scope of § 93.

“[T]he members of the last constitutional convention . . . were familiar

with the legislative construction of the language distributing the powers of

government under the former Constitution, and, so knowing, they re-enacted this

23 See footnote 50, infra (comparing relevant language of these constitutional provisions).

-51- language, and with it, of necessity, the construction which had theretofore been

placed upon it.” Bullitt v. Sturgeon, 105 S.W. 468, 472 (1907). See Muhlenburg

Cnty. v. Morehead, 46 S.W. 484, 484–85 (Ky. 1898) (applying precedent of

Pennington v. Woolfolk, 79 Ky. 13 (1880), that determined the constitutionality of

a statute under CONST. OF KY. of 1850, art. I, §§ 1, 2 to analyze constitutionality of

a similar statute under §§ 27 and 28; the same point logically applies to

interpretation of § 93 as it transitioned, unchanged, from CONST. OF KY. of 1850,

art. III, § 25).

Second, although both article III, section 25 and § 93 grant the

enumerated power of appointment to the General Assembly,24 neither is found in

the article of their respective constitution addressing the Legislative Department.

They were lodged by the People in the Executive Department articles. Expressly,

intentionally, and specifically, these all but identical provisions are primarily a

restriction of any general power the Governor might otherwise claim as emanating

from the sections identifying that office as head of the executive branch and stating

expectations that he see the laws are faithfully executed.

24 As discussed, infra, “enumerated powers necessarily include those which are reasonably incidental and indispensable to their proper exercise and to the accomplishment of the purpose of their creation and existence and the object to be attained.” Bell Cnty. Bd. of Educ. v. Lee, 239 Ky. 317, 39 S.W.2d 492, 494 (1931).

-52- Third, we should take special note that the 1792 Constitution is the

source for every word of the sections Appellees claim implicitly grant the

Governor appointment powers—namely, §§ 27, 28, 69, 76, and 81. So, one might

ask, if they are enough in themselves today as Appellees say, why was an express

grant of appointment power to the Governor required in the first two constitutions?

Such an express grant would be redundant if Appellees’ thinking is correct.

The answer is that the language of those sections never was enough,

not then and not today, and all the jurisprudence going back to the date of

Kentucky’s statehood explains why. For ready reference, the evolution of all the

significant constitutional provisions implicated by our appellate review is

illustrated by this table.

Table 1

Constitution Topic 1792 1799 1850 1891 Three distinct departments Art. I, §1 Art. I, §1 Art. I, § 1 § 27 No department exercises power of another Art. I, § 2 Art. I, § 2 Art. I, § 2 § 28 Supreme executive power vested in Art. II, § 1 Art. III, § 1 Art. III, § 1 § 69 Governor Governor to appoint “all officers” Art. II, § 8 Art. III, § 9 No corollary25 No corollary26

25 In the 1850 Constitution, by virtue of article III, section 21, the Governor retained power to appoint the Secretary of State because the delegates believed “the secretary would be the confidential advisor of the governor.” DEBATES (1849) 732–33 (Remarks of Mr. Archibald Dixon, delegate from Henderson). All other superior and inferior state offices were filled in accordance with article III, section 25 of the 1850 Constitution. Even that power was taken away from the Governor when Secretary of State became an elected office. 26 Section 91 of the current Kentucky Constitution removed the Governor’s power to appoint the Secretary of State found in the 1850 Constitution, article III, section 21, by making the office of Secretary of State an elected office on par with other offices of the State at Large.

-53- Governor’s power to fill vacancies Art. II, § 9 Art. III, § 10 Art. III, § 9 § 76 Governor to take care laws faithfully Art. II, § 14 Art. III, § 15 Art. III, § 14 § 81 executed Inferior officers appointed/elected as per No corollary No corollary Art. III, § 25 § 93 law

To be clear as possible, section 25 of the 1850 constitutional article on

the Executive Department expressly prohibited the Governor’s exercise of power

he might have claimed as implicit in the 1850 Constitution’s article III, section 1

(“supreme executive power,” now § 69) and section 14 (“faithful execution,” now

§ 81)—general provisions that appear nearly identically in every Kentucky

constitution.27 Understanding how these prohibitions manifested in 1849 and were

reaffirmed in 1890, as discussed below, is essential to our review. The

prohibitions took two forms.

The first part of article III, section 25 expressly deprived the Governor

of his former authority to appoint certain state constitutional officers (e.g.,

Treasurer, Attorney General), who have ever since been elected by the voters.

CONST. OF KY. of 1850, art. III, § 25. This departed from the federal model which,

27 Prior versions of the Constitution’s § 69 read as follows: “The supreme executive power of this Commonwealth shall be vested in a Governor.” CONST. OF KY. of 1792, art. II, § 1. “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.” CONST. OF KY. of 1799, art. III, § 1. “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.” CONST. OF KY. of 1850, art. III, § 1. Prior versions of the current constitution’s Section 81 read as follows: “He shall take care that the laws be faithfully executed.” CONST. OF KY. of 1792, art. II, § 14. He shall take care that the laws be faithfully executed.” CONST. OF KY. of 1799, art. III, § 15. “He shall take care that the laws be faithfully executed.” CONST. OF KY. of 1850, art. III, § 14.

-54- to this day, empowers the President to appoint the federal counterparts to these

officers upon Senate confirmation. U.S. CONST. art. II, § 2, cl. 2.

Furthermore, article III, section 25 deprived the Governor of any

power to define the “duties and responsibilities” of these constitutional officers,

stating such duties were thereafter to “be prescribed by law”—that is, to be

determined by the General Assembly. CONST. OF KY. of 1850, art. III, § 25. The

Governor exercised that power under the prior constitutions.

More relevant to the issues before us, the second part of this section

removed from the Governor the enumerated powers of appointment of inferior

state officers—enumerated powers he alone enjoyed under both prior

constitutions.28 In its place, article III, section 25 said, henceforth, “inferior State

officers, not specially provided for in this Constitution, may be appointed or

elected in such manner as shall be prescribed by law”—again, appointed or elected

in such manner as the General Assembly decides. Id.; Johnson v. Commonwealth

ex rel. Meredith, 165 S.W.2d 820, 828 (Ky. 1942) (“[D]efinition of ‘prescribe’ is

‘to direct; to ordain.’ It is not so narrow as to be confined to a positive order[.]”).

As I discuss below, when faced in 1849 and again in 1890 with the opportunity to

model the Federal Constitution and restrict the General Assembly’s appointment

powers by limiting the “manner” of appointing or by limiting what may be

28 Again, CONST. OF KY. of 1792, art. II, § 8; CONST. OF KY. of 1799, art. III, § 9.

-55- “prescribed,” the delegates of those conventions elected not to do so. In our pre-

1891 jurisprudence, there never was a question of the General Assembly’s power.

Our highest court has always followed the rule of construction that

“[w]henever a jurist inquires whether a State statute is consistent with the State

Constitution, he looks into that Constitution, not for a grant, but only for some

limitation of the power inherent in the people’s legislative organ so far as not

forbidden by their organic law.” Griswold v. Hepburn, 63 Ky. 20, 24 (1865), aff’d,

75 U.S. 603, 19 L. Ed. 513 (1869).

For example, when confronted with a statute designating the manner

of electing a municipal office, the jurists of the former Court of Appeals addressed

the “failure to make specific provision in the constitution” for the legislative

authority to determine how that office was to be filled. Buckner v. Gordon, 81 Ky.

665, 670 (1884) (emphasis added). The Court said specific authority was

unnecessary under the rule just stated. Accounting for the various constitutional

provisions granting appointment powers to the General Assembly (all of which

were readopted in similar form in 1891), the Court said:

These provisions of the constitution present a complete corps of officers for the administration of the State government, executive, legislative, judicial, and ministerial, designated in the constitution and provided for by legislative action . . . . [F]ailure to make specific provision in the constitution for [specific officers] clearly shows the intention of the framers of the constitution to leave all these matters to the legislative will.

-56- Id. (emphasis added). That is, the Court found no restriction on the General

Assembly’s plenary power of appointment, certainly not in the nearly identical

predecessors to the constitutional sections upon which Appellees rely.

Buckner v. Gordon, supra, was not a difficult decision. The Court had

already concluded not only that the Constitution granted the General Assembly the

power to create such offices and establish the manner in which they are to be filled,

the Court held the General Assembly could change that entire statutory scheme just

by amending the statute. Smith v. Commonwealth, 71 Ky. 108, 112–13 (1871).

See also Allen v. Hollingsworth, 56 S.W.2d 530, 531 (Ky. 1933) (“Apart from

restraints of the organic law, the Legislature has plenary powers in respect to the

establishment and regulation of the government of municipalities[.]”).

Without question, the powers of appointment originally enjoyed by

the Governor under the first two constitutions have been reassigned since 1850 as

enumerated powers of the General Assembly with plenary authority to exercise

them. Bell Cnty. Bd. of Educ. v. Lee, 39 S.W.2d 492, 494 (Ky. 1931)

(“[E]numerated powers necessarily include those which are reasonably incidental

and indispensable to their proper exercise and to the accomplishment of the

purpose of their creation and existence and the object to be attained.”).

Furthermore, “‘Plenary power in the legislature for all purposes of

civil government is the rule,’ with uncontrolled authority in making the laws within

-57- the limits of the constitution.” Commonwealth v. Whipps, 80 Ky. 269, 279 (1882)

(quoting THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS

WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN

UNION 88 (1874)29 [hereinafter CONSTITUTIONAL LIMITATIONS]). As I discuss

below, nothing happened at the 1890 Constitutional Convention to change these

parts of our Constitution, and these principles remain the organic law and rules of

construction to this day.

The COURIER-JOURNAL was right in 1849—when it came to

appointing constitutional and inferior State officers and filling vacancies, the

Governor was “wholly shorn of power.” That begs a question: Did the 1890

Constitutional Convention delegates restore the powers of appointment, removal,

and broader vacancy-filling the Governor enjoyed before 1850? If the circuit

court’s decision in the instant appeal is to be affirmed, we would have to answer in

the affirmative. But that clearly is not what happened.

4. Why the 1890 Constitutional Convention was called

Here is a good place to call out Appellees’ representation that the

1890 Constitutional Convention was called “to restore the separation of powers”

29 Cooley was quoting People ex rel. Wood v. Draper, 15 N.Y. 532, 543 (1857), which says in full:

Plenary power in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden.

-58- and “[t]his resulted in Sections 27 and 28 of the Kentucky Constitution.”

(Appellees’ brief, pp. 11–12; Complaint, ¶ 41). Of course, this is wrong. These

provisions are so basic to our form of government they were included in each of

our constitutions and the records show they never were a point of debate.

But just how wrong are Appellees? Part owner and editor of the

COURIER-JOURNAL and famed journalist in his own right, Henry Watterson,30 tells

us. Watterson “had been eager, even militant, for the [1890] convention” but, as it

was coming to an end, he lamented:

The convention, in fact, has ignored almost entirely the distinctions between the three departments, executive, judicial and legislative. . . . [I]t has failed to mark distinctly the divisions of the three departments of State. Only in the last few weeks was the fact brought to the attention of the convention that it has omitted the ordinary declaration to the effect that the government should be divided into three departments. Without debate that clause [§ 27, along with § 28] was inserted, but through all its deliberations the convention has ignored this principle . . . .

HAMBLETON TAPP AND JAMES C. KLOTTER,31 KENTUCKY: DECADES OF DISCORD,

1865–1900 266 (1977) [hereinafter DECADES] (quoting COURIER-JOURNAL

(Louisville), Apr. 11, 1891). The provisions now contained in § 27 and § 28 were

30 Watterson “personified the best . . . of Kentucky journalism in the nineteenth century.” HAMBLETON TAPP AND JAMES C. KLOTTER, KENTUCKY: DECADES OF DISCORD, 1865–1900 266 (1977) [hereinafter DECADES] (footnote omitted). 31 James Klotter has served as Kentucky’s State historian since 1980. This work by Klotter and Tapp was recommended reading in LRC v. Brown, although the Court misstates the title as covering the years 1865-1906 instead of 1865-1900. Brown, 664 S.W.2d at 922 n.20.

-59- so taken for granted—the concept of a tripartite republican form of government so

taken for granted—they were nearly overlooked. Kentucky was that close to

following the federal lead and leaving them out altogether.

I do not dispute Appellees’ assertion that some “delegates to the

Constitutional Convention [of 1890] sought to ‘curb the power of the General

Assembly[.]’” (Appellees’ brief, p. 11) (quoting LRC v. Brown, 664 S.W.2d at

912). But that oversimplifies the issue and ignores that many efforts to limit that

power failed, including in an area touched upon by the issues in this case—the

creation of offices and boards.

When Delegate J. M. Wood32 proposed an amendment to what is now

§ 23 to limit the General Assembly’s authority to create new offices of indefinite

duration, he suggested that, in this area, “[i]t is the desire of a great many people

that there should be some limitation put on the Legislature.” I DEBATES (1890)

1009 (Remarks of Mr. Wood). There was but one response: “I hope the

amendment will not be adopted. This power should be vested in the Legislature[,]”

said the delegate from Warren County. Id. (Remarks of Mr. Rodes).33 “I think it

32 J. M. Wood (d. 1901), delegate from Green and Taylor Counties, was a lawyer and served in the Kentucky General Assembly. In 1899, he was an unsuccessful candidate for Governor. HARTFORD HERALD (Hartford, Ky.), Dec. 22, 1897, p. 3; ADAIR COUNTY NEWS (Columbia, Ky.), Sep. 11, 1901, p. 4. 33 Robert Rodes (1824-1913), delegate from Warren County, was a Centre College graduate and lawyer who served in the Kentucky General Assembly 1853-1854. GENERAL CATALOGUE OF THE CENTRE COLLEGE OF KENTUCKY 32 (1890).

-60- can be safely left with the Legislature.” Id. Wood’s amendment was rejected by

voice vote. I DEBATES (1890) 1009 (“Upon a vote, the amendment was rejected.”).

It seems the further removed from those events of 1890 the more

congealed is the narrative that the Convention was about one issue—taming a

tyrannical legislature. If that is not outrightly false, it certainly is incomplete in its

truth. But how did we come to embrace the idea of a single-issue convention?

This congealing might have begun in 1977 when the Supreme Court’s

researchers of the 1890 Constitutional Convention Debates turned to a simple 1971

public information pamphlet prepared by a Legislative Research Commission

worker who got it wrong. Fiscal Court of Jefferson Cnty. v. City of Louisville, 559

S.W.2d 478, 480 n.1 (Ky. 1977) (quoting “Constitution of the Comm. of Ky.

L.R.C. Info. Bull. # 59 (1971) at vii.”). Citing no authority on this point but a

nameless state employee who misquoted a nameless delegate without context, the

Supreme Court said it:

[wa]s convinced that the debates indicate that most of the delegates felt that the root of Kentucky governmental problems was the almost unlimited power of the General Assembly. One of the delegates said: “The principal if not the sole purpose of the constitution we are here to frame is to restrain its (the legislature’s) will and restrict its authority.”

Id. (emphasis added). We should all be surprised our highest court could be so

easily convinced of something so important as this by the single sampling of a

-61- single anonymous voice. Whether the Court or the pamphleteer added this

emphasized phrase in the parenthetical, “(the legislature’s),” I do not know. But if

the Court had researched for itself, it would have discovered even the voice of that

one delegate, anonymous to the Court then, did not urge a restraint of the

legislature, but of government itself.

The delegate to whom the pamphleteer attributes this quote was

speaking of the power of state government, not simply the power of the legislature.

I DEBATES (1890) 462 (Remarks of Mr. Knott).34 The debate was over the

wording of the Constitution’s Preamble. Id. at 461. Delegate Proctor Knott, a

former governor, offered a criticism of the language used, “however immaterial it

may appear[,]” taking exception to the Preamble’s use of the term “free

government.” Id. He said, although frequently used “in political and juridical

literature, it is, nevertheless, an inapt expression[.]” Id.

Mr. Knott’s actual sentiment is certainly not what the Court in Fiscal

Court of Jefferson County represented. He actually said:

The very word government implies restraint. To apply [the phrase “free government”] to the agency organized by a free people to regulate their public affairs, would be manifestly improper, for the simple reason that the 34 James Proctor Knott (1830-1911), delegate Marion, was born there but entered politics in Missouri where he served in the Missouri House of Representatives (1857-1859) and as attorney general (1859-1862). Returning to Marion County, he served Kentucky in the U.S. House of Representatives (1867-1871, 1875-1883), as Governor (1883-1887), as the assistant attorney general (1887-1888), and Dean of Centre College Law School (1894-1901). James Proctor Knott - National Governors Association: https://www.nga.org/governor/james-proctor-knott/.

-62- principal, if not the sole purpose of the Constitution which we are here to frame, is to restrain its [government’s] will and restrict its authority . . . .

Id. The Supreme Court erroneously, and I must presume mistakenly because of the

ridiculously superficial nature of its research, changed the delegate’s meaning from

a basic, universally accepted description of limited government to a disparagement

of just one of its branches. Mistakes like these in opinions of such magnitude are

consequential and cannot be left unnoticed or uncorrected.35 They carry over to

future opinions, like LRC v. Brown.

Some historians say the 1890 Convention was called to “control

legislative excesses[.]” Sheryl G. Snyder & Robert M. Ireland,36 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) [hereinafter Snyder &

Ireland, Analysis]. But even they are quick to note the problem was not the result

of a power grab unique to Kentucky’s legislature. It was “a national problem” that

35 Mr. Knott’s speech spans twelve (12) pages and takes forty-five (45) minutes to read aloud. 1 DEBATES (1890) 461–73. In candor, he does take the General Assembly to task for its penchant for special legislation. On the other hand, he wanted to further empower the General Assembly by making every “franchise be revocable at the will of the Legislature” because he believed “this country has groaned under the rule established in the Dartmouth College case,” Trs. of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), calling it a “false principle” that every charter granted by a state is a contract protected against state government impairment by the Constitution, U.S. CONST. art. I, § 10, cl. 1. 1 DEBATES (1890) 472 (Remarks of Mr. Knott). 36 Mr. Snyder was counsel for the appellees in LRC v. Brown. Dr. Ireland, “[a] noted Kentucky constitutional historian[,]” testified in the case before the circuit court. Brown, 664 S.W.2d at 912.

-63- evolved independently in many state legislatures as a political temptation—

“preoccupation with local and private matters[.]” Id. at 168. See, e.g., State v.

Circuit Court of Gloucester Cnty., 15 A. 272, 294 (N.J. 1888) (“constitutional

provisions in reference to special legislation are of comparatively recent growth,

and the adjudications on the point now involved are not numerous” (Reed, J.,

dissenting)); Sample v. City of Pittsburg, 62 A. 201, 206 (Pa. 1905) (Before 1874,

“there was practically no constitutional restraint on the power of the General

Assembly to enact local or special legislation.”). It was originally understood that

“[s]pecial or private acts are rather exceptions than rules, being those which only

operate upon particular persons and private concerns.” Cabell v. Cabell’s Adm’r,

58 Ky. 319, 328 (1858) (quoting “Blackstone (1st vol., 86)”). In the nineteenth

century, they became far more common than Blackstone envisioned.

This legislative preoccupation is easy to explain. Passing special

legislation local to a voting district benefitted the incumbent legislative candidate.

Said one Kentucky delegate, “the power of the General Assembly to pass local or

special bills, which influence their political prospects, should be curtailed[.]” IV

DEBATES (1890) 4816 (Remarks of Mr. McDermott).37 That problem became very

specific to Kentucky in the legislative session of 1889-90, just before the call of the

37 Edward J. McDermott (1852-1926), lawyer and delegate from Louisville, began serving in the Kentucky General Assembly in 1880 and was elected Lieutenant Governor in 1911. G. GLENN CLIFT, GOVERNORS OF KENTUCKY, 1792-1942, at 235–36 (1942) (hereinafter GOVERNORS).

-64- 1890 Convention. DECADES 264.38 But to suggest even a concern for special

legislation was the primary reason for the 1890 Convention is a bit myopic.

Unlike the 1849 Constitutional Convention with its clear and nearly

singular purpose to curtail the power of the chief executive magistrate, the 1890

Constitutional Convention was called for a host of reasons, not the least of which

was to address Kentucky’s constitutional provision still purporting to protect the

institution of slavery—it violated the Federal Constitution in that regard for a

quarter century. Other matters such as “revising the judicial system were felt by

many to necessitate the calling of a convention.” DECADES 258. A leading

delegate from Louisville gave us as good and comprehensive an explanation as any

why the Convention was called when he told us, “The experience of forty years

gathered from the unparalleled changes in political and social life in this country,

rendered many alterations in and additions to the Constitution not only important,

38 According to these authors:

One of the new provisions of which the convention delegates [of current and future legislators] seemed most proud was that prohibiting local, or special legislation. Because of the abuses of the 1889-90 Assembly, the delegates knew this relief to be timely. That assembly, sitting 149 days, had passed local legislation, covering 4,893 pages of legislative record, including index, at a cost in printing alone of $17,000, and in other respects its expenditures were $151,000.

The average time and cost of the four preceding legislatures had been little different. The new instrument [1891 Constitution] prohibits special laws on a large number of subjects, and in all cases where general laws can govern, and limits the legislature to a 60 days’ session.

DECADES 264 (footnotes omitted).

-65- but absolutely essential for good government.” IV DEBATES (1890) 5566

(Remarks of Mr. Young).39 That is a good reason to revisit the Constitution.

The Convention’s subcommittees created to tackle those political and

social issues hint at its breadth of purpose. Rouse v. Johnson, 28 S.W.2d 745, 748

(Ky. 1930) (“[T]here were divers and sundry committees appointed by it as a

necessary agency to its proper and appropriate functioning[.]”). Separate

committees addressed Education, Railroads, Corporations, Charities, Revenue and

Taxation, Suffrage and Elections, and even the Location of the Capital among

other topics. I DEBATES (1890) 131–33.

To support their position that the primary purpose of the Convention

was to rein in the General Assembly, both Snyder & Ireland in their article, and the

Court in LRC v. Brown, quote the remarks of Henry County delegate to the 1890

Convention, John D. Carroll.40 Snyder & Ireland, Analysis, at 167; 664 S.W.2d at

39 Bennett H. Young (1843-1919), lawyer and delegate from Louisville’s Fourth District, understood “unparalleled changes” on a personal level. Born and raised in Nicholasville, Young rode with John Hunt Morgan’s raiders as a private, became an officer, and led the Confederate attack on St. Albans, Vermont, on October 19, 1864. Excluded from President Andrew Johnson’s amnesty proclamation and unable to return home until 1868, he spent time studying law and literature in Ireland at the Queen’s University of Ireland and the University of Edinburgh. He returned to Louisville and became a prominent attorney and civic leader. After the 1890 Constitutional Convention, he befriended an ex-slave, George Dinning, and represented him in his federal civil rights lawsuit against leaders of the Ku Klux Klan, winning a $50,000 judgment. Ben Montgomery, A Shot in the Moonlight: How a Freed Slave and a Confederate Soldier Fought for Justice in the Jim Crow South 109–19, 176–214 (2021). See also Dinning v. Conn’s Adm’r, 99 S.W. 914 (Ky. 1907). 40 John D. Carroll (1854-1927), delegate from Henry County, served in the Kentucky General Assembly from 1881 to 1884. In late 1891, immediately after the Constitutional Convention,

-66- 912. But, after looking a little closer, I conclude the quote does not support the

thesis of either those authors or the Court.

Delegates’ remarks, such as Carroll’s, were always made in the

context of debate, not in isolation. Neither the article nor LRC v. Brown gives us

any context, but they should have. If they had, they might have been prompted to

find a quote that actually supports their view.

Carroll was arguing his own motion, and that motion was not for less

power in the General Assembly but for more power in the Governor—he was

arguing for a stronger, nearly override-proof veto power. I DEBATES (1890) 1478

(Mr. Carroll’s motion to amend section 21); 1481–83 (Remarks of Mr. Carroll).

Perhaps this was Carroll’s backhanded effort to curb special legislation. I

DEBATES (1890) 603 (Remarks of Mr. Bourland).41 But his effort was not well

received. His motion was strongly opposed, and the opposition was met with rare

Governor John Y. Brown appointed him to compile and edit the statutes of Kentucky which, for many years, were known as Carroll’s Code. He was appointed the first Commissioner of the Kentucky Court of Appeals in 1906 by Governor J. C. W. Beckham. A year later, Governor Beckham appointed Carroll to fill a judicial vacancy on the Court of Appeals where he served until 1920 after unsuccessfully seeking the Democratic nomination for Governor. PROCEEDINGS OF THE TWENTY-SIXTH ANNUAL MEETING OF THE KENTUCKY STATE BAR ASSOCIATION 109–10 (1927). 41 Harvey R. Bourland (c. 1835-1900), delegate from Hopkins County, said: “I hold in my hand a volume of 112 pages, and it is composed almost exclusively of veto messages from the Chief Executive of the Commonwealth of Kentucky at the 1888-9 session of the Legislature. . . . A large majority of the veto messages are of bills that were passed by the Legislature of the State granting special and exclusive privileges to some corporation, or exempting from taxation their property . . . .” 1 DEBATES (1890) 603. Bourland was an unsuccessful candidate for the Fifty- Second Congress running as the “Alliance candidate.” W. H. Michael, Fifty-Second Congress, Official Congressional Directory 48 (2nd ed. 1892).

-67- applause. “[T]he veto power of the Governor, as it now stands, is a very

considerable protection[,]” said Henderson County Delegate H. H. Farmer, “and

the members of this Convention and people of the State will sustain me, I hope, in

that opinion. (Applause.)” Id. at 1483–84 (Remarks of Mr. Farmer). Delegate

Carroll’s motion was roundly defeated. Id. at 1490 (motion defeated: Yeas–12,

Nays–75, Absent–13). If curbing the legislature was Carroll’s goal, empowering

the Governor was not going to be the means to get there.

LRC v. Brown also quotes a second delegate, again without context, to

support the Supreme Court’s notion that the 1890 Convention was called to cure

the General Assembly’s supposed usurpation of power. The Court said,

“According to delegate J. F. Askew,[42] there was a great necessity to ‘reform the

legislative department. . . .’ Id. [indicating citation to I DEBATES (1890)43] at

3821.” 664 S.W.2d at 912. The Supreme Court’s research failed it.

If the Supreme Court Justices had read this part of the DEBATES, they

would have learned Askew’s reason for speaking was distinctly not his belief the

legislature was corrupt. As explained below, Askew’s accusation, one he even

hesitated to make, was that the legislators were incompetent. He expressly

42 James F. Askew (1844-1919), delegate from Scott and another former Confederate, served in John Hunt Morgan’s command. He studied law at Transylvania University and served as a master commissioner and judge for Scott County. BOURBON NEWS (Paris, Ky.), Feb. 7, 1919, at 9. 43 The proper cite is to Volume III of the DEBATES, not to Volume I, as indicated here by the opinion author’s use of “id.”

-68- rejected the suggestion they were corrupt. Furthermore, if the Justices had read the

Debates, they would have learned Askew was not even expressing his own

concern, but that of a colleague back home.44

The issue Askew eventually participated in debating was a

recommendation by the Committee on the Legislative Department to reduce the

number of representatives from 100 to 60. III DEBATES (1890) 3107, 3801–39.

The committee’s rationale was two-fold: (1) electing fewer representatives saves

money; and (2) an individual representing a larger district, “of necessity, must have

that intelligence which extends far beyond the little partisan and local views that

often characterize the gentlemen of the Lower House[.]” Id. at 3814 (Remarks of

L. T. Moore, delegate from Boyd and Lawrence). Reducing the number of

representatives broadens their constituency and, so goes this thinking, improves

their competency.

Delegates differed on this logic but were uniform in their belief that

the quality and competency of Kentucky’s representatives was lacking as a whole.

A delegate from Fayette, Philip P. Johnston, did not agree with the logic of

reducing the number of representatives as a cure. “[T]he trouble has not been in

44 Snyder & Ireland did correct the Supreme Court’s mistake of attribution. Snyder & Ireland, Analysis 167.

-69- the number[,]” said Johnston. Id. at 3808 (Remarks of Mr. Johnston).45 “It has

been the lack of experience and the want of familiarity with the character of the

work to be done.” Id. Other delegates focused on saving money. One said it

would save “from $40,000 to $60,000 every year by the reduction which they

propose[.]” Id. at 3815 (Remarks of Mr. Moore). Another found that sum

preposterous. He calculated the math out loud before sarcastically reporting the

savings of “the enormous sum of $20 a day . . . . I am surprised at such proposed

economy[,]” he said; “We must not worship a dollar.” Id. at 3818 (Remarks of Mr.

Young). That is when Askew was motivated to speak up. He wanted to return the

conversation to the source problem.

Askew said he “had not intended to take any part in this discussion”

because he “never had the pleasure of being in the Legislature[.]” Id. at 3820,

3821 (Remarks of Mr. Askew). But he was “urged by an irresistible impulse, to

reply.” Id. He was not concerned about saving money. The delegates had already

approved prohibitions on most local and special legislation and, “local legislation

being cut off to a great extent, the sessions will not be long, and hence not

45 Philip Preston Johnston (1840-1925), delegate from Fayette, was a former Confederate officer who, after the Civil War, studied law in Lexington, becoming city attorney and eventually state Senator. He served as County Judge until elected to Kentucky’s House of Representatives. In 1908, the Governor appointed him Adjutant General where he reformed the Kentucky National Guard. 3 CHARLES KERR, ED., WILLIAM ELSEY CONNELLEY & E.M. COULTER, HISTORY OF KENTUCKY 352 (1922) (hereinafter KENTUCKY).

-70- expensive.”46 Id. at 3821 (Remarks of Mr. Askew). “[T]his money saving is a fair

and legitimate argument[,]” he said. Id. But his purpose in speaking lay in doing

something about the poor quality of representation and the only way, he believed,

was by decreasing the number of representatives.

“[T]hink of the men we send to Congress [whose districts are far

larger than that of state representatives],” he said, “and then of those who too

frequently fill this hall. . . . Something must be done.” Id. Askew was passing on

the sentiment and passion of a colleague back home. Calling him “[o]ne of the

most distinguished men of my acquaintance,” Askew was referring:

to the Hon. Wm. C. Owens[47]—[who] said to me, after my election to this body:

“ I do not care what you do; every reform you attempt will turn to ashes in your hands unless you do something to reform the Legislative Department. You must raise the standard, even if you are compelled somewhat to reduce numbers. It is the only suggestion I care to make, being the only matter that has given me great concern.”

Id. at 3821 (emphasis added) (Remarks of Mr. Askew, quoting Owens). It was

Owens who spoke the words LRC v. Brown erringly attributes to Askew.

46 The convention had yet to adopt the 60-day limit on legislative sessions. 47 William C. Owens (1849-1925) was not a convention delegate. He served in the Kentucky House, 1877-87, and the United States House of Representatives, 1895-97. Biographical Directory of the U.S. Congress, William C. Owens: https://bioguide.congress.gov/search/bio/O000161.

-71- Owens told Askew that, if it can, the Convention must contrive a

means by which to attract better qualified candidates to run for the legislature.

LRC v. Brown attributes a different, and inaccurate, meaning to the quote.

LRC v. Brown more than insinuates that state representatives were not

so much unqualified or incompetent as they were corrupt politicians “dominated by

a few, powerful special interests who wielded that power for their own benefit.”

664 S.W.2d at 912. Notably, the Anderson County delegate, Thomas H. Hanks,

levied the very same charge against Askew and received a swift rebuke.

Hanks accused Askew of telling the Convention that “Mr. Owens had

said the Legislatures were corrupt, and when asked by the delegate from Boone—”

III DEBATES at 3827 (Remarks of Mr. Hanks, delegate from Anderson). Askew

refused to let Hanks finish, breaking decorum and directing his response to Hanks

personally and not the Chair, saying, “You make a mistake when you put those

words in my mouth.” Id. (Remarks of Mr. Askew). Because the Court in LRC v.

Brown did not read Askew’s comments in context, they made the same mistake

Hanks made, putting false words in Askew’s mouth and perpetuating the story that

the 1890 Constitutional Convention was held to end legislative corruption.

Not surprisingly then, our Supreme Court “has on many occasions

recognized the need to curtail special legislation as the primary reason for the 1891

Constitution.” Zuckerman v. Bevin, 565 S.W.3d 580, 589 (Ky. 2018) (citations

-72- omitted). But my research convinces me that has never been the whole truth. I

offer two examples in which, with the opportunity to put restrictions on the plenary

authority of the General Assembly, the delegates declined to do so.

In the area of spending authority, the General Assembly’s power was

not lessened. After adoption of the new Constitution, the Kentucky Auditor

challenged the General Assembly’s funding for the World’s Columbian Exposition

to the tune of $100,000 as unconstitutional. Norman v. Ky. Bd. of Mgrs. of World’s

Columbian Exposition, 20 S.W. 901, 905 (Ky. 1892) (“Section 230 of our new

constitution, however, says: ‘No money shall be drawn from the state treasury

except in pursuance of appropriations made by law[.]’”). The Court rejected the

challenge, noting “[i]t was done in 1876 for the Centennial Exposition at

Philadelphia, and later for the one at New Orleans.” Id. at 902. These expositions

were “well known to the framers of our present constitution, adopted in 1891; and,

had it been intended to forbid the exercise of the power by the legislature for such

purposes, it would no doubt have been done, in unmistakable terms.” Id.

The same is so in the area of education. Although some believed

“[t]he cause of public education had suffered at the hands of some of the previous

Legislatures[,]” Agric. & Mech. Coll. v. Hager, 87 S.W. 1125, 1127 (Ky. 1905),

“[n]o one dreamed when a new Constitution came to be framed, in 1891, that the

commonwealth had tired in her efforts to furnish the best system her resources

-73- could provide for the education of the youth of the state, or intended to take a step

backward.” Id. When a taxpayer challenged the constitutionality of a 1906 law to

establish a system of normal schools, the Court rejected it saying nothing in § 184,

dealing with school taxes and common school funding, “or any other part of the

Constitution militates against the power of the Legislature to [establish this system

of education] as may be thought proper.” Marsee v. Hager, 101 S.W. 882, 884

(Ky. 1907). No one will contend, said the Court, “that the Legislature lacks the

power of making any appropriation it sees fit . . . . [T]he Legislature was left free

to continue, and, indeed, they were in terms continued by the Constitution itself,

till such time as it might be ‘changed by law.’” Id.

I am convinced it is a myth that the 1890 Constitutional Convention

was called primarily to restrain the General Assembly. That myth impacted our

constitutional jurisprudence and jurists should purge the idea from their thinking.

However, we need not entirely refute that orthodoxy here. The focus

of this appeal is the appointment power of the Executive Department vis-à-vis that

of the Legislative Department. Given the 1850 shearing of that power from the

Governor, it is far more important to determine whether one of the purposes of the

1890 Convention, and more importantly one of its accomplishments, was to restore

that power. For the purpose of this dissent, I can demonstrate, definitively I

believe, that it was not called to restore the Governor’s powers of appointment.

-74- 5. 1890 constitution does not restore Governor’s appointment powers

The Convention was not called to restore the Governor’s powers to

appoint or remove government officers, or to fill vacancies. More importantly, that

was not a Convention outcome. “In other words,” said one delegate, “we have

refused to invest the Governor with the appointment of all inferior officers

throughout the State. . . . [P]recisely as provided in the present Constitution [of

1850], which uses the terms, ‘inferior officers,’ . . . it is left to the Legislature to

prescribe the manner in which they shall be appointed . . . .” II DEBATES (1890)

1811 (Remarks of Mr. Washington48).

What is clear from all we know, including scholars’ and jurists’ best

guesses as to why the 1890 Convention was convened, is that there is no evidence

whatsoever to support the claim it was called to restore the appointive and related

powers of the Governor, and it is more certain that the office of Governor emerged

weaker from the 1890 Convention.

Thirty-five years after adoption of the current Constitution, our former

Court of Appeals neatly summarized what “is known from the history of our state”

about the Governor’s powers generally. Votteler v. Fields, 23 S.W.2d 588, 590

(Ky. 1926). The Court said, “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

48 George Washington, Jr. (1843-1905), attorney and 1890 delegate from Campbell County.

-75- officials of the state. . . . By the instrument then adopted,” said the Court, “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” and what has been restored was restored

only by legislative grace. Id. at 590 (emphasis added) (addressing appointments

and removals at Pharmacy Board).

It is a fact, however, that one man made a valiant effort to restore the

Governor’s appointment powers. For all his influence, he did not move the needle.

The 1890 Constitutional Convention had a formidable advocate for

restoring to the Governor the broader powers that office once enjoyed, especially

the appointment powers Appellees now claim. That advocate was the delegate

from Hart County, Simon Bolivar Buckner. Besides being seated as a delegate to

the Convention, he was concurrently serving as Governor.

Governor Buckner began his quixotic campaign by offering

resolutions to restore the pre-1850 Constitution gubernatorial appointment powers.

I DEBATES (1890) 205–06. Those resolutions, intended for consideration by the

Committee on the Executive Department, proposed a slightly watered-down

version of the Governor’s appointment and related powers found in the 1792 and

1799 constitutions that were removed in 1850. Compare I DEBATES (1890) 206

-76- (Remarks of Mr. Buckner) with CONST. OF KY. of 1799, art. III, § 9.49 The

Committee rejected Buckner’s proposals, and so did the Convention delegates.

Instead, the committee recommended, and the Convention adopted,

nearly verbatim, the language of article III, section 25 of the 1850 Constitution,

and that became § 93. Compare CONST. OF KY. of 1850, art. III, § 25 with CONST.

OF KY. of 1891, § 93.50 Both the 1850 and 1891 versions grant to the legislature

plenary power to determine how inferior state officers are appointed or elected.

49 Buckner’s proposal would have empowered the Governor as follows:

The Governor shall nominate, and, by and with the consent of two-thirds of the Senate, shall appoint a Secretary of State, an Attorney General, a Treasurer, and a Superintendent of Public Instruction at pleasure, and such other officers of the Commonwealth as he is or may be authorized by the Constitution or by the law to appoint.

I DEBATES (1890) 206. The relevant section of the 1799 Constitution, in pertinent part, says:

He shall nominate, and by and with the advice and consent of the Senate, appoint all officers, whose offices are established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for ....

CONST. OF KY. of 1799, art. III, § 9. 50 That portion of CONST. OF KY. of 1850, art. III, § 25 says: “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.” That portion of CONST. OF KY. of 1891, § 93 says: “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.” In 1992, this portion of Section 93 was amended, increasing the scope of the General Assembly’s appointment powers, as follows: “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.” 1992 Ky. Acts ch. 168, § 12 (S.B. 226).

-77- And, as if maintaining the 1850 restrictions on the Governor’s powers

of appointment was not enough, the 1890 Convention delegates took away the

Governor’s token authority to appoint the Secretary of State that remained under

the 1850 Constitution, article III, section 21, by making the office of Secretary of

State an elected office on par with other offices of the State at Large. CONST. OF

KY. of 1891, § 91; I DEBATES (1890) 1056–57.

And there is still more indication that the 1890 delegates had no

intention of reinstating the Governor’s appointment, removal, and broader

vacancy-filling powers. When the Convention’s Revisory Committee51 examined

a new section proposed to be added to the Constitution and discovered it might

unintentionally grant appointment powers to the Governor, the Convention

removed it.52 The Revisory Committee “found that section 76[53] was in direct

conflict with the latter clause of section 96”[54]—that is, it conflicted with article

51 “The convention met in September, 1890, and having in April, 1891, completed a draft of a constitution, . . . submitted it to a popular vote, and then adjourned until September . . . . [Upon reconvening,] the delegates, moved no doubt by patriotic impulse, made numerous changes in the instrument . . . and, as thus amended, it was promulgated by the convention on September 28, 1891, as the constitution of the state.” Miller v. Johnson, 18 S.W. 522, 522 (Ky. 1892). 52 The date this section was removed was September 11, 1891, a month or so after the popular vote to approve the original version of the Constitution. 53 Each Committee sequentially numbered the proposed sections of the article it was tasked with revising. This “section 76” does not correlate to the current constitution’s § 76 and, as noted, did not survive the Convention. What became § 76 began as “section 79.” IV DEBATES (1890) 5578. 54 See footnote 53, supra. The Committee’s section 96, after removing lower numbered sections, was renumbered as § 93.

-78- III, section 25 of the 1850 Constitution and, therefore, with what “section 96”

would become—our current Constitution’s § 93. IV DEBATES (1890) 5728

(Remarks of Mr. Bronston).55 As initially proposed and as Mr. Bronston

explained, those sections then read as follows:

Section 76. 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.

The latter clause of section 96 reads:

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.

Id. The committee that prepared this section 76 explained the thinking behind it;

they “thought [it] important to allow the Governor to appoint the Librarian. It was

not understood at that time that the appointing power should be extended to any

other office save that.” Id. See also Kraus v. Ky. State Senate, 872 S.W.2d 433,

438 (Ky. 1993), as modified on reh’g (Mar. 24, 1994) (“Section 76 of the

Kentucky Constitution was changed[56] in 1890 [sic, 1891] . . . to eliminate any

55 Charles Jacob Bronston, Jr (1882-1961), delegate and respected lawyer from Lexington, served as Commonwealth’s Attorney (1879-1895), and in the Kentucky Senate (1896-1900). 56 The Kraus Court obviously did not understand that the section numbered “76” at that time was not the section we know by that number in the current Kentucky Constitution. When the delegates were debating “section 76,” the provision we now know as § 76 was actually numbered “§ 79.” See, footnote 53, supra. The original § 76 was simply deleted entirely and not “changed.”

-79- possible conflict with what was to become Section 93 of the same constitution.”).

The Committee was concerned the courts would construe the original section 76

too broadly, and that:

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 . . . 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 (1890) 5728 (Remarks of Mr. Bronston) (emphasis added). The

Convention delegates agreed. They struck the section entirely. Id.

But Governor Buckner had even more fruitless ideas to restore power

to the office of the Governor. By means of another resolution, he asked the

Committee on the Executive Department to consider recommending a power

Appellees believe exists today57—that “[t]he Governor shall have power to remove

any officer whom he may appoint, in case of incompetency, neglect of duty, or

malfeasance in office; and he may declare his office vacant, and fill the same . . . .”

57 As addressed, infra, Appellees cite North Carolina court opinions deciding the constitutionality of North Carolina statutes under the North Carolina Constitution as supportive of their argument that the Governor must have power to remove inferior officers he appoints as a means of fulfilling his constitutional duty under § 81 to ensure the laws are faithfully executed. (Appellees’ brief, pp. 21–24, 28–29 (quoting North Carolina v. Berger, 781 S.E.2d 248, 257 (N.C. 2016) (“[C]ontrol that the Governor has . . . depends on his ability to appoint the commissioners . . . and to remove them from office.” (emphasis added); Record (R.) at 999 (“The Court is persuaded by the analysis in State v. Berger . . . .”)). As discussed below, it does not persuade me.

-80- I DEBATES (1890) 205 (Remarks of Mr. Buckner). The Committee took the

Governor’s proposal under advisement.

Two months later during the Convention, presumably having

considered Governor Buckner’s resolution, the Committee on the Executive

Department gave its report and Buckner’s proposal was not included. I DEBATES

(1890) 1458 (report of Committee on the Executive Department). Instead, the

committee moved for a routine re-adoption of the general power that had appeared

in the 1792, 1799, and 1850 Constitutions, and what would become the current §

81, and which has forever stated: “He shall take care to see that the laws are

faithfully executed.” Id. Because the committee report served as a motion not

requiring a second under parliamentary procedures, it was ready for an immediate

voice vote. But before the President could call that vote, Buckner piped up.

“I have an amendment to offer[,]” he said and read his motion to

amend the proposed § 81. Id. If passed, it would grant the Governor “the power to

suspend from office any Executive or ministerial officer who may fail and refuse to

discharge the duties of his office, and to fill the vacancy thus occasioned.” Id.

Buckner wanted to graft onto the Governor’s general power under § 81 a specific

power the Appellees insist is already implied—the express power to remove

officers the Governor himself comes to believe are not performing their

constitutional or statutory duties. His motion was not well received.

-81- The Governor’s fellow delegates skewered the idea. One said it is “an

infringement upon the Republican Government[.]” Id. at 1459 (Remarks of Mr.

Bronston). Another said, “It gives almost regal power to the Governor.” Id.

(Remarks of Mr. Pettit).

Morris Sachs, a delegate from Louisville, and others, sought to

explain to Buckner how this section, destined to become § 81, is designed to work:

I think the trouble in this matter arises on account of a difference of opinion as to what are the duties of the Governor. . . . [Mr. Buckner] seemed to think that the Governor occupied a position like a private citizen would with regard to his general business affairs. He illustrated it by the management of a farm . . . [but] that would be placing in the hands of the Chief Executive a kingly power . . . . If the Governor were, like a king, responsible for the management of the affairs of the kingdom he necessarily and logically should have that power.

Id. at 1460 (Remarks of Mr. Sachs). Of course, Governor Buckner’s comparison

with managing a farm is hopelessly flawed. Unlike the operator of a farm, the

Governor cannot personally weigh the merits of a worker’s efforts, decide whether

he contributes to the endeavor, and terminate him if, in his sole opinion, he does

not. The delegates thought Buckner misperceived this as depriving him of all

power under § 81. Appellees share this misconception. The 1890 delegates’

comments enlightened Buckner and, perhaps, will do the same for Appellees.

“[T]he 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

-82- Legislature.” Id. See, e.g., Page, 47 Ky. at 657 (“by the writ of mandamus it [the

judiciary] may coerce a ministerial officer, though of the executive department, to

the performance of a legal duty”). Mr. Sachs continued:

I say 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 the 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. See Gordon v. Morrow, 218 S.W. 258, 262 (Ky. 1920) (Writs will “issue to

compel the public officer . . . to do something that the law makes it his duty to do,

or to restrain him from doing something that the law directs he shall not do.”).

The delegate from Lexington, Charles Jacob Bronston, former

Commonwealth’s Attorney and future State Senator, responded too:

I differ from [Governor Buckner] that there is any great lack of power in his provision of the present [1850] Constitution [i.e., the verbatim antecedent of the current § 81] wherein it says, ‘he shall see that the laws are faithfully executed.’ He can do that by calling attention of those tribunals having power to remove the respective officials to the fact that they have failed to discharge their duties. By calling the attention of the Legislature to those officials that it has the power to remove; and by calling the attention of the Courts to the officials they have the power to remove; but certainly I never wish to see the time come in the history of the affairs in the State of Kentucky when one man will have the power with one stroke of his pen to remove every subordinate, executive and ministerial

-83- officer in the Commonwealth and supply his place by appointment.

Id. at 1459.

Another delegate said, “I cannot believe [Governor Buckner] has

carefully considered the extent and scope of his amendment. . . . This certainly is

regal power, and it may be safe in the hands of [Governor Buckner], but human

nature is the same in all ages of the world, and I, for one, enter my most earnest

and solemn protest against lodging this power [of removal from office] in the

hands of any single human being.” Id. at 1461 (Remarks of Mr. Beckham).58

To eliminate any of the Governor’s remaining doubt, a “gentleman of

the Committee” that proposed re-adopting verbatim this same general power found

in all three prior constitutions stood and expressed his solidarity with Buckner’s

opponents:

It is not only in the statutes, in the Constitutions of 1792, and 1799, and 1849 [sic], but I think it is a proper provision . . . and I am prepared to say that I agree with the gentleman who preceded me [Mr. Beckham], that the law, with the power [the Governor] has, can be enforced, and should be, without any extension.

Id. at 1461 (Remarks of Mr. Burnam).59

58 John Crepps Wickliffe Beckham (1869-1940), delegate from Shelby, served in the Kentucky House of Representatives, 1894-1898, as Kentucky’s Governor, 1900-1907, and in the United States Senate, 1915-1921. 59 Curtis F. Burnam (1820-1909), lawyer and delegate from Madison County, was Yale’s valedictorian in 1840. He canvassed Kentucky in 1849 to urge the gradual abolition of slavery.

-84- In the face of universal opposition, Governor Buckner withdrew his

motion to amend. Id. at 1462 (Remarks of Mr. Buckner). “[H]e failed to get the

governor’s appointing power extended to minor state officials . . . [and] accepted

the completed document [1891 Constitution], but he was not enthusiastic about it.”

Lowell H. Harrison, ed., KENTUCKY’S GOVERNORS 121 (2004). Buckner left the

Convention knowing his successor would enjoy fewer powers of appointment than

even he had when the Convention began in September 1890.

The 1890 Constitutional Convention delegates’ outright refusal to

grant the Governor even the slightest explicit powers of appointment, removal, or

vacancy-filling, and the People’s adoption of the current Constitution withholding

such powers, should give every Kentucky jurist pause before deciding such powers

can be found implicitly. Jurists should ask themselves this: If, as the delegates

concluded, granting this power expressly is clothing the Governor with regal

power, does any part of the Constitution empower the judiciary to clothe the

Governor with the same vestments by finding they already exist implicitly? My

question is rhetorical for, obviously, the judiciary does not have such power.

Pro-union, he was often in the General Assembly, including during the Civil War and received public support for U. S. Senator. He was a founder of the Kentucky State Historical Society in the 1870s and a member of the Knights Templar. President Grant appointed him Assistant and Acting Secretary of the Treasury in 1890. He was twice elected to the Kentucky Senate without opposition, in his 80s, and died in office. Bennet H. Young, ed., KENTUCKY ELOQUENCE, PAST AND PRESENT 427 (1907); REGISTER OF KENTUCKY STATE HISTORICAL SOCIETY 141 (1909).

-85- 6. Appellees cite immemorial, never-controversial constitutional provisions

Except for Governor Buckner’s surprising kerfuffle over § 81, there

was no debate over any section of the Constitution relied upon by Appellees. 60

None of those sections was controversial. All were understood simply as

descriptors of a tripartite republican government. Each section upon which

Appellees rely—§§ 27, 28, 69, 76, and 81—can be traced verbatim, or nearly so, to

Kentucky’s founding. See Table 1, supra.

On the other hand, Appellants cite the General Assembly’s express

grant of enumerated powers created in 1850 and reinstated in 1891 for the very

purpose of restricting the Governor’s general power that less informed jurists

resurrect by purporting to discover them, implied by the Founders, in the

separation-of-powers provisions Appellees cite.

Notably, the appointment powers granted to the General Assembly in

article III, section 25 of the 1850 Constitution and in § 93 use sweeping language

authorizing the General Assembly to determine whether every inferior state officer

is appointed or elected, and in what manner. Why is that notable? Because, as

discussed in the next section, the delegates to the 1849 Convention had a template

60 What became § 81 was reported by the Committee on the Executive Department as “section fourteen.” I DEBATES (1890) 1458. It is likely no debate was expected about this section of the proposed new constitution because it was adopted, and readopted, and readopted again without debate and without change in the three previous constitutional conventions. CONST. OF KY. of 1792, art. II, § 14; CONST. OF KY. of 1799, art. III, § 15; CONST. OF KY. of 1750, art. III, § 14. At least the delegates’ reactions indicate they were surprised by Buckner’s motion.

-86- to follow if they chose to—the U.S. Constitution. DEBATES (1849) 1124 (Remarks

of Mr. Gaither61) (“select committee appointed . . . to enquire into the powers of

. . . Federal Government”). Had the delegates followed that model, Appellees’

argument would be tenable. As will be discussed, because they chose not to follow

the federal model, the Appellants’ argument that the General Assembly is not

restricted by the Governor’s implied general powers is all the more persuasive.

7. Delegates at both conventions decline to exclude the General Assembly itself from electing or appointing inferior state officers

The Federal Constitution was a ready resource available to the 1849

Convention delegates. Some of its provisions aligned with Kentucky’s

constitutions, for example, as in sections identifying the Governor as the chief

executive magistrate and charging him with a general power to see that laws are

faithfully executed. Compare U.S. CONST. art. II, § 1, cl. 1 and id. art. II, § 3 with

CONST. OF KY. of 1850 art. III, §§ 1, 14 (and antecedent provisions of the 1792 and

1799 Constitutions). If one accepts Appellees’ argument, Congress’s power to

appoint or elect inferior officers would be prevented by the President’s powers

61 Nathan Gaither (1788-1862), a physician and delegate from Adair County, served in the Kentucky House of Representatives (1815-1818; 1855-1857), and United States House of Representatives (1829-1833). Biographical Directory of the United States Congress, Nathan Gaither: https://bioguide.congress.gov/search/bio/G000010. Gaither’s committee “enquire[d] into the powers of the State and Federal Government[.]” He expressly addressed the Appointment Power Clause, U.S. CONST. art. II, § 2, cl. 2, stating, “The Legislative powers are—That Congress . . . [m]ay invest the appointment of inferior officers in the President alone, in the courts of law, or the heads of Departments.” DEBATES (1849) 1124.

-87- implied in those sections of the Federal Constitution. But if they were, there would

be no reason to create the separate Appointing Powers Clause and word it as the

Constitution does.62 The fact that the Founders concluded a separate provision was

necessary to restrict the legislature’s appointment powers is pretty persuasive

authority that general provisions such as those Appellees rely upon are not enough.

The Federal Constitution’s Appointing Power Clause granted such

power generally to the Congress, but specifically limited the entities in which

Congress may vest appointment power. U.S. CONST. art. II, § 2, cl. 2. Section 93

and its antecedent do not. Look again at the language of article III, section 25, and

compare it to the language that was not adopted, starting with the federal model the

1890 delegates did not copy.

The Appointing Power Clause says: “Congress may by Law vest the

Appointment of such inferior Officers, as they think proper, in the President alone,

in the Courts of Law, or in the Heads of Departments.” Id. Pause here a moment

to consider a question: if, as must follow from Appellees’ argument, the

Constitution’s sections identifying the President as the chief executive magistrate

and imposing upon him the duty to see the laws are carried out are enough to

confer a chief executive magistrate’s power of appointment, why would the

62 Of course, the 1792 and 1799 constitutions did not copy the Federal Constitution’s Appointing Power Clause, the delegates choosing instead to expressly grant to the Governor the power to appoint every office.

-88- Appointing Power Clause need to name the President specifically? It reveals

Appellees’ argument as unsound. But setting aside the Founders’ conclusion that

the President must be named in the Appointing Power Clause to make that office

eligible as a repository for appointment powers, there is another thing to learn from

the Appointing Power Clause.

By using the language they did, the Framers consciously excluded

Congress from the list of entities that could be vested with the power of

appointment. It would have been a simple matter for Kentucky’s delegates to

emulate the federal model, but the 1849 delegates chose not to. Instead, they

granted the General Assembly the broadest of powers to fill inferior state offices

without prohibiting the General Assembly itself from making appointments.63

The Appointing Power Clause implicates, of course, a cardinal rule of

construction—that the mention of one thing implies exclusion of another. “[T]he

63 As discussed, infra, the former Court of Appeals usurped the authority of the People by, in effect, adding new language to the Kentucky Constitution, § 93, restricting the General Assembly’s power to make appointments itself. Craig v. O’Rear, 251 S.W. 828, 831 (Ky. 1923) (“[T]he Legislature is given full power to determine by whom the appointment of all inferior officers and agents may be made (section 93, Constitution), subject to the qualification, laid down in the Sibert Case, that it may not itself make appointments to office.” (referencing Sibert v. Garrett, 246 S.W. 455, 461 (Ky. 1922) (no express grant of power in Kentucky Constitution authorizing General Assembly to itself appoint or elect inferior officers)). “[T]he people are the only power that can limit their own sovereignty, by restrictive provisions in the organic law; and it is not for the judiciary to furnish these . . . . [T]he Legislature is the representative and embodiment of the sovereignty of the people . . . .” Police Comm’rs v. City of Louisville, 66 Ky. 597, 605 (1868).

-89- Framers were well aware of the expressio unius[64] argument that would result from

their wording . . . .” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 793 n.9, 115

S. Ct. 1842, 1850 n.9, 131 L. Ed. 2d 881 (1995) (addressing the Qualifications

Clauses). That is, quite obviously, why they made this list in the Appointing

Powers Clause.

More to the point of this review, the delegates to the 1849 Convention

almost certainly were aware of this maxim. However, what uncertainty exists

there does not exist at all regarding the 1890 delegates. We know for certain they

were aware. II DEBATES (1890) 2183 (Remarks of Mr. Knott) (referencing “the

familiar rule of construction expressio uniis [sic] exclusio alterius”); III DEBATES

(1890) 4438 (Remarks of Mr. Washington) (“[U]pon every principle of

construction . . . by this enumeration, other exceptions are excluded: expression

unius est expressio alterius. You are acquainted with that principle, I suppose.”).

Knowing the 1890 delegates understood that legal principle, and that

they repeated the 1849 decision not to copy the federal model, how can we doubt

that the 1890 delegates consciously chose not to exclude the General Assembly

from those entities in which it could vest the appointment power? All it would

64 “‘It is a familiar and general rule of statutory construction that the mention of one thing implies the exclusion of another. . . .’ This basic tenet of statutory construction is usually referred to by the Latin phrase expressio unius est exclusio alterius.” Fox v. Grayson, 317 S.W.3d 1, 8 (Ky. 2010) (footnote omitted).

-90- have taken was to make a list that did not include the General Assembly. Instead,

the delegates and ultimately the People repeated the broad language from the 1850

Constitution and fashioned § 93 without the limitations that Appellees claim, and

that the circuit court found, do exist. To agree with Appellees and the circuit court,

I would have to embrace a new and absurd rule of constitutional construction—that

general powers granted one branch can implicitly restrict otherwise unrestricted

express grants of power to another branch. And another new rule that turns the old

rule on its head—that the judiciary can add language to the Constitution.

The People of this Commonwealth could read the language of § 93

and comprehend its broad nature. They did and overwhelmingly adopted § 93 as

part of the new constitution by a vote of 213,432 to 74,017. DECADES 267

(footnote omitted). By adopting our current Constitution, the People did not

prohibit the General Assembly itself from electing individuals to inferior offices.

Furthermore, no express authority is needed. That is how our highest court

interpreted both article III, section 25 of the 1850 Constitution and § 93.

In Speed v. Crawford, the Court referenced this power of the General

Assembly to elect individuals to boards when it said, “Wherever the selection of an

officer is referred to the governor or other functionary it is called an appointment,

and wherever such selection is referred to the people, or to an organized body (as

-91- the legislature, for instance), it is called an election.” 60 Ky. 207, 211 (1860)

(emphasis original; double emphasis added)).

The Court said the same in 1920. In Sewell v. Bennett, the Court said

whenever a board or commission such as the Kentucky Fair Board “is purely a

legislative creation[,]” and where it “provid[es] for the appointment of members of

the board[,] the Legislature had the undoubted power to make these appointments

itself or give them to the Governor, or indeed any other person or body that it

might designate . . . . This power is conferred on the Legislature by section 93 of

the Constitution . . . .” 220 S.W. 517, 519 (Ky. 1920).

There is an example of the General Assembly’s exercise of

constitutional authority to elect an officer, as a board member, right under our

noses. For decades, part of the pre-HB 518 law governing the Kentucky Fair

Board, KRS65 247.090, designated the Governor as a member. But, if we accept

Appellees’ argument, there is no constitutional authority for the General Assembly

to name the Governor to any board. If that is so, imagine how many statutes

creating and populating boards and commissions would be affected. See, e.g., Kerr

v. City of Louisville, 271 Ky. 335, 111 S.W.2d 1046, 1050 (1937) (“The Governor

is a member of the State Highway Commission, the State Board of Charities and

65 Kentucky Revised Statutes.

-92- Corrections, the Sinking Fund Commission, the Printing Commission, and many

other boards and commissions.”).

Because the General Assembly lacks constitutional authority to define

any duty of the Governor,66 what is the source of the General Assembly’s authority

to name the Governor to that board if not § 93? We know the answer, of course.

Section 93 is that source because, as explained: (1) § 93 does not, within itself,

restrict the General Assembly to the exercise of legislative power only, (2) the

General Assembly’s exercise of appointment power (whether deemed inherently

executive in nature or not, to be discussed at length, infra) is not expressly

prohibited, and (3) the General Assembly’s exercise of that power is not implicitly

restricted by an express constitutional grant of such authority to any other branch.

The power Appellees claim and that the circuit court found to be

unconstitutional is the very power that put the Governor himself on the Fair Board.

66 Section 93 authorizes the General Assembly to “prescribe[] by law” the “duties and responsibilities of these officers” who are identified in the section as the Treasurer, Auditor of Public Accounts, Secretary of State, Commissioner of Agriculture, Labor and Statistics, and Attorney General. The Governor is not included in the list. But see Rouse, 28 S.W.2d at 749 (It is “legal and proper for the Legislature to annex such nonconferred duties and powers by the Constitution to an officer created by it as has been done with reference to the Governor . . .” and other constitutional officers such as the “Attorney General, Auditor, Secretary of State, Treasurer, and Superintendent of Public Instruction . . . .” (emphasis added)). Clearly, the Court misspoke to the extent Rouse seems to suggest the Legislature could annex duties to the office of Governor.

-93- 8. Section 76 is no basis to challenge HB 518

The circuit court below and Appellees cite § 76 to claim a general

power to fill vacancies which, the latter asserts, supersedes in some way the

specific appointment powers of § 93. As with all the constitutional sections

Appellees cite, § 76 is quite faithful to the wording of its antecedents. Compare

CONST. OF KY. of 1850, art. III, § 9 with CONST. OF KY. of 1891, § 76.67 But the

Appellees’ claim of power under § 76 was long ago held to be only general and not

self-executing. Again, our highest court explained.

Section 76’s direct antecedent, “section 9 of article 3 [of the 1850

Constitution] confers upon the Governor, who is the head of the executive

department, the general power to fill vacancies” and, being a general power, it

“[wa]s not self-executing, [and] was not conferred upon the Governor, to be

exercised by him . . . without further constitutional or statutory authority.” In re

67 As with each of the Kentucky Constitution’s provisions relied upon by Appellees, the source of § 76 is a corresponding provision of the 1850 constitution. Compare § 76 with its source and you will see the only change is one that seemingly incorporates the 1881 analysis of In re Opinion of Judges of Court of Appeals, 79 Ky. 621 (1881), addressed infra:

“He shall have power to fill vacancies that may occur, by granting commissions, which shall expire when such vacancies shall have been filled according to the provisions of this constitution.” CONST. OF KY. of 1850, art. III, § 9.

“He shall have the power, except as otherwise provided in this Constitution, to fill vacancies by granting commissions, which shall expire when such vacancies shall have been filled according to the provisions of this Constitution.” CONST. OF KY. of 1891, § 76. The phrase “except as otherwise provided in this Constitution” was added by the Revisory Committee in September 1891, as discussed below, after the original draft of the Constitutional was adopted by the People in August.

-94- Opinion of Judges of Court of Appeals, 79 Ky. 621, 623 (1881) (emphasis added).

“Section 26, article 8,” of the 1850 Constitution was the Governor’s necessary and

“further constitutional . . . authority . . . for filling vacancies . . . in the office of

Attorney General, Auditor of Public Accounts, Treasurer, Register of the Land

Office, President of the Board of Internal Improvement, or Superintendent of

Public Instruction . . . in the recess of the Senate[.]”68 Id. at 624–25. That also

defined the constitutional limits of the Governor’s vacancy-filling power. As our

highest court said, article VIII, section 26 would have been “wholly unnecessary to

confer upon him the power to fill the vacancies in those offices” if the general

power described in article III, section 9 [now § 76] was enough in itself. Id. at 625.

But, because the constitutional “power to fill vacancies” was only general, when

there was no further express constitutional authority, the Governor’s power to fill a

vacancy was entirely dependent upon “further . . . statutory authority.” Id. at 623

(emphasis added). Under such circumstances, only the General Assembly could

and, occasionally, did provide it. See, e.g., Long v. Comm’rs of Central Ky.

Lunatic Asylum, 6 S.W. 335, 335 (Ky. 1888) (“Under the general law regulating

68 “When a vacancy shall happen in the office of Attorney General, Auditor of Public Accounts, Treasurer, Register of the Land Office, President of the Board of Internal Improvement, or Superintendent of Public Instruction, the Governor, in the recess of the Senate, shall have power to fill the vacancy by granting commissions which shall expire at the end of the next session, and shall fill the vacancy for the balance of the time by and with the advice and consent of the Senate.” CONST. OF KY. of 1850, art. VIII, § 26. This language can now be found in § 152 of our current Constitution and is cited as the source of § 152.

-95- the conduct and management of these asylums, nine commissioners are to be

appointed by the governor . . . .”).

Our highest court said that, because the General Assembly regularly

provided such necessary further authority in the form of a statute, the whole of

government “considered it necessary to the exercise of the power by the Governor

to expressly invest him with authority to fill [vacancies] . . . , and the executive

department has uniformly complied with this provision of the law, thereby

showing its recognition of the authority of the legislature to enact it.” In re

Opinion of Judges, 79 Ky. at 627.69

In re Opinion of Judges refutes Appellees’ argument that § 76 alone,

or even in conjunction with the other sections they cite, grants “the Governor the

power to fill vacancies[,]” and it refutes their argument that HB 518, in violation of

that constitutional provision, “tak[es] away [his] ability to fill the vacancies” on the

69 The Court thoughtfully considered its interpretation of these constitutional provisions, even addressing the maxim of contemporanea expositio:

While “contemporary construction can never abrogate the text, never fritter away its obvious sense, never narrow down its true limitations, and never enlarge its natural boundaries,” the practical exposition of section 9, article 3, of the constitution, which the legislature has given by the many provisions for filling vacancies temporarily, sustains the construction of that section we have indicated with a plausibility and strength not easily destroyed.

In re Opinion of Judges, 79 Ky. at 627 (without attribution to the source of the quotation). See also Fox, 317 S.W.3d at 17 (“contemporaneous legislative explanation or clarification of a constitutional provision should ordinarily be given deference by a reviewing court”).

-96- Fair Board. (Appellees’ brief, p. 20). Just as article III, section 9 of the 1850

Constitution was general only, requiring “further constitutional or statutory

authority” such as article VIII, section 26 of the 1850 Constitution or some statute,

the current Governor’s general power to fill vacancies under § 76 also requires

further constitutional or statutory authority to do so.

Although Appellees do not cite § 152, that is the express further

constitutional authority of the Governor’s vacancy-filling power generally

identified in § 76. But § 152 also defines the limits of the Governor’s

constitutional authority for filling vacancies. That is the import of In re Opinion of

Judges to this review we are now undertaking. Consequently, by its plain

language, § 152 does not empower the Governor to fill vacancies on the Fair

Board.70

To fill vacancies on the Fair Board, the Governor must find that

further power in legislation, and right there it is in HB 518 § 2(3). Before that, it

was in KRS 247.090(1)(e)-(l) (2017). If the General Assembly had failed entirely

in HB 518 to provide for the filling of vacancies, the Governor’s necessary further

authority would have been a different statute. KRS 63.190 (“In every case where

there is no other provision of law for the filling of a vacancy in any office, the

70 In pertinent part, § 152 says: “Vacancies in all offices for the State at large, or for districts larger than a county, shall be filled by appointment of the Governor; all other appointments shall be made as may be prescribed by law.”

-97- vacancy shall be filled by appointment by the Governor.”). Of course, that statute

and its predecessor which dates at least to 1903, KS71 3758,72 would be totally

unnecessary if § 76 was sufficient in itself to authorize the Governor to fill such

vacancies. But there is still more in our constitutional jurisprudence to counter

Appellees’ argument.

In addition to § 152’s limitations on the Governor’s constitutional

vacancy-filling powers, our high court held § 76 is specifically limited by § 93, not

the other way around as Appellees argue. Section 76 includes the phrase “except

as otherwise provided in this Constitution”; therefore, it “should be read in

connection with section 93[.]” Rouse, 28 S.W.2d at 751. The authority granted the

General Assembly in § 93 that “‘Inferior state officers, not specifically provided

71 Kentucky Statutes. 72 KS 3758 reiterated much of what is already in § 152 and, upon revision in 1942 as a revised statute was shortened to its current form. The unrevised statute reads as follows:

“The following officers shall have commissions issued to them by the Governor, that is to say: Secretary of state, register of the land office, auditor of public accounts, treasurer, commissioner of agriculture, labor and statistics, superintendent of public instruction, judges of the court of appeals, clerk of the court of appeals, judges of the circuit courts, county judges, police judges, railroad commissioners, commonwealth’s attorney, justices of the peace, notaries public, and all officers of the militia of rank and grade higher than and including the rank and grade of captain. Should a vacancy occur in any of said offices, by reason of the death, resignation or removal of the officer, or from any other cause, or should a like vacancy occur in any other office where there is no provision of law for filling same, such vacancy shall be filled by the appointment of the Governor, subject to the provisions of the Constitution applicable thereto.”

Traynor v. Beckham, 74 S.W. 1105, 1106 (Ky. 1903), on reh’g, 76 S.W. 844 (Ky. 1903) (quoting KS 3758).

-98- for in this Constitution, may be appointed or elected, in such a manner as may be

prescribed by law’ . . . falls within the inserted exception contained in section

76[.]” Id. “[T]he two sections read together . . . 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 . . . .” Id.

Since 1850, and continuing through the current Constitution, authority

previously enjoyed by the Governor to fill virtually all government vacancies, like

the appointment power, is today largely under the General Assembly’s authority.

See CONST. OF KY. of 1850, art. II, § 31 (vacancies in Legislative Department); art.

IV, § 4 (“whenever a vacancy shall occur in [Court of Appeals] from any cause,

the General Assembly shall have the power to reduce the number of judges and

districts”); art. IV, § 35 (vacancies in local conservators of the peace); art. VI, § 7

(“Vacancies in offices under this article [Executive and Ministerial Officers for

Counties and Districts] shall be filled . . . as the General Assembly may provide.”).

Today, these provisions, dispersed in the 1850 Constitution, are largely coalesced

in § 152. See also CONST. OF KY. of 1891, §§ 85, 160, 222.

Nothing about § 76 persuades me that HB 518 is unconstitutional

given the General Assembly’s broad authority in § 93 to establish and reconstitute

the Fair Board and determine how its members are appointed or elected.

-99- 9. Sections 69 and 81 are not sweeping grants of broad power

Without § 93’s tempering of the Governor’s authority, “[t]he supreme

executive power of the Commonwealth” in combination with the duty to “take care

that the laws be faithfully executed[,]” might very well clothe the Governor in the

vestments of a king, just as Governor Buckner’s opponents chided. And that is

very nearly what Appellees are arguing—that the power granted in the general

sections of the article on the Executive Department, § 69 and § 81, supersedes the

very restrictions on the Governor’s power adopted in § 93. Appellees are simply

wrong, and so was the circuit court.

A rule of constitutional construction is “that if there be conflict

[between constitutional provisions] it is the duty of the court to uphold that portion

containing express language relating to the subject, rather than to one dealing with

matters in general terms.” Ward v. Harding, 860 S.W.2d 280, 281–82 (Ky. 1993)

(modification original) (quoting Commonwealth ex rel. Attorney General v.

Howard, 180 S.W.2d 415, 418 (Ky. 1944)). Appellees’ argument turns that rule on

its head. They claim, in essence, that even an express grant of constitutional

authority such as § 93 should be disallowed if it offends “the spirit supposed to

pervade the Constitution, or is against the nature and spirit of the government, or is

contrary to the general principles of liberty, or the genius of a free people.”

Louisville/Jefferson Cnty. Metro Gov’t Waste Mgmt. Dist. v. Jefferson Cnty.

-100- League of Cities, Inc., 626 S.W.3d 623, 628 (Ky. 2021) (quoting Craig v. O’Rear,

251 S.W. 828, 830 (Ky. 1923)). But in these two cited opinions—Jefferson

County League of Cities and Craig—rendered a hundred years apart, our highest

court rejected that argument. 251 S.W. at 830 (“courts are not at liberty to declare

a statute invalid” for such reasons).

Additionally, to accept Appellees’ argument would be to make the last

sentence of § 93 irrelevant. It would, in effect, be a judicial repeal of a part of the

Constitution; the judiciary is powerless to make such a ruling. Russman v. Luckett,

391 S.W.2d 694, 697 (Ky. 1965) (“no authority . . . recognize[s] an implied repeal

of a constitutional provision”).

Appellees succeeded in convincing the circuit court that when the

General Assembly enacted HB 518, it unconstitutionally diminished the

Governor’s power to remove officers and fill vacancies because that is how the

Governor “oversee[s] faithful execution of the law.” (R. 1000). That is

unquestionably contrary to the intention of the 1890 Constitutional Convention

delegates as discussed, supra, Sections 5, 8, and 9. The circuit court’s decision

reveals an illogic, contrary to that intent, that the source of the Governor’s power

to remove officers is § 81. It is not.

It is perfectly clear from the history of our state and an examination of our Statutes, that the people, as a fundamental proposition, did not mean to vest their Governor with the right to remove from office those

-101- appointed thereto in the manner prescribed by the people acting through their Legislature, unless and until such power was expressly or by the clearest implication given to the Governor.

Votteler, 23 S.W.2d at 590. Our Supreme Court reiterated this ruling in McClure

v. Augustus when it said, “[T]he executive power of removal is . . . subordinate to

[the] will of the General Assembly.” 85 S.W.3d 584, 586 (Ky. 2002) (citing

McChesney v. Sampson, 23 S.W.2d 584, 586 (Ky. 1930) (Governor could not

remove his own appointee without statutory authority)).

Furthermore, if the Governor suffered a diminution of his

constitutional power of appointment, removal, and vacancy-filling when HB 518

was passed, then, to use the circuit court’s phrase, “the Governor suffered the same

diminution to his power” when § 93 was adopted 135 years ago, and when its

antecedent was adopted forty years before that. (R. 1001). In other words, the

Governor’s power to remove persons from office does not emanate from any of the

constitutional provisions Appellees cite. I am certain the act of the People in

adopting § 93 was not unconstitutional. Votteler, 23 S.W.2d at 590 (“A people are

entitled to that form of government they wish[.]”). What the People and § 93

authorized, the General Assembly and HB 518 simply made law.

Section 93, as well as its antecedent, was purposefully adopted by the

Commonwealth’s citizenry and plays a significant role in tempering the

Governor’s power. Those citizens granted the General Assembly, and the General

-102- Assembly alone, the express and specific authority, without restriction, to

“prescribe[] by law” the “manner” in which these “Inferior State officers” of the

Fair Board are “appointed or elected[.]” CONST. OF KY. of 1891, § 93. When the

General Assembly enacted HB 518, it merely exercised that power.

Consider these sections, § 69 and § 81, separately. Section § 69

“reflects the fact that under our Constitution there are other constitutional officers

in whom executive powers may be vested by the legislative body. Sec[tion] 69

makes it clear that these officers are inferior to the Governor and that no other

executive office can be created which will not also be inferior to that of the

Governor.” Brown v. Barkley, 628 S.W.2d 616, 622 n.12 (Ky. 1982) (hereinafter

Barkley). Section 69 simply “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 v. Commonwealth, 163

S.W.3d 852, 869 (Ky. 2005). It is not more subtle or complex than that.

Jurists should not be deceived into believing § 69 grants the Governor

an omnipotence simply because the phrase “supreme executive power” is used to

identify the head of the executive branch of government. It merely identifies “the

office of governor [which] was ‘unknown to common law[.]’” Kentucky Emps.

Ret. Sys. v. Seven Cntys. Servs., Inc., 580 S.W.3d 530, 539 (Ky. 2019) (quoting

Royster v. Brock, 79 S.W.2d 707, 709 (Ky. 1935)). As our Supreme Court made

-103- clear, in proper context the phrase loses its authoritative mystique—“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.’” Id. (quoting Royster, 79 S.W.2d at 709)

(emphasis added in Seven Cntys.). See also Cameron v. Beshear, 628 S.W.3d 61,

73–74 (Ky. 2021) (hereinafter Cameron) (emphasis added) (citation omitted)

(“Practically speaking, except for those conferred upon him specifically by the

Constitution, [the Governor’s] powers, like those of the executive officers created

by Const. Sec. 91, are only what the General Assembly chooses to give him.”).

As our Supreme Court also said, “The same Constitutional powers

and duties described in §§ 69 and 81 are granted to the President of the United

States by Article II, Sections 1 and 3 of the United States Constitution.”

Fletcher, 163 S.W.3d at 869. Under those federal constitutional provisions, and

consistent with In re Opinion of Judges, 79 Ky. at 623, “[t]he executive power was

given in general terms strengthened by specific terms where emphasis was

regarded as appropriate, and was limited by direct expressions where limitation

was needed . . . .” Myers v. United States, 272 U.S. 52, 118, 47 S. Ct. 21, 26, 71 L.

Ed. 160 (1926).

The same is true of the Kentucky Constitution. The executive power

was given in general terms in § 69, strengthened by specific terms where emphasis

-104- was regarded as appropriate in § 152, and was limited by direct expression where

limitation was needed in § 93.

As for § 81, our Supreme Court compared it to the President’s power

under Article II, Section 3 of the United States Constitution, saying “[t]he duty of

the President to see that the laws be executed is a duty that does not go beyond the

laws or require him to achieve more than Congress sees fit to leave within his

power.” Fletcher, 163 S.W.3d at 869 (quoting Myers, 272 U.S. at 295, 47 S. Ct. at

85 (Holmes, J., dissenting)). Our congress, the Kentucky General Assembly, has

often chosen to “leave within his [the Governor’s] power” the authority to appoint

inferior state officers and, since amendment of § 93, members to boards and

commissions as well. See, e.g., KRS 63.190.

In fact, by the free and constitutional exercise of the legislative

prerogative, the General Assembly has always vested in the Governor, in addition

to his constitutional powers in § 152, the power to make certain appointments.

Sewell, 220 S.W. at 519. A comparison of one of those early statutes with its

modern counterpart shows the General Assembly has afforded the Governor more

appointment and removal authority than enjoyed at the time of the adoption of the

current Constitution.73 By that same largesse, the General Assembly left in HB

73 Compare KS 3750 (1920) with KRS 63.080. The former statute said:

-105- 518 the Governor’s power to appoint six (6) members of the Fair Board, reduced

from twelve (12) of the original eighteen (18) total members. Appellees never

challenged the General Assembly’s authority under § 93 to grant the Governor

appointment power of those twelve (12) members only. Equally ironic is that

Appellees never argued §§ 27, 28, 69, 76, and/or 81 prohibited the General

Assembly itself from electing the Governor to the Board or that those sections

meant legislation vesting in him the power to appoint members was unnecessary.

When asked at oral argument whether § 93 authorized the General

Assembly to deprive the Governor of all appointments to the Fair Board, the

Solicitor General, with some little hesitation, responded in the affirmative. His

hesitation, no doubt, was because whether to do so is a political question for which

“No person appointed to an office by the Governor, by and with the advice and consent of the Senate, shall be removed therefrom by the Governor, during the term for which he was appointed, unless for failure to discharge, or neglect in the performance of the duties of his office. And any person removed for such cause shall be notified, in writing, of the cause of his removal; and the facts connected therewith shall be laid before the Senate by the Governor at its next session. Unless otherwise provided, all persons appointed to an office by the Governor, whether to fill a vacancy, or as an original appointment, shall hold office, subject to the advice and consent of the Senate, which body shall take appropriate action upon such appointments at its first session held thereafter.”

Sewell, 220 S.W. at 519 (quoting KS 3750 which was “a part of the chapter in the Kentucky Statutes entitled ‘Offices and Officers,’ enacted by the Legislature in 1893, although a number of the sections now found in the chapter had been the law for many years prior to 1893”). The successor and current statute, KRS 63.080, grants far more power to the Governor. A sense of the Governor’s greater authority allowed in this somewhat lengthy statute can be had by reference to the opening line which states that, except as otherwise provided in the statute, “any person appointed by the Governor, either with or without the advice and consent of the Senate, may be removed from office by the Governor for any cause the Governor deems sufficient . . . .” KRS 63.080(1).

-106- the members of the General Assembly would answer to their constituents. Purnell

v. Mann, 48 S.W. 407, 410 (Ky. 1898), overruled on other grounds by Pratt 1

(“The people alone, through the legislature, must determine as to justice and policy

of the statute.”). In fact, if the People believe the members of the General

Assembly who favored HB 518 abused the power granted the General Assembly in

§ 93, then the People have a political solution at the ballot box.

What is certain is that §§ 69, 76, and 81 do not grant the Governor

authority to exercise political power on behalf of the People that the People

retained for themselves, or to take away from the Legislative Department what the

People expressly granted it, any more than any part of the Constitution empowers

the judiciary to discover that authority is implicitly residing in the Constitution to

empower the Governor. Hager v. Robinson, 157 S.W. 1138, 1142 (Ky. 1913)

(“The courts are not the guardians of the rights of the people . . . [and] cannot

assume their rights.”).

The circuit court revealed its sense, perhaps unwittingly, that it was

tempted to do just that, to assume the People’s rights, when it chose not to

“determin[e] the number of appointments the Governor requires to maintain

constitutionality” and suggesting “[t]he General Assembly can enact new

legislation rebalancing the respective appointment authority . . . .” (R. 1002, n.12).

This instinct should have set off an alarm that if the Constitution is not specific

-107- enough to tell us how many or what percentage of the appointments the Governor

is authorized to make, the prohibition on the General Assembly the circuit court

found exists, in fact, does not. Otherwise, how could it be that the Governor is not

required to make every appointment if, as discussed below, all appointments are

executive in nature and exercisable only by the Executive Department? The

answer is that this, too, is a fallacy.

We can deny it if our ends are other than to follow the Constitution,

but the fact is, when it comes to the manner in which state officials of the nature

involved here are appointed or elected, the power is wholly within the Legislative

Department. Our highest court said long ago:

It would be difficult, perhaps impossible, to define the extent of the legislative power of the state, unless by saying that so far as it is not restricted by the higher law of the state and federal constitutions, it may do every thing which can be effected by means of a law. It is the great supervising, controlling, creative and active power in the state, subject to the fundamental restrictions just referred to. Whatever legislative power the whole commonwealth has, is, by the constitution, vested in the legislative department, which, representing the popular majorities in the several local divisions of the state, and under no other restraint but such as is imposed by the fundamental law, by its own wisdom and its own responsibilities, may regulate the conduct and command the resources of all, for the safety, convenience and happiness of all, to be promoted in such manner as its own discretion may determine.

-108- Slack v. Maysville & Lexington R.R. Co., 52 Ky. 1, 22 (1852) (quoted in George,

47 S.W. at 780, overruled by Pratt 1) (quoted, in part, in Commonwealth ex rel.

Beshear v. Bevin, 575 S.W.3d 673, 682 (Ky. 2019)).

Significant to this review, the Court also said when the General

Assembly enacts a law, “[i]t may be carried into operation by the executive alone

. . . [or] by the judiciary, or by the co-operation of the judiciary and the executive.”

Id. “But the legislature is not restricted to these agencies. It may select or appoint

others, as is often done[.]” Slack, 52 Ky. at 22–23 (emphasis added).

Could it be clearer that the citizens of Kentucky in 1850 wanted broad

appointment power with the General Assembly and not in the hands of one person?

Could it be clearer they did not want to restore that power to the Governor in

1891? As one delegate summarized it, “[T]he time has passed when the people of

Kentucky believe that all wisdom and learning is with the Governor. The people

are opposed to the one-man power, however learned or pure that man may be.” I

DEBATES (1890) 1423 (Remarks of Mr. Hanks). It is § 93 that safeguards the

People from abuse by a chief executive magistrate, and it is the diffusion of power

among the many elected representatives sent to the General Assembly by their

constituents that safeguards the public from legislative abuse of § 93.

-109- PART TWO

10. Misguided reliance on North Carolina constitutional interpretation

This Kentucky constitutional history mattered little to the circuit

court. After rotely noting the rules for deciding constitutional questions and

touching upon the “veering” opinions LRC v. Brown mentioned, the circuit court

strangely turned to North Carolina law to say it was “persuaded by the analysis in

State [ex rel. McCrory] v. Berger,[74] 781 S.E.2d 248 (N.C. 2016) that the General

Assembly’s conferring to the Commissioner of Agriculture authority to appoint a

majority [of Fair Board members] . . . places the Governor’s power under a Section

91 executive officer and effectively prevents him from overseeing faithful

execution of the law.” (R. 999–1000.) Relying on North Carolina jurisprudence

was more than unnecessary. It was a bad choice.

“Within wide constitutional bounds, States are free to structure

themselves as they wish.” Berger v. N.C. State Conf. of the NAACP, 597 U.S. 179,

183, 142 S. Ct. 2191, 2197, 213 L. Ed. 2d 517 (2022) (hereinafter Berger v.

NAACP); Votteler, 23 S.W.2d at 590 (“A people are entitled to that form of

government they wish[.]”). If between those wide bounds is a spectrum, one

74 This was the first in a series of recent North Carolina Supreme Court separation-of-powers cases. Cooper v. Berger, 809 S.E.2d 98 (N.C. 2018) (Cooper I); Cooper v. Berger, 822 S.E.2d 286 (N.C. 2018) (Cooper II); Cooper v. Berger, 852 S.E.2d 46 (N.C. 2020) (Cooper III); N.C. State Conf. of NAACP v. Moore, 876 S.E.2d 513 (N.C. 2022). The subsequent North Carolina opinions caption this one State ex rel. McCrory v. Berger and reference it in short form as McCrory. See, e.g., Cooper III, 852 S.E.2d at 54, 56. This dissent follows that convention.

-110- would have to place Kentucky and North Carolina at opposite ends when it comes

to their respective governor’s appointment powers. Owing to the unique

characteristics of North Carolina constitutional law, that state’s constitutional

jurisprudence is totally inapposite. The circuit court should have heeded the North

Carolina Supreme Court’s warning that “each state constitution has its own unique

history of development, both in terms of the constitutional text itself and of the

judiciary’s interpretation of that text.” Cooper v. Berger, 822 S.E.2d 286, 297

(2018) (Cooper II).

Consider this fact first. At Kentucky’s 1890 Convention, the

Committee on the Executive Department obtained and considered “the compilation

of the Constitutions of the several States published by the authority of Congress,

and embracing the Constitution of each State to and including the year 1876 . . . .”

1 DEBATES (1890) 39. The Committee and all the delegates thus had, as a guide,

the 1868 Constitution of North Carolina—that state’s last constitution before

adopting its current one in 1971. But that 1868 constitution proved to be no help to

the 1890 Kentucky delegates. Following it would have taken us backward.

Article III, section 10 of the 1868 North Carolina Constitution

allowed that state’s Governor the same appointment powers found in Kentucky’s

1799 Constitution, which the citizens of Kentucky expressly rejected in 1850.

-111- Compare CONST. OF N.C. of 1868, art. III, § 1075 with CONST. OF KY. of 1799, art.

III, § 9.76 In other words, Kentucky’s 1850 Constitution eliminated its Governor’s

constitutional appointment powers nearly twenty years before North Carolina’s

1868 Constitution took those same powers from its legislature and granted them to

its Governor. McCrory, 781 S.E.2d at 253 (“Constitution of 1868 removed all of

the provisions that had authorized the General Assembly to appoint executive and

judicial officers.”).

In fact, the very North Carolina opinion that persuaded the circuit

court in this case pointed out that stark difference when it said, “[T]he Constitution

of 1868 had ‘superadded’ the phrase ‘and no such officer shall be appointed or

75 North Carolina’s version of this gubernatorial power of appointment reads:

Sec. 10. The governor shall nominate and, by and with the advice and consent of a majority of the senators-elect, appoint all officers whose offices are established by this constitution, or which shall be created by law, and whose appointments are not otherwise provided for, and no such officer shall be appointed or elected by the general assembly.

CONST. OF N.C. of 1868, art. III, § 10. 76 In pertinent part, Kentucky’s Governor was granted the following power of appointment as shown, in pertinent part, below:

§ 9. He shall nominate, and by and with the advice and consent of the Senate, appoint all officers, whose offices are established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for . . . .

CONST. OF KY. of 1799, art. III, § 9.

-112- elected by the General Assembly’ to ensure that the General Assembly could not

appoint constitutional or statutory officers . . . .” Id. at 253 (emphasis added).

Other state constitutions vest their governors with this appointment power and,

either expressly or by necessary implication in granting the power to another

branch, withhold that power from the state’s legislature. See, e.g., W. VA. CONST.

art. VII, § 8 (“The governor shall nominate, and . . . appoint all officers whose

offices are established by this constitution, or shall be created by law, and whose

appointment or election is not otherwise provided for; and no such officer shall be

appointed or elected by the Legislature.”); ILL. CONST. art. V, § 9 (a) (“The

Governor shall nominate and . . . shall appoint all officers whose election or

appointment is not otherwise provided for. . . . The General Assembly shall have

no power to elect or appoint officers of the Executive Branch.”). Both Governor

Buckner in 1890 and Appellees today likely would prefer such language had been

adopted in Kentucky’s current Constitution, but the People of Kentucky chose the

opposite path in 1850 and clearly had no intention of reversing course in 1891.

As the circuit court notes, the two states’ respective current

constitutions have some basic provisions in common. That is true. It would be

amazing if they did not, given that both follow the same tripartite republican

model. But within the wide constitutional bounds Justice Gorsuch notes in Berger

v. NAACP, the two constitutions have meaningful differences. Look closer at what

-113- the North Carolina Constitution does not include that is included in ours—North

Carolina has nothing resembling Kentucky’s § 93.

When North Carolina adopted its 1971 constitution, it reaffirmed the

1868 Constitution’s redistribution of appointment power from the Legislative

Department to the Executive Department—just as in 1891 the People of Kentucky

reaffirmed the 1850 shift of that very power in the opposite direction. Knowing

this diametric difference gives me confidence in my position that the circuit court’s

reliance on North Carolina constitutional jurisprudence is fully misplaced.

It does not matter whether we compare North Carolina’s 1868

constitution, as the 1890 Kentucky Convention delegates knew it, or that state’s

current 1971 Constitution. Neither version has any provision close in nature to

Kentucky’s § 93 that deprives the Kentucky Governor of the very power the North

Carolina Governor expressly controls under that state’s “Appointments Clause.”

CONST. OF N.C., art III, § 5(8) (“Appointments. The Governor shall nominate and

by and with the advice and consent of a majority of the Senators appoint all

officers whose appointments are not otherwise provided for” in the North Carolina

Constitution.). The North Carolina Appointments Clause is a constitutional grant

of power from the People of North Carolina to their Governor, a grant that does not

exist in Kentucky’s Constitution. That Appointments Clause is a more powerful

weapon in North Carolina’s Governor’s disputes with its legislature than the

-114- somewhat similar statutory power the Kentucky General Assembly grants our

Governor in KRS 63.190—a legislative grant constitutionally and expressly

authorized by § 93. Once North Carolinians granted that power in 1868, “the

General Assembly . . . has never regained the full scope of appointment power that

it had in 1776.” McCrory, 781 S.E.2d at 256. That is why North Carolina

opinions are irrelevant. But there is more.

McCrory turns on the North Carolina Governor’s power to remove

officers, not just his power to appoint. By North Carolina law, the Governor’s

constitutional power to appoint includes the power to remove. James v. Hunt, 258

S.E.2d 481, 487 (N.C. App. 1979) (quoting State ex rel. Caldwell v. Wilson, 28

S.E. 554, 562 (N.C. 1897)) (“[T]he power of suspension rests in the hands of the

governor, which, when exercised in an orderly manner, is not reviewable by the

courts (whether the action of the governor was justified by the facts, which he

alone could find, is not for us to say).”)); id. at 488 (“we find no case nor

indication by any court that the courts should bind the Governor to any statutory

procedure unless the Constitution of the state or the statutory provisions giving him

the power of removal specify a specific procedure therefor”). Kentucky does not

follow that rule or that model.

In Kentucky, “an appointment to office once made is incapable of

revocation or cancellation by the appointing executive in the absence of a statutory

-115- or constitutional power of removal.” McChesney v. Sampson, 23 S.W.2d 584, 587

(Ky. 1930). See also Holliday v. Fields, 275 S.W. 642, 648 (Ky. 1925) (Governor

could not remove sheriff); Page v. Hardin, 47 Ky. at 677 (“Secretary [of State who

was appointed per the Constitution by the Governor] is not subject to removal from

office at the will of the Governor, or on his judgment[.]”). Several cases before

our highest court challenged “the decision of the governor that a vacancy in office

existed, . . . and in each one it was decided no vacancy existed, his act [filling the

vacancy] was invalid, and the person appointed by him was not entitled to the

office.” Toney v. Harris, 3 S.W. 614, 617 (Ky. 1887).

Because Kentucky’s Governor does not have removal authority absent

statutory authorization, Appellees’ argument is untenable. Appellees rely on the

North Carolina cases that persuaded the circuit court, saying “the governor must

always have enough control over [board appointees] to perform his constitutional

duty” to see the laws are faithfully executed and that “[t]he degree of control. . .

depends on his ability to remove them from office.” (Appellees’ brief, p. 22

(quoting McCrory, 781 S.E.2d at 257)). In other words, Appellees argue the

Governor must have the power to appoint in order to perform his § 81

responsibilities which can only be met by removing appointees he believes are not

“faithfully execut[ing]” the law. Again, as discussed, supra, Sections 5, 8, and 9,

that was never intended by the 1890 Convention delegates.

-116- Because Kentucky requires specific statutory authority for the

Governor to exercise the general power of § 81 to remove officers, the rationale of

McCrory utterly fails precisely because it depends on a power the Kentucky

Governor lacks—express constitutional authority to remove someone from office.

Such power was given to the North Carolina Governor in that state’s constitution;

it has not been a constitutional power of the Kentucky Governor since 1850.

In summary, the constitutional and jurisprudential differences between

North Carolina and Kentucky are so dramatic that McCrory and the line of North

Carolina cases that follow should not persuade anyone that they enlighten us to

answer the issues before us.

That leaves the circuit court’s reliance on LRC v. Brown, an opinion

built on a shifting-sand foundation of opinions that should bring a certain degree of

embarrassment to the Kentucky judiciary.

PART THREE

LRC v. Brown has been called “seminal.” Beshear v. Acree, 615

S.W.3d 780, 809 n.39 (Ky. 2020); Kraus, 872 S.W.2d at 435. That’s hard to

dispute given that the word defines something “highly original and influencing the

development of future events[.]” Seminal, THE RANDOM HOUSE DICTIONARY OF

THE AMERICAN LANGUAGE 1741 (2nd ed. 1987). It makes my questioning of

Brown seem all the more against the grain, especially considering that seven years

-117- after its rendition, when the Supreme Court could have corrected its mistake, it

stubbornly reaffirmed it instead. “We do not now retreat from our decision in LRC

v. Brown one iota[,]” it said in Kentucky Association of Realtors, Inc. v.

Musselman, 817 S.W.2d 213, 216 (Ky. 1991) (emphasis in original). But, to

paraphrase the Bard, the Court doth protest too much, methinks. WILLIAM

SHAKESPEARE, HAMLET, act 3, sc. 2.

One cannot help but wonder, with identical separation-of-powers

provisions dating back to 1792 and the language of § 93 dating to 1850, why well

more than a century passed before a “seminal” opinion appeared.

Brown’s seminality is the deviant course it takes, away from the

constitutional principles embedded in our jurisprudence starting nearly two

centuries ago and accurately reiterated in Brown v. Barkley, 628 S.W.2d 616 (Ky.

1982) (hereinafter Barkley). That course slyly “veers” from that grounded

jurisprudence, just as the flawed decisions upon which it relies veered from it.

Brown is a detour paved with aberrant opinions leading those who follow it beyond

its delegation-of-powers holding to blind-alley arguments and dead-end decisions.

11. Brown does more than needed to declare the legislation unconstitutional

The first signpost on the detour is in Brown’s opening paragraphs.

The Supreme Court said the case is about “the delegation of powers by the General

Assembly to the LRC” despite being inaccurately “trumpeted abroad as a test of

-118- the relative constitutional powers of the Governor . . . [and] the General Assembly”

and even “a power struggle” between them. Brown, 664 S.W.2d at 909.

In the end, Brown has become appropriately known simply as a

delegation-of-powers case. As the Supreme Court said recently in an opinion that

seems, in some ways, to marginalize its other aspects:

The precise issue in Brown was occasioned by the then statutory provisions that purported to give the General Assembly authority, through the L.R.C., to review and void executive branch administrative regulations. We held this review process was unconstitutional either as a legislative veto or as an impermissible extension of the legislative session [thus violating CONST. OF KY. of 1891, § 42].

Cameron, 628 S.W.3d at 74. Like many other opinions, Cameron tells us,

precisely, that this is what Brown has justly come to be known for. Diemer v.

Commonwealth, Transp. Cabinet, Dep’t of Highways, 786 S.W.2d 861, 865 (Ky.

1990) (“[A] long line of cases . . . upheld the principle that the General Assembly

cannot delegate any portion of the legislative function to another authority.”).

But did the Court that decided Brown actually treat it as a delegation-

of-powers case? That answer is no. If only the Court had stuck to its guns, Brown

could have achieved the same outcome without, in effect, refuting the superior

nature of the General Assembly’s appointment powers so plainly granted by § 93.

The Court had the perfect exit from its detour and chose not to take it.

-119- KRS 446.090 allows the General Assembly to expressly provide that

if any part of a statutory scheme is held to be unconstitutional, it shall be deemed

so in its entirety. Such a provision was included in the statutory scheme Brown

reviewed. Brown, 664 S.W.2d at 919 (“The non-severability clause that appears in

KRS 13.092(3) has the effect of throwing the baby out with the bath water.”).

Brown determined that portions of the statutory scheme enacted as KRS 13.080—

13.125 violated “KY. CONST. Sec. 42, in that such a provision brings new life to the

General Assembly (through the LRC) following adjournment[,]” and also “ha[s]

the effect of creating a legislative veto of the administrative policy of the executive

branch of government.” Id. at 918. The non-severability statute, KRS 13.092,

expressed the General Assembly’s intent that, indeed, if any part of that statutory

scheme was unconstitutional, the General Assembly wanted the Court to “toss the

baby out with the bath water.” Id. at 919.

But the Court ignored the General Assembly’s intent in this regard. It

decided not to restrict itself to what it claimed the case was about—“the delegation

of powers by the General Assembly to the LRC.” Brown, 664 S.W.2d at 209. It

could have said that, although only portions of KRS 13.080, et seq., are clearly

unconstitutional, the non-severability clause requires it all be disallowed. Instead,

the Court resolved to do what it indicated it would not do—decide “a power

struggle” between the other branches of government. There can be no other reason

-120- for ignoring the non-severability clause but to address and affirm the circuit court’s

ruling that “[t]he right of the [President Pro Tem of the Senate, and Speaker of the

House of Representatives] to make certain appointments to boards and

commissions was . . . invalid for the reason that the power of appointment was an

executive function.” Id. at 910. The simplism of this holding was too enticing and

too easy for the Brown jurists to go the extra mile and examine the issue more

closely, as I examine it in Section 12, infra. It has obviously and similarly enticed

Appellees in the instant appeal. This review provides the chance to give it the

fuller explanation it enjoyed beginning in 1830 and deserves today.

12. Appointments not limited to Executive Department

Before considering Kentucky’s past jurisprudence on this issue, we

should be pondering (sarcastically so) the imminence of a constitutional challenge

to KRS 13A.020 because, if Brown is good law, we should expect that challenge

soon. That statute creates (perhaps I should say re-creates) the “Administrative

Regulation Review Subcommittee” of the Legislative Research Commission and

purports to do exactly what Brown says is unconstitutional. The current statute

says: “The subcommittee shall be composed of eight (8) members appointed as

follows” including “three (3) members of the Senate appointed by the President

[Pro Tem of the Senate]” and “three (3) members of the House of Representatives

-121- appointed by the Speaker of the House of Representatives . . . .” KRS 13A.020(1).

I do not believe such a challenge is forthcoming, nor should it be.77

As to the holding that the power of appointment is inherently

executive, Brown is at least incomplete, if not entirely wrong. Brown and the

opinions upon which it relies tell only the deviant part of our jurisprudence.

Brown held that statutes authorizing the General Assembly or its

designees “to make appointments, fly in the face of the principle which declares

such appointments cannot be made by the General Assembly itself. Such statutes

constitute an incursion . . . into the separation of powers doctrine.” Brown, 664

S.W.2d at 923. Contrary to its fuss that the case was not really a power struggle

between the Governor and the General Assembly, the Court surely inserted itself to

referee that fight. That would not be so bad, if only the Court had not gotten the

law so wrong.

Brown’s conclusion that the separation-of-powers doctrine prevents

any but the Executive Department from making appointments because

77 The response to this sarcastic suggestion might well be that Brown implies the General Assembly can make appointments to legislative committees. Brown, 664 S.W.2d at 922. But if so, how could the Court in that very case also hold that statutes authorizing “the Speaker and the President Pro Tem . . . to make appointments [to the LRC subcommittee], fly in the face of the principle that declares such appointments cannot be made by the General Assembly itself. Such statutes constitute an incursion by the General Assembly, or in this case, its designees, into the separation of powers doctrine.”? Id. at 923 (emphasis added). If this language, obviously reflecting Sibert though Sibert is not cited here, was intended to reference appointments other than to the LRC subcommittee, then this part of the opinion is just whining to be declared dicta.

-122- appointments are inherently executive was not an idea embraced by the Founders

of our federal model for constitutions, nor was that the Founders’ experiences.

“Many incidents prior to the adoption of the Federal Constitution indicate that

historically the appointing function was not necessarily included in the executive

office.” Note, Power of Appointment to Public Office Under the Federal

Constitution, 42 HARV. L. REV. 426, 427 (1929) [hereinafter Power of

Appointment]. At the Constitutional Convention in the summer of 1787, there was

“violent disagreement . . . concerning the proper body to exercise the power of

appointment[.]” Id. at 428. Conflicting drafts of the new constitution by delegates

who “were experienced in the practical administration of government” “dealt

chiefly with the practical advantages of having either the President or Congress

appoint to office . . . .” Id. (citing 1 MAX FARRAND, RECORDS OF THE FEDERAL

CONVENTION 67 et seq., 119–25 [hereinafter FARRAND, RECORDS]; 2 id. 23, 37, 41,

51, 71, 80, 97, 99, 110, 118 (1911)). In the end, the exclusive power of

appointment in the President was rejected in favor of a proviso that “Congress may

. . . vest the power of appointment” signifying an intention “to give the legislature

power to vest the appointment of officers in some other body, or to permit

Congress, in its discretion, to exercise that function itself . . . .” Id. (citing 1

FARRAND, RECORDS 282, 292; 3 id. 617, 625 (Hamilton Plan)).

-123- The idea that executive appointments must be made by executive

officers remains an uncommon view in the federal system, as Boston University

federal courts scholar Professor Yackle tells us:

[I]t has been insisted that article II’s injunction that the “executive Power shall be vested in a President” squarely prohibits the appointment of federal officers (conceived as an intrinsically executive function) by anyone other than the president or his linear agents. Yet neither the overarching separation-of-powers idea nor the language of article II mandates any such formalism. Modern appraisals of constitutional structure and language fully contemplate that other branches may play a significant, even determinative, role in the selection of even executive officers.

Larry W. Yackle, Choosing Judges the Democratic Way, 69 B.U.L. REV. 273,

319–20 (1989) (footnotes omitted).

Such insistence as described in Professor Yackle’s article is in no way

different in kind or substance from what Appellees insist here. It is quite the same

argument as rejected in Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L.

Ed. 2d 569 (1988). In Morrison, the Supreme Court of the United States addressed

the constitutionality of the independent counsel provisions of the Ethics in

Government Act of 1978 (Act) that allowed for the appointment of a special

counsel independent of executive control. Id. at 661, 108 S. Ct. at 2603. Those

challenging the law made the same arguments as made in Brown and as repeated in

the case now under review. The Court dispatched those arguments, saying, “the

-124- power to appoint inferior officers . . . is not in itself an ‘executive’ function in the

constitutional sense . . . .” Id. at 695, 108 S. Ct. at 2621. The Court also said “we

do not think that the Act impermissibly undermines the powers of the Executive

Branch, . . . or disrupts the proper balance between the coordinate branches by

preventing the Executive Branch from accomplishing its constitutionally assigned

functions . . . .” Id. (brackets, internal quotation marks, and citations omitted).

Federal jurisprudence can be illuminating, especially when addressing

core principles of the American system of government such as the separation of

powers. But did the states align with federal thinking? More importantly, has

Kentucky jurisprudence ever aligned with it? The answer to the first question is

yes. See Marine Forests Soc’y v. California Coastal Commonwealth, 113 P.3d

1062, 1085–86 (Cal. 2005) (citing a majority of the states that follow the reasoning

of Morrison but counting Brown among “the minority of state cases that reach a

contrary conclusion”). The answer to the second question is that Kentucky did not

simply align with it, Kentucky pioneered the principle until the aberrant opinions

of Pratt 1 and Sibert bastardized it, and LRC v. Brown followed them. I do my

best to reveal the incredible flaws in these opinions in Sections 34–38 and Sections

50, 54, infra.

As for the states as a whole, “[t]hough the state constitutions in force

between 1776 and 1787 uniformly used the term ‘executive power,’ the power of

-125- appointment was largely vested in the legislatures.” Power of Appointment, 42

HARV. L. REV. 427. An analysis of the states’ high-court opinions conducted about

the time Kentucky rendered Sibert concluded: “The ordinary constitutional

distributive clause for the separation of powers [such as Kentucky’s §§ 27 and 28]

has been deemed insufficient to vest the power of appointment, as a per se

executive function, solely in the governor . . . .” Id. at 430 (emphasis added).

Notably, the analysis identified Pratt 1 as the only case out of step with this widely

held view. Id. at 430 n.33.

As for Kentucky, if we followed Brown’s lead and unwisely narrowed

our focus until we saw Pratt 1 and Sibert as the only jurisprudence on the issue of

the nature of the appointment power, we might believe Kentucky jurisprudence

simply chose to go its own, lone way. But Pratt 1, which is Sibert’s authority and

both of which are crucial to Brown, was far from the first case to address the issue.

Pratt 1 was not even, as Brown ignorantly calls it, the case on this issue most

“contemporaneously decided with the adoption of our present constitution[.]”

Brown, 664 S.W.2d at 912. That case was Commissioners of Sinking Fund v.

George, 47 S.W. 779 (Ky. 1898). I’ll come to that later. For now, let us return to

consider Kentucky’s influential jurisprudence regarding the nature of appointment

powers.

-126- Kentucky was among the first states, perhaps the very first, to address

the nature of the appointment powers. It did so in Taylor v. Commonwealth, 3 J.J.

Marsh. 401, 26 Ky. 401 (1830), a case often cited side-by-side with Marbury v.

Madison, 5 U.S. 137, 2 L. Ed. 60 (1803). See, e.g., Witherspoon v. Mississippi,

103 So. 134, 143 (Miss. 1925); Nebraska v. Moores, 76 N.W. 175, 190 (Neb.

1898), overruled by Redell v. Moores, 88 N.W. 243 (Neb. 1901); North Dakota ex

rel. Standish v. Boucher, 56 N.W. 142, 147 (N.D. 1893); Connecticut v. Barbour,

22 A. 686, 688 (Conn. 1885); Indiana v. Denny, 21 N.E. 274, 279 (Ind. 1889);

Hoke v. Field, 73 Ky. 144, 145 (1874).

In Taylor, the clerk of the Campbell County Court accepted a

commission as an army paymaster. The county court, supposing there to be a

vacancy, appointed another to succeed him. Taylor wanted to keep both jobs and

so appealed the county court decision to the Court of Appeals. Id. at 401. The

case presented a question of jurisdiction. If the county court’s appointment of

Taylor’s successor was a judicial act, the Court had jurisdiction. However, if the

appointment was merely an executive act, it did not. Id. (“The appellate

jurisdiction of this court is judicial. We can revise that only which is judicial.”).

Analysis began with the holding that “[t]he appointment of a [court]

clerk, is not, strictly speaking, a judicial act. Appointment to [any] office is

intrinsically ‘EXECUTIVE.’” Id. (emphasis in original). “[A]ppointment of a

-127- clerk, [is], as we have supposed it must be, the exercise of an executive function,

and is, therefore, as purely an executive act, as if it had been performed by the

governor.” Id. at 402. The Court offered several iterations of the same idea: “It is

the prerogative of appointing to office, and is of the same nature, whether it belong

to a court or to a governor.” Id. at 401. An appointment “is essentially executive,

whensoever, or by whomsoever it may be exercised. It is as much executive when

exercised by a court as by the governor.” Id. In the end, the Court ruled that it

lacked appellate jurisdiction because the Campbell County Court—part of the

judiciary—constitutionally exercised an executive power in making an

appointment. Id. at 402. The point made by repeating the holding in different

ways was that the power to appoint, though intrinsically executive in nature, is not

restricted to the Executive Department or deprived of the other two branches.

For the remainder of the century, under three constitutions including

the current one, our courts repeated the principle that just because the power of

appointment was, by its nature, executive does not mean such power cannot be

exercised by a department of government other than the Executive Department.

Bruce v. Fox, 31 Ky. 447, 449 (1833); Justices of Spencer Cnty. Court v. Harcourt,

43 Ky. 499, 500 (1844) (hereinafter Harcourt); Gorham v. Luckett, 45 Ky. 146,

159 (1845) (hereinafter Gorham) (emphasis added) (“although the power of

appointment would seem to be . . . executive or ministerial in its nature, it has been

-128- repeatedly held by this Court, that because the laws vest in certain individuals, (in

preference to others,) the rights of administration, or because the law designates

the person who is entitled to the grant of administration” the appointment is lawful

though not vested in the Executive Department); Speed v. Crawford, 3 Met. 207,

214, 60 Ky. 207, 214 (1860) (hereinafter Speed) (“construction [of Constitution]

which would deny to the legislature the right of clothing the judicial tribunals with

certain minor functions, that are in their nature strictly executive, would greatly

embarrass, if it did not defeat, to some extent, the practical workings of our

system”); Applegate v. Applegate, 61 Ky. 236, 237 (1863) (hereinafter Applegate);

George, 47 S.W. at 787; Purnell, 48 S.W. at 407.

But Taylor v. Commonwealth was not only precedent in Kentucky. It

had national prominence and was cited as persuasive in more than a dozen foreign

jurisdictions. When the Constitutional law expert of the era reported on the case,

this is what he said:

An appointment to office was said in Taylor v. Commonwealth . . . to be intrinsically an executive act. In a certain sense this is doubtless so, but it would not follow that the legislature could exercise no appointing power, or could confer none on others than the chief executive of the state. Where the constitution contains no negative words to limit the legislative authority in this regard, the legislature in enacting a law must decide for itself what are the suitable, convenient, or necessary agencies for its execution, and the authority of the executive must be limited to taking care that the law is executed by such agencies.

-129- CONSTITUTIONAL LIMITATIONS 114 n.3 (1874) (emphasis added).

Shortly after Kentucky’s 1890 Constitutional Convention, the North

Dakota Supreme Court addressed this issue in Boucher, supra, 56 N.W. 142.

Alerted to Taylor v. Commonwealth by its being referenced in another legal

treatise, MECHAM ON PUBLIC OFFICERS, the North Dakota court said, “The case

from Kentucky, which seems to be a leading case, and which asserts that the power

to appoint to office is inherently executive, still upheld an appointment made by a

court exercising judicial powers.” Id. at 147–48. Relevant sections of Mecham’s

treatise said this:

§ 103. Where the Power of Appointment lies. — The power of appointing public officers rests primarily with the people. By their constitutions, however, they delegate it to their representatives, and we find it usually vested in the chief executive of the nation, state or municipality by which the officer’s authority is created, but it is sometimes conferred upon legislatures . . . .

§ 104. Appointment to office is an executive Act. — So it is said that appointments to office, whether made by judicial, legislative or executive officers or bodies, are in their nature intrinsically executive acts. Though it by no means follows that the appointing power is inherent in the executive.

....

§ 108. Authority of Executive to appoint must be conferred by sovereign Power.— But, even though the act of appointing officers may be deemed executive in its nature, the power to appoint officers, excepting, perhaps,

-130- those who are to assist him in the discharge of his personal executive duties is not inherent in the chief executive, but must exist, if it exist at all, by virtue of the authority conferred on him by the sovereign power.

FLOYD R. MECHAM, A TREATISE ON THE LAW OF PUBLIC OFFICES AND OFFICERS

42–44 (1890).

Cooley and Mecham were not the only scholars to take special note of

the precedent of Taylor v. Commonwealth. Abraham C. Freeman, editor of

AMERICAN STATE REPORTS, authored an exhaustive note on the question, prompted

by a recently rendered California opinion, California ex rel. Waterman v. Freeman,

22 P. 173 (Cal. 1889). After considering Taylor v. Commonwealth, the Waterman

court held “that the power of appointment to office, so far as it is not regulated by

express provisions of the constitution, may be regulated by law, and, if the law so

prescribes, may be exercised by the members of the legislature.” Id. (emphasis

added).

Mr. Freeman’s note in AMERICAN STATE REPORTS “review[ed] all the

authorities upon this subject” including Taylor v. Commonwealth. Fox v.

McDonald, 13 So. 416, 421 (Ala. 1893). He first said Waterman was just “one of

several which have recently arisen in which the executive department of the state

has resisted a supposed encroachment, and has claimed to be the sole constitutional

depository of [appointment] powers exercised by the legislature.” 13 A. C.

-131- FREEMAN, AMERICAN STATE REPORTS 125 (1890) [hereinafter AMERICAN STATE

REPORTS]. Courts uniformly found the supposed encroachments constitutional.

Whether the lawyers who predominated at Kentucky’s 1890

Convention were aware of this national trend or of the experts’ research we cannot

say with certainty. But see Bullitt, 105 S.W. at 472 (“among the members of the

last constitutional convention were many of the most learned lawyers of the state”).

But such works as those by Cooley, Mecham, and Freeman were the lawyers’

stock-in-trade in those days before online digital legal research engines. It is

foolish to believe the delegates were unaware of Taylor v. Commonwealth and its

national prominence as they deliberated the distribution of powers among the three

departments. Certainly, they understood these scholars were speaking with one

voice, as Freeman’s thorough research concludes:

The truth is that the power of appointing or electing to office does not necessarily and ordinarily belong to either the legislative, the executive, or the judicial department. It is commonly exercised by the people, but the legislature may, as the lawmaking power, when not restrained by the constitution, provide for its exercise by either department of the government, or by any person or association of persons whom it may choose to designate for that purpose. It is an executive function when the law has committed it to the executive, a legislative function when the law has committed it to the legislative, and a judicial function, or at least a function of a judge, when the law has committed it to any member or members of the judiciary.

Id. at 130.

-132- The turn of the century did not bring an end to our Kentucky courts’

understanding and application of the principle established in Taylor v.

Commonwealth. In Sewell v. Bennett, the Court addressed competing

appointments to the Workmen’s Compensation Board. 220 S.W. 517, 518 (Ky.

1920). Ignoring Pratt 1 decided two decades before, our highest court held that

when a board or commission “is purely a legislative creation [such as the Fair

Board or even the election contest boards in Pratt 1] . . . the Legislature had the

undoubted power to make these appointments itself or give them to the Governor,

or indeed any other person or body that it might designate . . . . This power is

conferred on the Legislature by section 93 of the Constitution . . . .” Sewell, 220

S.W. at 519 (emphasis added).

In 1923, the former Court of Appeals declined to find unconstitutional

a law that “authorized the speaker of the House and president of the Senate to

make the appointments” to a commission and, having been vested with such

power, the speaker and president “had the right to act in an executive capacity.”

Craig v. O’Rear, 251 S.W. 828, 831 (Ky. 1923).

In 1930, when the General Assembly amended a statute relating to the

State Highway Commission removing the power to appoint its members from the

Governor and lodging it with an “Appointing Board,” the Governor challenged the

amendment as unconstitutional, in violation of §§ 27 and 28. Rouse, 28 S.W.2d at

-133- 746–47. Consistent with Taylor v. Commonwealth, and by its logic therefore

contradicting both Pratt 1 and Sibert, the Court rejected the argument and said:

“[I]t should also be remembered that the express mentioning in, and conferring by,

a constitutional provision of named powers and duties [as in § 93] without a further

provision confining them to those so expressly named,[78] does not create an

inhibition upon the Legislature . . . which principle grows out of the one above

mentioned; i.e., that a state Constitution is not a grant of powers to the Legislature,

but only a limitation upon them.” Id. at 747.

In 1942, the court in Johnson v. Commonwealth ex rel. Meredith said

there “are 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 other constitutional officer, concerning whose duties the constitution is

silent, or does not expressly authorize the legislature ‘to prescribe’ . . . but the

power has not been questioned.” 165 S.W.2d 820, 828 (Ky. 1942).

As discussed below, Pratt 1 and Sibert and Brown ignore this

substantial body of law born in Taylor v. Commonwealth and nurtured nationwide.

78 See footnote 62, supra, and text following, including Section 7, and the discussion of the choice by delegates to both the 1849 and 1890 Constitutional Conventions not to emulate the federal Appointment Power Clause that does include “a further provision confining them [i.e., appointment powers] to those expressly named[.]”

-134- And as will be discussed, the reasons for such exclusionary analysis can only be

and, in fact, are explained by extra-judicial motivations.

But before focusing on Pratt 1 and Sibert, some of Brown’s

independent departures from our jurisprudence must be addressed.

13. “The Legislature has all power, unless restricted by the Constitution”

In Brown, the Supreme Court rejected its appellants’“urg[ing of] this

court to adopt a so-called liberal construction of the separation of powers doctrine”

as though the idea were new and radical. Brown, 664 S.W.2d at 913. Perhaps the

Court was unaware, but that ship sailed long ago—“The ever–increasing

complexity of modern business and social conditions demands that the courts

exercise a liberal rather than a restrictive attitude toward legislative acts enacted

pursuant to the police power inherent in the exercise of governmental functions

and that such act should not be set aside lightly, but only when it is plainly

violative of some constitutional provision.” Whitaker v. Green River Coal Co.,

122 S.W.2d 1012, 1016 (Ky. 1938) (emphasis added).

The Court also refused to agree with its appellants who “argue[d] that

the General Assembly is the ‘dominant’ branch of government.” Brown, 664

S.W.2d at 913. Perhaps the Court also was sadly unfamiliar with James Madison’s

work in which he famously explained that “[i]n republican government the

legislative authority, necessarily, predominates.” ALEXANDER HAMILTON, ET AL.,

-135- THE FEDERALIST No. 51, at 356 (Benj. F. Wright ed., 1961) (emphasis added)

(hereinafter FEDERALIST). Given this principle of republican government, the

Supreme Court should have suppressed its outrage in response to what it saw as its

appellants’ suggestion that, “in Brown v. Barkley, Ky., 628 S.W.2d 616 (1982), we

denigrated the power of the Governor and gave the General Assembly a dominant

role . . . .” Brown, 664 S.W.2d at 913. Barkley didn’t do that, the nature of

republican government does it, and necessarily according to James Madison.

The Brown Court further told its appellants they were wrong to say

“the General Assembly possesses all powers and authority to act which are not

specifically denied it by the Constitution and has the authority to act in exercising

those powers.” Brown, 664 S.W.2d at 913. Said the Court, “We do not agree.” Id.

But our jurisprudence is replete with decisions that do agree with exactly what the

Brown appellants said.

“The Legislature has all power, unless restricted by the Constitution.”

Rhea v. Newman, 156 S.W. 154, 158 (Ky. 1913) (internal quotation marks and

citation omitted). “It is as fundamental as it is elementary that the legislature

expresses the will of the people and may exercise plenary power in all things

where it is not restrained by the Constitution or limited by the powers surrendered

to the Federal government.” Board of Educ. of Louisville v. City of Louisville, 288

Ky. 656, 157 S.W.2d 337, 345 (1941).

-136- The seeming ignorance of these fundamental elements of republican

government should disturb us. It was not that long ago when our courts reflexively

voiced a deeper understanding.

For example, in 1930, our high court remained confident in Judge

Cooley’s expertise, saying:

[S]tate Constitutions do not delegate power to the Legislature of the state, which body has all power unless prohibited or limited by the Constitution. In other words, state Constitutions unlike the federal one only prescribe inhibitions and limitations upon legislative power and that unless the legislative body is so prescribed and limited by the Constitution its authority is unlimited and it may enact upon any subject in the mode and manner it sees proper.

Rouse, 28 S.W.2d at 747 (emphasis in original; double emphasis added) (citing

CONSTITUTIONAL LIMITATIONS, (8th ed.) vol. 1, p. 96). See Miller v. State Bldg.

Comm’n, 214 S.W.2d 265, 276 (Ky. 1948) (discussing Legislative Department’s

“plenary and inherent powers”). Our Supreme Court said it concisely this way:

“[T]he legislative branch . . . has all governmental authority not delegated

elsewhere and not prohibited by the [Federal] Constitution.” Ex parte Auditor of

Public Accounts, 609 S.W.2d 682, 685 (Ky. 1980) (emphasis added).

Mr. Freeman in his AMERICAN STATE REPORTS nicely explains how

this concept of the General Assembly’s plenary power and the nature of the

appointment power work together.

-137- The legislature represents the whole power and authority of the people, except when they have withheld or limited such power, or have conferred it upon some other department. “In creating a legislative department and conferring upon it legislative power, the people must be understood to have conferred the full and complete power, as it rests in and may be exercised by the sovereign power of any country, subject only to such restrictions as they may see fit to impose, and to the limitations which are contained in the constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with general authority to make laws at discretion”: Cooley’s Constitutional Limitations, 87. Undoubtedly the people, being the sovereign power in every republican form of government, may make laws in such modes and at such times as they may see proper. But the people do not act directly, but by the legislature. They have granted the legislature power to do for them whatever they might otherwise do for themselves, except when they have by the constitution withheld this power. The legislature, acting for the people, may therefore provide for officials not otherwise provided for in the constitution, and may, we think, choose officials directly, or in any other mode not prohibited by the constitution.

13 AMERICAN STATE REPORTS 126–27 (emphasis added).

If there is any doubt that the delegates of the 1890 Constitutional

Convention knew this concept at their core when proposing the boundaries of

power between the three departments, just read what was said by John Carroll, one

of the delegates Brown quotes as knowing what the Convention was all about:

I inquire if it is not an elementary doctrine which has never been questioned, that when the Constitution of a State is silent, the General Assembly is supreme; and if the

-138- Legislature has not a right to do anything that is not positively prohibited by the Constitution?

4 DEBATES (1890) 5831 (Remarks of Mr. Carroll) (emphasis added).

The authority of this abundant jurisprudence and even the delegates’

words at the Constitutional Convention certainly could not have escaped the Brown

Court. The Court must have closed its eyes to it. We cannot close ours.

All that Appellees offer is the same argument that led the Court in

Brown to blind itself. Section 93’s power of appointment is prohibited, say

Appellees, by the spirit of the republican form of government and the separation of

powers doctrine as ensconced in §§ 27 and 28. But that is not the law.

14. The Judiciary cannot conjure spirits for the Governor

The circuit court in this case under review held that while § 93

authorizes the General Assembly to vest appointment power in an executive officer

other than the Governor, “at some point” that can go too far. (R. at 1001). Just

what point that might be, the circuit court did not know. (R. at 1002, n.12). It

chose not to speculate, “[g]iven the prohibition against establishing public policy

from the bench.” The circuit court believed it would be doing just that—

establishing public policy—if it “determine[ed] the number of appointments the

Governor requires to maintain constitutionality.” (Id.)

But that excuse only raises the undoubtable principle that “the

Legislature has the plenary power to declare the public policy of the state . . . .”

-139- Totten v. Parker, 428 S.W.2d 231, 238 (Ky. 1967). If it is so that the number of

members of the Fair Board the Governor gets to appoint is a question of public

policy, what prevents the General Assembly from choosing whatever number it

wants, including zero? I believe it is wisdom that prevents it and the lack of

wisdom that invites it. Hager v. Robinson, 157 S.W. at 1142 (“the justice and

patriotism of the representatives of the people” is “[t]he protection against the

unwise or oppressive legislation”).

The circuit court’s opinion hardly explains how the non-specific

powers of the inert cornerstones of the constitutional provisions upon which they

rely trump the express power of § 93 and the plenary power of the General

Assembly. As a mathematical metaphor, the circuit court proposed an equation

that 27 + 28 > 93 but could not show its proof. No one can without ignoring

longstanding precedent.

Like a medium conjuring ectoplasm from thin air, the circuit court

claimed it could discern a spirit of republicanism not expressly stated in the

Constitution, but emanating from §§ 27 and 28, and then wielded that imagined

might to realign the power of the government departments. The legacy of Brown is

the temptation to do it again—to conjure such spirits and exercise power never

given the courts. Our own jurisprudence warned against that temptation long ago.

-140- Soon after the Court in Sibert contrived and appended to § 93 an

unwritten restriction—that the General Assembly may not make appointments

itself— certain national events raised “anew the issue whether state legislatures are

limited in their powers by restrictions not found in the text of written

constitutions.” Walter F. Dodd, Extra-Constitutional Limitations Upon Legislative

Power, 40 YALE L.J. 1188, 1188 (1931) [hereinafter Dodd, Extra-Constitutional].

Opinions like Sibert and that cited first in the article, Thomas v. Reid, 285 Pac. 92

(Okla. 1930),79 prompted renewed interest in relearning “[t]he orthodox doctrine of

American constitutional law that a statute may be declared invalid only because of

conflict with the text of written constitutions”—that is, conflict with express words

of limitation. Id. at 1190. To explain the doctrine, the author turned to Justice

James Iredell’s explication in Calder v. Bull, 3 U.S. 386, 1 L. Ed. 648 (1798).

After acknowledging our courts’ duty to declare unconstitutional laws

that conflict with prohibitory language in a constitution’s text, Justice Iredell said a

court is prohibited from pronouncing a statute void:

merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest of men have differed upon the subject; and all that

79 In Thomas, the Oklahoma court “held invalid a legislative act requiring a vote of sixty per cent of the qualified voters to authorize the sale of a municipally-owned public utility, saying that majority rule is one of the foundation stones of our government and that the legislature is powerless to take away the right of local government existing in the several municipalities at the time of the adoption of the state constitution.” Extra-Constitutional, 40 YALE L.J. at 1188.

-141- the [c]ourt could properly say, in such an event, would be, that the [l]egislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.

Id. at 399. That was a warning to the courts.

Kentucky embraced this view very early on. The first of the

Kentucky opinions citing Iredell alluded to the above-quoted longer statement

before quoting a more succinct one: “We must be content to limit [legislative]

power, where we can; and where we can not, consistently with its use, we must be

content to repose a salutary confidence.” Lapsley v. Brashears, 14 Ky. 47, 105

(1823) (quoting Calder, 3 U.S. at 400). “[I]f the judges have the power to declare

a law void, because they think it unconstitutional,” said the Kentucky court, “they

may put a stop to all legislation that does not accord with their notions of policy.”

Id. (emphasis added).

Shortly thereafter, in Fisher v. Higgins, the court included the full

quote from the beginning. 21 Ky. 140 (1827). “Judge Iredell is equally explicit,

and declares that if ‘the legislature . . . shall pass a law, within the general scope of

their constitutional power, the court can not pronounce it to be void, merely

because it is in their judgment contrary to the principles of natural justice.’” 21

Ky. at 149 (quoting Calder, 3 U.S. at 399).

-142- Under the current Kentucky Constitution, our former Court of

Appeals, with some help from Judge Cooley, put the idea in its own terms in

Hager v. Robinson. “The courts are not the guardians of the rights of the people of

the state, except as those rights are secured by some constitutional provision which

comes within the judicial cognizance . . . [and that depends on whether] restrictions

upon the legislative authority can be pointed out in the Constitution, and the case

shown to come within them.” 157 S.W. at 1142 (quoting CONSTITUTIONAL

LIMITATIONS (7th Ed.) §§ 236, 237). “Pointed out” in this context means directing

the Court to specific language limiting the power of the General Assembly.

A bit more recently, our high court described the illogic and

incompatibility of the Legislative Department’s plenary power and the Judicial

Department’s supposed power to declare a statute unconstitutional without

identifying express prohibitory constitutional text. The Court said:

the theory that an act of the Legislature can offend the spirit and not the letter of the state Constitution is obviously inconsistent with the almost, if not universally, recognized fact that under such an instrument the power of the Legislature is plenary, except as therein defined.

Johnson v. Fordson Coal Co., 281 S.W. 472, 475 (Ky. 1926).

The judiciary cannot conjure the spirits of republicanism from §§ 27

and 28 to assist in usurping both the plenary and the express power of the General

-143- Assembly. But that is what was done in Brown and in the opinions essential to

Brown’s holding—Pratt 1 and Sibert. It is what the circuit court did in this case.

15. There is nothing special about Kentucky’s separation of powers provisions

It might seem sacrilegious to say there is nothing special about

Kentucky’s separation-of-powers provisions. But believing otherwise is believing

a myth that Thomas Jefferson authored them. Before busting that myth as

historically disprovable, we should test its viability as a simple question of reason.

Jefferson’s authorship was supposed to have been solicited “to insure

a more perfect separation of the powers and privileges of the three great

departments of government than was secured by” the Federal Constitution—a

document Jefferson took no part in drafting. Id. But those who did author the

Constitution, especially James Madison,80 believed its text and structure

80 Madison, a practical thinker experienced in government, never believed the complete separation of powers could yield a workable government:

The oracle who is always consulted and cited on this subject, is the celebrated Montesquieu. . . . [I]n saying “there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or “if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no partial agency in, or no control over the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted.

FEDERALIST No. 47 (Madison) (emphasis in original). He also commented on the state constitutions that had thus far been adopted: “If we look into the constitutions of the several states we find that notwithstanding the emphatical, and in some instances, the unqualified terms in which

-144- establishing a republican form of government inherently and sufficiently embodied

the concept of three separate, co-ordinate branches. They saw no need for an

express separation-of-powers provision. And when Madison examined the state

constitutions,81 he said, “in no instance has a competent provision been made for

maintaining in practice the separation delineated on paper.” FEDERALIST No. 47

(Madison). That included Jefferson’s draft of Virginia’s constitution.

So, what does “a more perfect separation” mean? We know this

much. Nothing in “the political apothegm” of the separation-of-powers doctrine

“require[s] that the legislative, executive, and judiciary departments should be

wholly unconnected with each other.” FEDERALIST No. 48 (Madison).

“The men who met in Philadelphia in the summer of 1787 were

practical statesmen, experienced in politics, who viewed the principle of separation

of powers as a vital check against tyranny.” Buckley v. Valeo, 424 U.S. 1, 121, 96

S. Ct. 612, 683, 46 L. Ed. 2d 659 (1976). “But they likewise saw that a hermetic

sealing off of the three branches of Government from one another would preclude

the establishment of a Nation capable of governing itself effectively.” Id. Do

Kentucky jurists conceive of “a more perfect separation” as the hermetic sealing of

this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.” Id. He took special note that “[t]he language of Virginia[’s constitution] is still more pointed on this subject . . . .” Id. 81 Each of the original 13 states had adopted a constitution.

-145- our separate departments from one another, no matter what the rest of the

Constitution says? I think not. Why would we? How could we do so and still call

ourselves a government of the People?

If “people are entitled to that form of government they wish,”

Votteler, 23 S.W.2d at 590, and if Kentuckians from time to time put to use the

most significant part of § 28 (and its antecedents)—its exceptions clause— for

example by shifting the appointment powers from the Governor to the General

Assembly in 1850, is it the purpose of this “more perfect separation” to empower

the Judicial Department to undo that expression of the will of the People? Is our

judiciary naïve enough to believe it possible to define an equipoise of power

among the three branches, and brazen enough to say we judges can establish it? If

the Founders could do neither, why should we believe we can?

As far as I understand them, §§ 27 and 28 do no more or less than the

unwritten understanding of the Federal Constitution’s establishment of the

tripartite system of republican government. These sections tell us there are

boundaries between the three departments, and we must simply remember that the

People define the contours of those boundaries in the language of the remaining

sections of the Constitution. Sections 27 and 28, just like the corresponding

-146- provisions of all the states and commonwealths in the Union,82 identify our state

government as tripartite and republican, notwithstanding that the boundaries and

degree to which interstitial power is exercised necessarily varies from state to state.

Thus, two states can have different republican forms of government, one in which

the People grant more express powers to the Executive Department and expressly

place more limits on the legislature’s plenary power, such as North Carolina, while

another state’s People withhold express powers from the Governor and impose

fewer limitations on the General Assembly’s plenary powers, such as Kentucky.

82 There is a presumption in the chutzpah that Kentucky’s separation-of-powers provisions are qualitatively better than those of other states. It is the presumption that such provisions can vary in strength. But if that is so, then the Federal Constitution, with no such provision, would be weakest by far. The assertion in Kentucky opinions that ours are the strongest separation-of- powers provisions is just “my-dad-can-beat-up-your-dad” braggadocio that has no place in thoughtful jurisprudence. These provisions have an important purpose, of course. It is to identify the state governments as embracing the republican form of government, a requirement of the Federal Constitution for statehood, U.S. CONST. art. 4, § 4, and to prohibit arbitrary power from being exercised by any branch. Arkk Properties, LLC v. Cameron, 681 S.W.3d 133, 140 (Ky. 2023) (internal quotation marks and citations omitted) (“The doctrine of the separation of powers was adopted . . . to preclude the exercise of arbitrary power. The purpose was . . . to save the people from autocracy.”).

But if we accept this unfounded presumption, we must swallow our pride because New Hampshire might have a better claim for top honors. Its separation-of-powers provision says its three branches of government “ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit[.]” N.H. CONST. Pt. 1, art. 37th. If we are frank, we will admit Kentucky’s provisions are simply not, in any substantial way, unlike the corresponding provisions of other states and commonwealths. See, e.g., ARK. CONST. art. IV, §§ 1, 2; COLO. CONST. art. III; CONN. CONST. art. II; FLA. CONST. art. II, § 3; IND. CONST. art. III, § 1; LA. CONST. ANN. art. II, §§ 1, 2; ME. CONST. art. III, §§ 1, 2; MD. CONST. Decl. of Rts. art. 8; MASS. CONST. Pt. 1, art. XXX; MO. CONST. art. II, § 1; NEB. CONST. art. II, § 1; NEV. CONST. art. III, § 1; N.J. CONST. art. III, ¶ 1; TENN. CONST. art. II, §§ 1, 2; VA. CONST. art. I, § 5; art. III, § 1; VT. CONST. CH II, § 5; W. VA. CONST. art. V, § 1.

-147- Both satisfy the Federal Constitutions guarantee and requirement of a republican

form of government. U.S. CONST. art. 4, § 4.

The notion that it is the courts’ duty to maintain a balance of power

among the branches, or even that these powers can be measured in a way that

permits an apples-to-apples comparison branch-to-branch, is fantastic. We are

foolish to try. And we violate the Constitution when we do.

16. The Myth of Jefferson’s involvement in Kentucky’s Constitution

The legend that Thomas Jefferson authored Kentucky’s separation-of-

powers provisions is hypnotic. It is time to come out of our trance.

The idea that the walls separating the departments of Kentucky’s

government are taller or wider or stronger than those of any other state’s

constitution stems from the imaginings of Judge George DuRelle.83 He first told

his tale in Sinking Fund v. George, in a dissenting opinion. 47 S.W. at 785

(DuRelle, J., dissenting). It was a hoax. A hundred years passed before we even

suspected anything.

In 2005, the Supreme Court discovered “Judge Du Relle cited to no

authority for the following account of Jefferson’s role. Later authorities cite only

to Judge Du Relle’s dissents in George and Purnell, infra.” Fletcher, 163 S.W.3d

83 See biography of George DuRelle (1852-1926), in 2 E. POLK JOHNSON, A HISTORY OF KENTUCKY AND KENTUCKIANS 862–63 (1912) [hereinafter KENTUCKIANS].

-148- at 861 n.3. The Court apparently never looked further. Now we must examine

those suspicions because the hoax has played an overwhelming role in our

jurisprudence ever since Judge DuRelle first perpetrated it.

How has the hoax lasted a century and a quarter? Because “lawyers

[a]re interested in precedents, but not in history.” FRIEDMAN, 11–12. History tells

us the story was first told in an age when facts often took a backseat to grandiose

rhetoric. In his “Cross of Gold” speech, William Jennings Bryan appealed to his

audience’s patriotism and invoked images of the Resurrection. DuRelle’s dissent

appealed to his audience’s patriotism and invoked images of America’s founding.

He started by naming Kentucky the “firstborn daughter of Virginia.”

Id. at 787. He then planted seeds of a missed opportunity, speculating what

Jefferson would have done had he participated in drafting the Federal Constitution:

[H]ad Mr. Jefferson been in America at the time of the adoption of the federal constitution, that instrument would, in all probability, have contained the enactment which we find only in the constitution of Kentucky, with its three distinct provisions: First, that the government shall be divided into three distinct departments; second, that each of them shall be confined to a separate body of magistracy; and, third, that no person or collection of persons shall exercise any power properly belonging to either of the others . . . .

Id. at 785. Besides erroneously saying no other state has such provisions—they all

do—what Judge DuRelle thought Jefferson would have done is, of course, naked

speculation. Jefferson would have had to match wits on the subject with James

-149- Madison who thought express statements of the separation of powers, at least for

the Federal Constitution, was unnecessary, perhaps even pointless. See Seila Law

LLC v. Consumer Financial Protection Bureau, 591 U.S. ___, 140 S. Ct. 2183,

2205, 207 L. Ed. 2d 494 (2020) (internal quotation marks omitted) (“It is true that

there is no ‘removal clause’ in the Constitution, [citation omitted], but neither is

there a ‘separation of powers clause’ or a ‘federalism clause.’ These foundational

doctrines are instead evident from the Constitution’s vesting of certain powers in

certain bodies.”). The historical record indicates Jefferson had less interest in

challenging Madison’s view than DuRelle wanted us to believe.

Jefferson was familiar with the Constitution’s language—or lack of it

on this point—well before he returned to America from his service as Minister to

France in 1790. From Paris, he wrote to his good friend, Kentuckian John

Brown,84 expressing little reservation about the founding document. “I am greatly

84 John Brown (1757-1837) was born in Staunton, Virginia, was close friends with George Washington, John Adams, Thomas Jefferson, and James Madison, served in the Revolution and afterwards attended William and Mary, 1778-80, before studying law under George Wythe and Jefferson. Around 1783 Brown moved to Kentucky and practiced law, first in Danville and then in Frankfort. He represented the Kentucky district in the Senate of Virginia, 1784-88, and in the Confederation Congress, 1787-88, and he supported the new federal constitution. Brown was elected from Virginia to the United States Congress, 1789-92, and represented the new state of Kentucky in the United States Senate, 1792-1805, allying himself with Jefferson and Madison and serving as president pro tempore, 1803-04. Losing his bid for a third term, Brown returned permanently to Liberty Hall, his home in Frankfort, where he again practiced law. Letter James Madison to George Washington (April 10, 1788), in 6 W. W. ABBOT, THE PAPERS OF GEORGE WASHINGTON, CONFEDERATION SERIES, 1 JANUARY 1788 – 23 SEPTEMBER 1788 202–03 n.2 (1997); “Rules of the Constitutional Society of Virginia, [ca. 14 June] 1784,” in 8 ROBERT A. RUTLAND AND WILLIAM M. E. RACHAL, ED., THE PAPERS OF JAMES MADISON, 10 MARCH 1784 - 28 MARCH 1786 71–75 n.3 (1973) [hereinafter MADISON PAPERS].

-150- anxious to hear that nine states accept our new constitution[,]” he wrote. “We

must be contented to accept of its good, and to cure what is evil in it hereafter.”

Letter from Thomas Jefferson to John Brown (May 28, 1788) in 13 JULIAN P.

BOYD, ED., THE PAPERS OF THOMAS JEFFERSON, MARCH–7 OCTOBER 1788, 211–13

(1956)85 [hereinafter JEFFERSON PAPERS].

I do not deny that Jefferson likely preferred express separation-of-

powers language because he urged it in Virginia’s constitution of 1776, although

he also included quite the exception by allowing that “Justices of the County

Courts shall be eligible to either House of Assembly.” VII. The Constitution as

Adopted by the Convention (June 29, 1776) in 1 JEFFERSON PAPERS, 1760–1776

377–86 (1950). We would call the idea of sitting judges simultaneously serving in

the General Assembly quite the breach of a tripartite republican government.

Compare the separation of powers provisions in the first constitutions

of Virginia and Kentucky and you might ask why Jefferson, if he did author

Kentucky’s version, could not persuade Virginia delegates to adopt a “more

perfect” version like ours.

Although they certainly differ, the 1776 Virginia constitution may

well be the actual inspiration for Kentucky’s 1792 version of its own. But there is

85 Digital versions of the cited letters of the Founders and their correspondents are found at Founders Online, National Archives, https://founders.archives.gov/documents.

-151- not the least suggestion in Jefferson’s correspondence with his good friend in

Kentucky that he believed such a provision must be or should be included in the

Kentucky or Federal Constitutions. If Jefferson did not tell this to his good friend

John Brown, who did DuRelle say he told?

According to Judge DuRelle, Jefferson insisted to two others—men

who later became prominent in Kentucky politics—that it was dangerous not to

include in our constitution the strongest separation-of-powers language that could

be written. DuRelle said:

[H]aving been appointed secretary of state [on March 22, 1790], [Jefferson] obtained permission to go to Monticello for some months. John Breckinridge and George Nicholas paid him a visit there, and informed him that Kentucky was about to frame a constitution for herself, and that Virginia was about to permit Kentucky to become a separate and independent state. He told them that there was danger in the federal constitution, because the clause defining the powers of the departments of government was not sufficiently guarded, and that the first thing to be provided for by the Kentucky constitution should be to confine the judiciary to its powers, and the legislative and executive to theirs. Mr. Jefferson drew the form of the provision, and gave it to Nicholas and Breckinridge; and it was taken by Nicholas to the convention which met at Danville, and there presented,—Breckinridge not being present at the convention. There was much discussion and dissent when the article was offered, but, when its author was made known, the respect of Kentucky for the great name of Jefferson carried it through, and it was at once adopted.

George, 47 S.W. at 785 (DuRelle, J., dissenting). I find this account unbelievable.

-152- First, if Breckinridge and Nicholas informed Jefferson in 1790 of

Kentucky’s desire to separate from Virginia, it was very old news to Jefferson.

Jefferson himself drafted the provision of Virginia’s 1776 constitution that allowed

Kentucky to become a state. 1 BOYD, JEFFERSON PAPERS 385. More importantly,

James Madison wrote Jefferson in Paris in early 1786 letting him know the “Act

concerning the erection of Kentucky into an independent State” had come before

the Virginia Assembly “and passed without opposition.”86 Letter from James

Madison to Thomas Jefferson (Jan. 22, 1786) in 8 ROBERT A. RUTLAND AND

WILLIAM M. E. RACHAL, ED., THE PAPERS OF JAMES MADISON, 10 MARCH 1784 – 28

MARCH 1786 472–82 (1973) [hereinafter MADISON PAPERS]. This plan for

statehood was in the works for years and was far from a surprise to Jefferson.

Second, although John Breckinridge87 traveled to Kentucky in 1789 at

the urging of two half-brothers who settled in Louisville, the state was still a

86 This is not to suggest nothing more was necessary to effectuate statehood. However, Jefferson was not one to be wanting for information about domestic affairs or politics of Virginia or any of her counties. 87 John Breckinridge (1760-1806), drafted the address with which a committee of Albemarle County residents welcomed TJ home from France in February 1790; Breckinridge’s signature appears seventh among the thirteen who signed it. I. The Welcome, 12 February 1790, 16 JEFFERSON PAPERS 177–78. After holding office as attorney general of Kentucky, 1795–97, Breckinridge served in the lower house of the state legislature, 1797–1801, presiding as speaker from 1799, where he guided a modified version of Jefferson’s Kentucky Resolutions of 1798 through the legislature. He represented Kentucky in the United States Senate from 1801 to 1805 and was appointed Attorney General by Jefferson during the latter year, serving until his death. ADRIENNE KOCH, JEFFERSON AND MADISON: THE GREAT COLLABORATION 185, 187–88, 196–201, 209 (1950); JAMES C. KLOTTER, THE BRECKINRIDGES OF KENTUCKY 3–16 (1986) (hereinafter BRECKINRIDGE).

-153- dangerous place and he hesitated to relocate. In 1792, he was still active in

Albemarle County politics and was elected then and there to serve Virginia in

Congress. When he finally did move to Kentucky in August 1792 to take

advantage of the “desperate paucity of skilled lawyers,” Kentucky’s constitution

was already two months old. JAMES C. KLOTTER, THE BRECKINRIDGES OF

KENTUCKY 3–12 (1986) (hereinafter BRECKINRIDGES). That is why, as Judge

DuRelle admits, Breckinridge took no part in Kentucky’s 1792 Convention. He

was not here yet.

If Breckinridge had an interest in our constitution before relocating,

his biographer makes no mention of it. Id. at 1–37. And for Breckinridge to make

Kentucky’s Constitution that much of a priority would have taken his focus away

from planning and actually relocating a family, “whose Happiness is my greatest

object[,]” and establishing a law practice in Lexington. Id. at 3 (quoting Letter

from John Breckinridge to James Breckinridge (Aug. 17, 1788) in 5 BRECKINRIDGE

FAMILY PAPERS, MANUSCRIPT DIVISION, LIBRARY OF CONGRESS),

There is no doubt a relationship spawned between Jefferson and

Breckinridge that may have begun as early as mid-1796.88 But if any relationship

88 See footnote 87, supra. Jefferson sent a second letter of introduction in 1796. Letter from Thomas Jefferson to John Breckinridge (June 21, 1796) in 29 JEFFERSON PAPERS, p. 131. But no communication of substance between the two appears among Jefferson writings until early 1800— and, still, Jefferson misspelled his name. Letter from Thomas Jefferson to John Breckinridge (Jan. 29, 1800) in 31 JEFFERSON PAPERS, pp. 344–45 (discussing Alien and Sedition Acts and the Virginia and Kentucky Resolutions).

-154- existed between the thirty-year-old Breckinridge and the forty-seven-year-old

Jefferson in 1790, we will never know just how warm it was. The first known

correspondence between the two is a 1793 letter from Jefferson addressed to “Mr.

Brackenridge” in Kentucky and introducing “a gentleman who goes to visit your

state with a view to settle in it.” Letter from Thomas Jefferson to John

Breckinridge (Oct. 25, 1793) in 27 JEFFERSON PAPERS 270–71.

Frankly, both Breckinridge and George Nicholas seem to have been

on more intimate terms with James Madison than with Jefferson. Memorial and

Remonstrance against Religious Assessments, [ca. 20 June] 1785, 8 MADISON

PAPERS, 10 MARCH 1784 – 28 MARCH 1786 295–306 (Commentary: “Nicholas and

other young men in the Piedmont whom Madison could trust to keep his secret—

Archibald Stuart, John Breckinridge”). And it was Madison who drafted much of

the Federal Constitution without express separation-of-powers provisions.

The other Kentuckian Judge DuRelle says visited Jefferson was

George Nicholas. Nicholas needed neither education nor encouragement from

Others may choose to be generous in the assessment of Judge George DuRelle by suggesting he confused Jefferson’s ghost authorship of the Kentucky Resolutions opposing the Alien and Sedition Acts, somehow mistaking it for the falsehood he advanced over and again. See BRECKINRIDGE 20–22 (“In Kentucky, [John] Breckinridge and his old ally George Nicholas led the movement for repeal of the Alien and Sedition laws. . . . [Breckinridge obtained] an important draft document prepared by Jefferson . . . [from which] evolved the famous Kentucky Resolutions of 1798. Precisely how Breckinridge received the original draft is uncertain. . . . As revised, the Kentucky Resolutions did not completely satisfy Jefferson.”). Given how frequently DuRelle repeated the story, expressly acknowledging he had done no research to confirm it despite ample opportunity to do so, I cannot be so generous.

-155- Jefferson about the Federal Constitution. Two years before Jefferson’s return to

America, Nicholas actively participated89 in the Virginia Ratifying Convention,

June 2–27, 1788, voting in favor of ratification in a close vote, 89 to 79. Not only

did Nicholas display a knowledge of Montesquieu’s thinking on the separation of

powers, he voted in favor of recommending that Congress add a prefatory

declaration to include the following language: “That the legislative, executive, and

judiciary powers of Government should be separate and distinct . . . .” 3

JONATHAN ELLIOT, ED., THE DEBATES OF THE SEVERAL STATE CONVENTIONS, OF

THE ADOPTION OF THE FEDERAL CONSTITUTION 247, 654, 657–58 (1861)

[hereinafter ELLIOT, DEBATES]. Although that recommendation was rejected, it

demonstrates Nicholas held that view two years before Jefferson returned to

America and that contradicts DuRelle’s tale that Jefferson gave him the idea. But,

given what is known about their relationship, I doubt Nicholas even would have

dared darken Jefferson’s door in 1790.

In the summer of 1781, as a brash, young, and new representative in

the Virginia Assembly, Nicholas preferred charges against Jefferson for his

conduct as the state’s governor. See Charges Advanced by George Nicholas, with

89 Only 21 of the Virginia’s 170 delegates spoke at the Convention. VIRGINIUS DABNEY, VIRGINIA: THE NEW DOMINION 179 (1971). George Nicholas spoke at length on multiple days. ELLIOT, DEBATES 7–21, 97–103, 236–47, 332–33, 356–61, 370, 388–93, 403, 426–28, 430, 434–35, 442– 44, 449–52, 456–58, 460, 476–77, 482–83, 497–502, 506, 523, 576–82, 627, 662.

-156- Jefferson’s Answers, (after July 31, 1781) in 6 JEFFERSON PAPERS, 21 MAY 1781–1

MARCH 1784 106–109. Hardly in the spirit of the season, on Christmas Eve that

year, Jefferson said Nicholas was “[t]he trifling body who moved this matter” and

that he “was below contempt; he was more an object of pity” with a “natural ill-

temper[.]” Letter from Thomas Jefferson to Isaac Zane (Dec. 24, 1781) in 6

JEFFERSON PAPERS, 21 MAY 1781–1 MARCH 1784 143–44. “On the day appointed

for hearing his charges he withdrew from the house,” said Jefferson. So, Jefferson

announced the charges himself and then defended against them, after which the

Assembly “passed an unanimous vote of approbation[.]” I. Diary of Arnold’s

Invasion and Notes on Subsequent Events in 1781: Versions of 1796?, 1805, and

1816, 4 JEFFERSON PAPERS, 1 OCTOBER 1780 – 24 FEBRUARY 1781 258–68.

While Jefferson served as Minister to France starting in 1785, he

continued to read Virginia newspapers sent to him in diplomatic pouches from

Washington. He took note that in one of them “George Nicholas advertised his

departure to settle in Kentuckey [sic] this present month of February [1789].”

Letter from Thomas Jefferson to William Short (Feb. 28, 1789) in 14 JEFFERSON

PAPERS 8 OCTOBER 1788 – 26 MARCH 1789 596–98.

After returning home and a year after DuRelle said Nicholas called on

him, Jefferson wrote to Philip Mazzei, a Florentine merchant and immigrant to

Virginia, noting that Nicholas may have double charged him for legal services but

-157- saying “neither that nor any other matter of account is worth enquiring into as to

him, as he has settled that and all his immense debts by an insolvency and

retirement to Kentuckey.” Letter from Thomas Jefferson to Philip Mazzei (Aug. 2,

1791) in 20 JEFFERSON PAPERS 1 APRIL–4 AUGUST 1791 713–15.

Not until 1798, after Nicholas publicly apologized for his youthful

actions in 1781 deriding Jefferson before the Virginia Assembly, did Jefferson

have anything kind to say about Nicholas. I. Diary of Arnold’s Invasion and Notes

on Subsequent Events in 1781: Versions of 1796?, 1805, and 1816, 4 JEFFERSON

PAPERS, 1 OCTOBER 1780 – 24 FEBRUARY 1781 258–68 (referring to him then as an

“honest and honorable man[.]”). Whether Nicholas would have felt welcome

enough to venture a visit to Monticello before 1798 is highly unlikely.

The third reason I find Judge DuRelle’s story unbelievable is that he

gives us more detail about the 1792 Kentucky Constitutional Convention than any

extant records can substantiate. Jefferson makes no mention of any of it in any of

the many thousands of records that the habitual recordkeeper saved. If Jefferson

had participated in the formation of Kentucky’s Constitution, even in the most

remote way, it would not have been like him to keep it a secret. We must look

elsewhere. Did DuRelle have some personal knowledge? It is not likely.

DuRelle was born in New York six decades after the events about

which he claims to have this intimate knowledge. Still, he purported to know: (1)

-158- there was much debate and discussion at the 1792 convention about the separation

of powers; (2) George Nicholas offered the language of what is now §§ 27 and 28;

and (3) once Nicholas invoked the sainted name of Jefferson as their author, they

sailed through passage. That is not what the historical record says.

The only records of Kentucky’s first constitutional convention we

have are memorialized in STATE BAR ASSOCIATION OF KENTUCKY, JOURNAL OF THE

FIRST CONSTITUTIONAL CONVENTION OF KENTUCKY, HELD IN DANVILLE,

KENTUCKY, APRIL 2 TO 19, 1792 (1942) [hereinafter JOURNAL]. A mere 22 pages

long, there is no mention of Thomas Jefferson. On Friday the 13th of April 1792,

the convention resolved itself in a committee of the whole “and had come to

sundry resolutions” which were presented to the Clerk and read twice,

some of them amended & then the whole agreed as follows viz.

Resolved, That the powers of Government ought to be divided into three distinct departments each of them to be confided to a separate body of Magistracy Towit, those which are legislative to one, those which are executive and those which are judiciary to another except in such case as may hereafter be particularly excepted.

JOURNAL 4.

George Nicholas headed a select committee that gathered these

resolutions and prepared a constitution, but nothing indicates Nicholas had any role

in a specific separation-of-powers provision. Id. at 9. The committee completed

-159- its work and presented the draft constitution to the convention on Tuesday, April

17, after which the convention adjourned until the next day, no doubt to allow the

delegates to read and consider the draft. Id. The next day, the delegates debated

proposed amendments. The first was a minor amendment to Article 1, Section 4.

Id. at 9–10. There is no record of debate, discord, or further discussion of the first

two sections of Article 1, what we now know as §§ 27 and 28. The Constitution

was adopted on April 19, 1792, the seventeenth anniversary of the Battle of

Lexington and Concord. Id. at 22.

Thomas Jefferson’s involvement in our constitution is a tall tale. Why

DuRelle created it deserves separate treatment, see infra, in discussing how he

resurrected the tale to justify reversing George and its progeny in Pratt 1.

Spinning this tale and its Jefferson tie again clouded jurists’ thinking

in LRC v. Brown, or so I believe. Before that, the same tale led to a simpleminded

metaphor first used in Sibert v. Garrett, that of a “tripod,” to describe our form of

government. The metaphor added to Brown’s errant analysis.90

90 We should apologize to Louisiana. In Saint v. Allen, 126 So. 548 (La. 1930), the Supreme Court of Louisiana noted the language in CONST. OF LA. of 1812, art. I, §§ 1, 2, were copied verbatim from Kentucky’s Constitution. Then, the Louisiana court swallowed the Thomas Jefferson myth hook, line, and sinker. The Louisiana high court said its own separation-of-powers article “was written by Thomas Jefferson himself.” Id. at 552. The opinion repeat the full embellishment to be drawn for the several Kentucky versions of the tale and giving complete credit for the story.

Judge Du Relle’s [dissenting] opinion [in George], when rendered, was not authority, except for the historical information which it contained, because the majority of the members of the court did not then agree with him that the Kentucky

-160- 17. “American tripod”—a naïve and deceptive metaphor

It was the Sibert court that first described our state constitution’s

“divisional structure as the ‘American Tripod form of Government’” Arnett v.

Meredith, 121 S.W.2d 36, 37 (Ky. 1938). We should not be surprised. The

analogy of a stool with three legs of equal length was essential to another myth—

that “equalizing” the power of government’s three branches is both possible and

the responsibility of the judiciary. That myth was essential to Sibert’s reasoning.

The Brown Court bought into the “tripod” analogy completely, blinding it to the

substantive jurisprudence that Pratt 1 then Sibert chose to ignore and exclude.

When the appellants in Brown cited Barkley to support their argument

that the General Assembly and not the Governor had the power to exercise an

executive power to appoint persons to its LRC subcommittee, the Court reacted as

though offended, interpreting the argument as a charge that “this Court has sawed

off one of the legs of the tripod, viz., that of the executive, and that we have made

that branch of government less than equal to the other two branches.” Brown, 664

S.W.2d at 913. “Nothing in Barkley can be construed to deny the existence of the

statute in question was unconstitutional; but Judge Du Relle’s opinion afterwards became authority, for it was adopted as the prevailing opinion in Pratt v. Breckinridge, 112 Ky. 1, 65 S. W. 136, 66 S. W. 405; where it was held that the Legislature had not, under its authority to create a public office, the power to elect or appoint the officer or officers to fill it.

-161- doctrine of separation of powers and the equality of the three coparceners in

government.” Id.

The Brown Court equated the separation of powers doctrine with a

judicial responsibility to maintain equal power among the three branches. This

argument directly reflects the Anti-federalists’ position in 1787. “One of the[ir]

principal objections” to the draft of the Constitution was “its supposed violation of

the political maxim, that the legislative, executive, and judiciary departments,

ought to be separate and distinct.” FEDERALIST No. 47 (Madison). They saw

“[t]he several departments of power” as having been “distributed and blended in

such a manner, as at once to destroy all symmetry and beauty of form: and to

expose some of the essential parts of the edifice to the danger of being crushed by

the disproportionate weight of other parts.” Id. Madison dispatched the Anti-

federalists’ objection in FEDERALIST Nos. 47 and 48. But Brown resurrected the

Anti-federalists’ concern as though the Court discovered a legitimate fear mislaid

for two hundred years. That is evident from the opinion’s hyperbolic claim that

“[n]early every one of our sister state courts have similarly resisted any weakening

of the doctrine of the separation of powers.” Id. at 914.

Brown cites only two opinions for this quite broad claim. The first is

State ex rel. Wallace v. Bone, 286 S.E.2d 79 (N.C. 1982), a North Carolina opinion

distinguished by that state’s subsequent opinion, Cooper II, supra. Cooper II said

-162- violation of the separation of powers provisions occurs when the legislature has

“unreasonably disrupt[ed] a core power of the executive” such as North Carolina’s

express constitutional grant of appointment power as discussed in Part Two,

Section 10, supra. Cooper II, 852 S.E.2d at 63. But no core power of the

executive was disrupted in that case. The North Carolina Court said when a power

not constitutionally and expressly granted to the governor is a delegation by the

General Assembly of a portion of its plenary power, such as to make public policy,

the Governor’s exercise of that interstitial discretionary authority is not a violation

of the separation of powers provisions. Id. at 64.

That is entirely consistent with my, and Appellants,’ view of the case

under review. The power to appoint Fair Board members is entirely within the

necessary power of § 93 that prohibits the Governor from making such

appointments and within the General Assembly’s plenary powers to do so. The

relinquishment by delegation of that power to the Governor to make any

appointments at all is part of what Snyder & Ireland call the “play in the joints”

between the Executive and Legislative Departments. Snyder & Ireland, Analysis,

at 186. The Governor enjoys the power to appoint members of the Fair Board by

the prerogative of the General Assembly’s delegation of its own power to do so,

and it delegates that power consistently with and because of the authority of § 93.

-163- The Brown Court seems not to have read too closely the only other

case it cites—State ex rel. McLeod v. McInnis, 295 S.E.2d 633, 634 (S.C. 1982).

Like Brown, McInnis addressed the constitutionality of a body other than the

legislature that was exercising legislative power, “the Joint Appropriation Review

Committee (JARC), which is composed of six members of the Senate and six

members of the House of Representatives . . . .” Id. at 634. Unlike Brown,

McInnis never doubted that the legislature could appoint its own members to serve

on a committee or board. Id. at 635 (“The right of the members to serve in their

capacity as legislators is not contested. It is their right to exercise powers.”).

Furthermore, rather than resisting a weakening of the separation of powers,

McInnis “acknowledged that ‘there is tolerated in complex areas of government of

necessity from time to time some overlap of authority and some encroachment to a

limited degree.’” S.C. Pub. Interest Found. v. S.C. Transp. Infrastructure Bank,

744 S.E.2d 521, 526 (S.C. 2013) (quoting and interpreting McInnis, 295 S.E.2d at

636). If only the Brown Court could have disciplined itself to address the case as

the delegation-of-powers case it was, it might simply have quoted McInnis as

holding that “Legislative authority may not be delegated.” Id. at 639.

How does one even measure an equality of power in such a complex

system? It is not as simple as evening up the three legs of a stool. If we must have

an analogy, perhaps it should be a steam engine with component parts of a boiler, a

-164- piston, and a regulator.91 We should, at least, shed ourselves of this idea of a tripod

which, by its simplicity, is deceptive. Other than Kentucky, no state’s judiciary—

not one—falls for such a simple analogy.92 It is naïve and teaches us nothing while

tempting us to think no further, no deeper.

This superficially pleasing but nescient metaphor stifles intellectual

curiosity. It fosters acceptance of a co-equality of government’s branches in the

strictest sense rather than pursuit of an understanding of what the Founders

envisioned—co-ordinate branches of government. See Bevin v. Commonwealth ex

rel. Beshear, 563 S.W.3d 74, 79 (Ky. 2018) (“coordinate branch of the

government”); Philpot v. Haviland, 880 S.W.2d 550, 553 (Ky. 1994) (“coordinate

branches”); Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001) (“coordinate

branches”); Knight v. Spurlin, 226 S.W.3d 844, 849 (Ky. App. 2007) (“coordinate

branches”). But just changing the adjective in our jurisprudence is not enough.

We must go far back in Kentucky jurisprudence to find even a

simplistic description of what “co-ordinate branches” means. “The three branches

91 This last part of a steam engine is known as a governor, but that would have confused the analogy with the boiler being the Legislative Department, the piston being the Executive Department, and the regulator (governor) being the Judicial Department. 92 Only a single opinion from the federal courts even deigns to quote it, and then, only to note its prosaism. Maxwell’s Pic-Pac, Inc. v. Dehner, 739 F.3d 936, 942 (6th Cir. 2014) (“Kentucky’s constitution . . . ‘emphatically separates and perpetuates what might be termed the American tripod of Government.’ . . . But, even in Kentucky, this principle means only that the “duty to define general terms cannot be delegated by the legislative branch to the executive branch” (citations omitted)).

-165- of government are co-ordinate and yet each, within the administration of its own

affairs, is supreme.” Burton v. Mayer, 118 S.W.2d 547, 549 (Ky. 1938). We must

regain and elucidate the concept of coordinacy and stop leaning on the grade

school civics class understanding infecting our jurisprudence.

18. Co-ordinate, not co-equal branches

Section 27 says “[t]he powers of the government . . . shall be divided

into three distinct departments . . . .” Section 28 says no department or person in

any department is allowed to “exercise any power properly belonging to either of

the others, except” when the People allow it. Together, these sections do not

describe a system of equal powers but one of coordinacy, of grants of authority co-

ordained by the People. James Madison explained: “The several departments

being perfectly co-ordinate by the terms of their common commission, neither of

them, it is evident, can pretend to an exclusive or superior right of settling the

boundaries between their respective powers.” FEDERALIST No. 49 (Madison).

That obviously includes the judiciary. Only the Constitution itself, by express

terms, can settle those boundaries.

Professor Michael Stokes Paulson, lead author of the University

Casebook, The Constitution of the United States (5th ed. 2022), more thoroughly

explains the concept of coordinacy, as follows:

The “coordinacy” of the three branches of the federal government is one of the fundamental political axioms of

-166- our federal Constitution. The legislative, executive, and judicial departments are “co-ordinate” in the sense that they are all ordained (co-ordained) by the same authority—the People themselves—and are, consequently, coequal in title and rank as representatives of the People. None is subordinate (the very opposite of “coordinate”) to another.

This does not mean that the branches are equal in the quantum of powers assigned to them. They plainly are not. Madison and Hamilton, writing as “Publius” in The Federalist, take pains to point out that the legislative power necessarily predominates in a republic and that the judicial branch is by far the weakest of the three in terms of the relative powers assigned to it and the practical means of defending those powers against encroachments by the other two branches. This does not make the judicial branch any less coordinate with the other two branches in terms of the source of its authority and the relationship of its authority to that of the other two branches. Coordinacy is a term of power-relationship, not of power-scope. The three branches possess unequal powers but equal title from the People to exercise those powers that they do possess.

Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say

What the Law Is, 83 GEO. L.J. 217, 228–29 (1994) (footnotes omitted).

North Carolina opinions, including one cited by Appellees and the

circuit court, demonstrate that its judiciary understands the concept. State v.

Berger, 781 S.E.2d at 256 (“Although the text of the separation of powers clause

has changed very little since 1776, the powers that the current constitution

allocates to the legislative and executive branches have changed significantly.”).

-167- The truth is this—equipoise of power in a tripartite system of

government is not an expectation. It is not even an aspiration. Because “[a]ll

power is inherent in the people, . . . they have at all times an inalienable and

indefeasible right to alter . . . their government in such manner as they may deem

proper.” CONST. OF KY. of 1891, § 4. The People can choose to assign legislative

power to the Governor, for example. As our highest court held:

All American courts . . .—as well as all text writers on the subject—unanimously hold that the exercise by the Governor of the veto power conferred upon him by the local Constitution is a legislative act and involves an encroachment by the executive department upon the functions of the legislative department, and which is one of the exempted “instances hereinafter expressly directed or permitted,” as is contained in section 28, supra, of our Constitution.

Arnett v. Meredith, 121 S.W.2d 36, 37 (Ky. 1938) (emphasis added).

The exception clause of § 28 contemplates that the People who, in

1792, came up with it in the first place will, from time to time, use it. The

evolution of Kentucky’s Constitution demonstrates, with respect to the

appointment power, that the People altered the coordinacy of the Executive

Department and Legislative Department in 1850, and in 1891 by means of § 93.

By adopting those constitutions, the People redistributed from the Executive

Department to the Legislative Department the power to determine how to appoint

or elect inferior state officers and others, and it did not matter to the People

-168- whether that power was intrinsically executive or not. And, in North Carolina in

1868, the People of that state redistributed the power in the opposite direction.

Could both republican governments be said to have established equipoise of power

between their respective legislative and executive branches? Certainly not.

But the Brown Court clearly believed in that “hermetically sealed”

division of the branches rejected by the Founders. That is obvious from the

passage from Brown that Appellees and the circuit court rely on: “[T]he 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.” Id. at 913 (emphasis in original). This entirely

ignores the irrefutable fact that “[an]other power is given” by the People to the

General Assembly—the power to appoint inferior state officers—in three different

ways: (1) as a core concept of republicanism by the plenary power of the General

Assembly exercised on behalf of the People to the fullest extent not expressly

limited by the People in the Constitution (and there is no such restriction); (2) by

refraining from granting to the Governor or any other executive officer, or the

judiciary or any judicial officer, the power to appoint inferior state officers like

those of the Fair Board; and (3) by expressly stating:

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

-169- requirement of consent by the Senate, for a term not exceeding four years, and until their successors are appointed or elected and qualified.

CONST. OF KY. of 1891, § 93.

If the Governor’s powers Appellees say are implied in §§ 27 and 28

and the other three sections they cite are superior to the General Assembly’s

plenary powers and the express powers of § 93, what purpose is left to ascribe to

that section? The question is rhetorical; we all know the answer. The sections

Appellees cite, even together, do not neuter the plenary power of the General

Assembly much less its express power granted in § 93.

So, how is it possible then that the Brown Court got these

constitutional principles so wrong? We need only look at the opinions upon which

Brown hinges—Pratt 1 and Sibert—and that starts with Judge DuRelle.

19. George DuRelle—“by nature a political animal”93

From adoption of the 1850 Constitution until well after Sibert v.

Garrett was rendered in 1922, judges of the Court of Appeals were elected on a

partisan basis. Becoming a judge on Kentucky’s highest court required nomination

93 1 BENJAMIN JOWETT, TRANS., THE POLITICS OF ARISTOTLE 4 (1885) (Politics, I.2, 1253a 9) (Discussing the growth of the state, Aristotle said, “to be self-sufficing is the end and the best. Hence it is evident that the state is a creation of nature, and that man is by nature a political animal.”).

-170- and support by a candidate’s political party. George DuRelle was a partisan and

well credentialed for such an effort.

A New Yorker by birth, DuRelle’s ancestry included a colonial

governor and an attorney general of Connecticut. 2 E. POLK JOHNSON, A HISTORY

OF KENTUCKY AND KENTUCKIANS 863 (1912) [hereinafter KENTUCKIANS].

Educated largely in New England prep schools and at Yale, DuRelle also attended

the Louisville law school and began practice in the mid-1870s with Robert W.

Woolley. Woolley, once a candidate for Kentucky attorney general, withdrew

from state politics when Congress confirmed his nomination as Secretary to the

American Legation at Madrid. Id.; LOUISVILLE DAILY COURIER (Louisville), Dec.

24, 1858, at 2; EVENING STAR (Washington, DC), Dec. 27, 1858, at 2. DuRelle left

Woolley’s practice in 1882 for his own government service.

In 1882, President Chester A. Arthur nominated DuRelle as assistant

district attorney for the western district of Kentucky and Congress confirmed him.

2 KENTUCKIANS 863. He resigned in 1886 when his boss, George Thomas, was

elected to Congress on the Republican ticket. Id.; DAILY EVENING BULLETIN

(Maysville, Ky.), Sep. 16, 1886, at 3; Biographical Directory of the U.S. Congress,

George M. Thomas: https://bioguide.congress.gov/search/bio/T000167.

Re-nominated in 1889 by President Benjamin Harrison and again

confirmed by Congress, DuRelle resumed the assistant district attorney position

-171- under the new United States Attorney, George Jolly. 2 KENTUCKIANS 863;

HOPKINSVILLE KENTUCKIAN (Hopkinsville, Ky.), Apr. 16, 1889, at 3. But DuRelle

resigned again when he received appointments as Special Master for the federal

courts. 2 KENTUCKIANS 863; Central Tr. Co. v. Richmond, N., I. & B.R. Co., 68 F.

90, 104 (6th Cir. 1895) (noting DuRelle’s service as Special Master).

DuRelle made a name for himself, especially as Congressman

Thomas’s assistant prosecutor at the U.S. Attorney’s office. In 1894, he was

touted as a possible Republican candidate for Kentucky Attorney General.

EVENING BULLETIN (Maysville, Ky.), Nov. 20, 1892, at 3. But he was pre-

occupied that autumn representing the Republican candidate for the Court of

Appeals, St. John Boyle, in contesting the election of Louisville’s circuit judge,

Democrat Sterling Toney. 2 KENTUCKIANS 863; HARTFORD HERALD (Hartford,

Ky.), Feb. 27, 1895, at 3. Toney succeeded in his appeal to the State Contest

Board, “but under such circumstances that he declined the seat.” 2 KENTUCKIANS

863. Democratic Governor John Y. Brown appointed attorney George Eastin to

fill the vacancy until a special election in November 1895; Eastin then ran as the

Democratic candidate for the balance of the term. Id. “DuRelle, whose conduct of

the contested election case had won him distinction, was made the candidate of the

Republican party . . . .” Id.

-172- The day after the state elections, the pundits were shocked. “Oh, Ye

Gods!” the headlines read, “Has the State of Kentucky joined the Republican

Ranks?” KENTUCKY POST (Covington, Ky.), Nov. 6, 1895, at 1. DuRelle was

elected to the Court in a low turnout, Republican wave, including election of the

state’s first Republican Governor. Id. But the Republican surge in Kentucky was

short-lived, at least for DuRelle. He was defeated for re-election in 1902, having

served only a partial term on the Court.

A few weeks after his defeat, DuRelle was “already letting [his]

aspirations be known” to become Governor in 1903. HOPKINSVILLE KENTUCKIAN

(Hopkinsville, Ky.), Dec. 9, 1902, at 5. But he soon reset his sights. In late

January 1903, with Senator William DeBoe’s94 endorsement, DuRelle met with

President Theodore Roosevelt at the White House to be considered for a lifetime

appointment to the Sixth Circuit Court of Appeals. PADUCAH SUN (Paducah, Ky.),

Jan. 29, 1903, at 2; HARTFORD REPUBLICAN (Hartford, Ky.), Feb. 20, 1903, at 2.

DuRelle neither ran for Governor nor was he appointed to the federal bench.

However, he was selected that year as chairman of the Republican Campaign

Committee for the state. INTERIOR JOURNAL (Stanford, Ky.), Aug. 14, 1903, at 3.

94 William J. DeBoe (1849-1927), served the Kentucky Senate (1893-1898); elected as a Republican to the United States Senate in 1897 and served from April 29, 1897, to March 3, 1903; was not a candidate for renomination in 1902. Biographical Directory of the U.S. Congress, William Joseph DeBoe: https://bioguide.congress.gov/search/bio/D000182.

-173- In late 1904, DuRelle again visited the White House. He and

Kentucky Republican Party Chair R. P. Ernst “outlined to the President their views

of how to proceed in the work of converting Kentucky into a Republican State.

The President was very much interested, and told them to go ahead and keep up

their efforts.” KENTUCKY POST (Covington, Ky.), Dec. 16, 1904, at 1. Part of that

plan was DuRelle’s invitation to Justice John Marshall Harlan, the Great Dissenter,

that if he “wants the Republican nomination for Governor of Kentucky he can get

it without a struggle and be elected beyond a doubt.” INTERIOR JOURNAL

(Stanford, Ky.), June 16, 1905, at 3. History shows us Harlan declined.

By 1906, DuRelle was labeled by the newspapers one of the “machine

Republicans.” KENTUCKY POST (Covington, Ky.), Mar. 10, 1906, at 2. He was

confirmed that year as United States Attorney for the Western District of

Kentucky, called by his party “a deserving Republican.” HARTFORD REPUBLICAN

(Hartford, Ky.), June 15, 1906, at 5. In 1908, he represented Republicans to

challenge the Democrat-dominated General Assembly’s “gerrymandering” of

federal legislative districts, taking the case all the way to the Supreme Court of the

United States. FRANKFORT ROUNDABOUT (Frankfort, Ky.), June 30, 1906, at 5;

Richardson v. McChesney, 108 S.W. 322, 322-23 (Ky. 1908); Richardson v.

McChesney, 218 U.S. 487, 490, 31 S. Ct. 43, 43, 54 L. Ed. 1121 (1910).

-174- In 1908 he was a featured speaker at the Kentucky Republican

Presidential Convention in Louisville. DAILY PUBLIC LEDGER (Maysville, Ky.),

May 8, 1908, at 4. DuRelle was in Washington again in 1911 to meet with the

President, this time with William Howard Taft, to secure his reappointment as

district attorney. THE CITIZEN (Berea, Ky.), Jan. 26, 1911, at 2. After that

meeting, Senator Bradley,95 who had been advocating another candidate,

“gracefully yielded to the personal wishes of the President in the matter and agreed

to assist in having Judge Durells [sic] appointment confirmed.” THE CENTRAL

RECORD (Lancaster, Ky.), Feb. 24, 1911, at 3. DuRelle served as United States

Attorney for the Western District until Woodrow Wilson became President;

Wilson refused to reappoint DuRelle. BEE (Earlington, Ky.), June 16, 1914, at 2.

But DuRelle remained a popular influence in the Republican Party.

There was a “movement on foot to get Judge George DuRelle of

Louisville to become a candidate for the Republican nomination for Governor” in

1915. PUBLIC LEDGER (Maysville, Ky.), Feb. 4, 1915, at 3. He was supposed to

run for Congress in 1916 “but his defeat for the same office a few years ago made

him gun-shy.” KENTUCKY IRISH AMERICAN (Louisville, Ky.), July 1, 1916, at 2.

95 William O’Connell Bradley (1847–1914), was appointed Minister to Korea in 1889 but declined; member of the Republican National Committee 1890-1896; Republican Governor of Kentucky 1895-1899; elected as a Republican to the United States Senate and served from March 4, 1909, until his death in Washington, D.C., May 23, 1914. Biographical Directory of the U.S. Congress, William O’Connell Bradley: https://bioguide.congress.gov/search/bio/B000749.

-175- George DuRelle finished his career in private practice and as a

bankruptcy referee, although his name was occasionally thrown into the mix for

appointments to political or government office. HARTFORD HERALD (Hartford,

Ky.), Mar. 16, 1921, at 3. He practiced law nearly till the end of his life and died

at home at age 73. KENTUCKY POST (Covington, Ky.), Aug. 27, 1923, at 1;

CINCINNATI POST (Cincinnati, Oh.), Aug. 10, 1926, at 9.

I do not measure Judge DuRelle’s legacy by any good he did for the

Republican Party. His legacy, in my opinion, is not a good one. He infected our

constitutional jurisprudence with bad law by his partisan influence during his

single partial term on the Court of Appeals.

20. Commissioners of the Sinking Fund v. George—the backstory

Judge DuRelle did not know the Republican wave that put him and

Governor William Bradley in office would spawn ominous events. Nor could he

know the tall tale about Thomas Jefferson in his theretofore inconsequential

Sinking Fund v. George dissent would be his entrée to abuse judicial power to

solve a political problem his party faced. But it would.

Daniel Webster said, “[I]t is the evil genius of Democracy to be the

sport of factions.” Myers v. United States, 272 U.S. 52, 149, 47 S. Ct. 21, 36, 71

L.Ed. 160 (1926) (quoting 1 Private Correspondence of Daniel Webster (Fletcher

Webster Ed.) 486 (1903 National Ed., Little Brown Co.)). When DuRelle was

-176- elected, the Kentucky factions were in a heightened state of tension. The wave of

1895 filled the Executive Department with Republicans and added their numbers to

the General Assembly, but that body was still controlled by the Democrats. That

was the state of affairs when a case came before the Court that would decide which

political party holds the keys to one of the state’s great coffers—The Kentucky

Sinking Fund.

The Sinking Fund, created in 1836, consisted of monies collected

from specified taxes and dividends, and was to be used in discharging the state’s

existing debt. The Fund grew steadily until the 1870s when it exceeded the state’s

deficit by a million-and-a-third dollars. Following the Civil War, the practice

developed of the General Assembly borrowing money from the Sinking Fund to

fund the state’s budget. DECADES 51 n.32 (citing 1 LEWIS COLLINS, HISTORY OF

KENTUCKY 40 (1874) and 2 WILLIAM E. CONNELLEY AND E. MERTON COULTER,

HISTORY OF KENTUCKY 836 (Charles Kerr, ed., 1922) (hereinafter KENTUCKY)).

Until 1895, the borrowing was effortless because the same party was in charge of

both sides of the transaction. But borrowing excesses led to a deficit three times

what it had been, establishing a “a fool’s paradise financially, even though several

previous governors had sugar coated reports concerning conditions, as [Governor]

Bradley had charged.” DECADES 173.

-177- When the Republican Party won the governorship in 1895, it meant

the Sinking Fund would be run by Republican Commissioners and chaired by a

Republican Governor who appointed them. Governor Bradley had promised fiscal

reform, and reform in the penitentiary system. Id. at 234, 355. Both now seemed

possible because the Sinking Fund Commissioners appointed the penitentiary

officials. “The Republicans had charge of the penitentiary at Frankfort two years

and four months” before the General Assembly wrested control back. EVENING

BULLETIN (Maysville, Ky.), Oct. 5, 1898, at 3. And here is how that happened.

On March 5, 1898, the Kentucky General Assembly passed “An act to

create a board of penitentiary commissioners and regulate the penal institutions of

this commonwealth.” Board of Penitentiary Comm’rs v. Spencer, 166 S.W. 1017,

1020 (Ky. 1914). Members of that board were “elected by the general assembly on

or before the 10th day of March, 1898” and the General Assembly elected three

Democrats. George, 47 S.W. at 779. That is, the new law removed the statutorily

granted appointment power from the Sinking Fund Commissioners (who

themselves were appointed by the Governor) and the General Assembly itself

elected the Board of Penitentiary Commissioners. Because the new penitentiary

board and penal institutions were still to be funded from the Sinking Fund, its

Republican commissioners immediately challenged the law’s constitutionality on

-178- the same grounds that succeeded in the circuit court in this case currently under

review. Id.; BRECKENRIDGE NEWS (Cloverport, Ky.), Mar. 16, 1898, at 1.

The Board of the Sinking Fund Commission “contended that the

legislature could not constitutionally pass the act and elect the commissioners; that

the election of the commissioners is an executive, not a legislative, function.” Id.

It was a spurious argument from the start for it ignored the source of the

Governor’s authority to act as the Board’s presiding officer. From the day of the

Board’s creation, the General Assembly “elected” the Governor to head that Board.

Commissioners of Sinking Fund v. Theobald, 56 Ky. 459, 467 (1856) (“In

February, 1836, the legislature of Kentucky created and established a sinking fund

. . . (Sess. Acts, 1835-36, p. 415.) By the same act the governor of the State and

the presidents of three banks then existing were made the commissioners of the

sinking fund . . . .”); see, e.g., 1845 Ky. Acts ch. 263, § 3 (electing “the Governor,

as President of the Board of Commissioners of the Sinking Fund”).

The majority opinion in George did not need to point out this obvious

irony. Disciplined in its analysis, the majority of the Court of Appeals simply held

true to all the rules of constitutional interpretation.

Consistently with the 1830 decision in Taylor v. Commonwealth, the

Court held that the People, by its organic law, can and did empower the General

Assembly with that executive power to appoint inferior officers. The opinion also

-179- said again the Governor’s powers are limited “‘to those the Constitution expressly

gives him,’” Cameron, 628 S.W.3d at 73 (citations omitted), and found “[t]here is

no express power conferred upon the executive department by the constitution to

appoint such officers or agents which the general assembly may designate for the

direction or control of the penitentiaries.” George, 47 S.W. at 779.

Obedient to the rule that “[t]he Legislature has all power, unless

restricted by the Constitution[,]” Rhea, 156 S.W. at 158; Cheaney v. Hooser, 48

Ky. 330, 333 (1849), the Court then said: “There is no provision of the

constitution which places any limitation on the power of the legislative department

to name or select the officers or agents necessary to properly manage the penal

institutions.” Id. at 780 (citing Cheaney).

Finally, the Court held the Constitution’s fundamental general

provisions do not imply a restriction on the General Assembly’s plenary powers:

Neither is there any provision of the constitution from which it can be fairly implied that the legislative department shall not elect or select those who may aid or control in the conduct of the affairs of the penal institutions. When the constitution has imposed no limits upon the legislative power, it must be considered practically absolute. Plenary power in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is the exception. When one questions the legislative power to pass a statute, he should show that the constitution expressly prohibits its enactment, or that such prohibition is fairly implied from its provisions.

-180- George, 47 S.W. at 779–80 (citing Slack, 52 Ky. at 12 (General Assembly “may do

everything which can be effected by means of a law.”)). The majority’s reliance

on Slack, tellingly shows a consistency in our constitutional jurisprudence that § 27

and § 28 and its antecedents were not a source either of an implied gubernatorial

power or an implied restriction on the General Assembly’s plenary powers.

One of the arguments in Slack was the same as argued in George and

now argued in this case—that without express authority, the General Assembly is

powerless to exercise any power not intrinsically legislative. That was and is a

fallacious argument that both Slack (under the second and third constitutions) and

George (under the current Constitution) rejected.

In Slack, the constitutional attack was that “[a]n act of the legislature

[permitting municipalities upon a majority vote of its citizens to purchase stock in

a railroad] . . . is in conflict with both the constitutions of 1799 and 1850, secs. 1,

2, art. 1 [what is now § 27 and § 28, because i]t is not a legislative act . . . .” Slack,

52 Ky. at 40 (Hise, J., dissenting (stating appellants’ argument)). The majority

rejected the argument after first noting “[t]he general principles and provisions of

the two instruments [the 1792 Constitution and the 1850 Constitution], so far as

they bear upon this subject [of the separation of powers], are substantially the

same.” Id. at 10. See Section 9, supra, (quoting Slack). The majority rejected the

idea that the General Assembly was restricted by “the fundamental law” of the

-181- separation of powers, holding instead that the General Assembly, “by its own

wisdom and its own responsibilities, may regulate the conduct and command the

resources of all, for the safety, convenience and happiness of all, to be promoted in

such manner as its own discretion may determine.” Id. at 22.

The majority opinion in George said the same. Citing §§ 27 and 28,

the Court noted that “[i]t is these sections upon which counsel for the appellees

rely to show that the selection of the board of commissioners is an executive

function.” George, 47 S.W. at 781. The Court rejected the argument, saying,

“These sections do not indicate a purpose upon the part of the framers of the

constitution to limit the power of the legislature in the matter of selecting or

electing officers or agents to carry out its will.” Id.

That is, the General Assembly was not impliedly prohibited from

itself appointing prison board commissioners by the separation of powers

provisions, § 27 and § 28.

The majority opinion in George enjoyed the support of all four

Democrat judges and one Republican, Judge Guffy.96 EVENING BULLETIN

96 The Court’s Democrats were Chief Justice Joseph H. Lewis, Thomas H. Paynter who authored the majority opinion, James H. Hazelrigg, and James D. White. The Republicans were George DuRelle, Bayless L. D. Guffy (1833-1910), and Anthony R. Burnam (1846-1919).

Joseph Horace Lewis (1824-1904) was a member of the Kentucky House of Representatives (1850-1855, 1869-1870); elected as a Democrat to Congress and served from May 10, 1870, to March 3, 1873; he was not a candidate for renomination in 1872; elected judge of the Kentucky

-182- (Frankfort, Ky.), June 24, 1898, at 3. Two Republican judges wanted the

Republican Governor in control and dissented. Because the law was against him,

Court of Appeals in 1874 and served until 1898. Biographical Directory of the U.S. Congress, Joseph Horace Lewis: https://bioguide.congress.gov/search/bio/L000289.

Thomas Hanson Paynter (1851-1921), Democrat, was elected to the House of Representatives for the 51st through 53rd Congresses and served from March 4, 1889, until his resignation, effective January 5, 1895, having been elected to the Kentucky Court of Appeals where he served from 1895–1906. He resigned, when he was elected to the United States Senate where he served from March 4, 1907, to March 3, 1913; he did not seek reelection in 1912. Biographical Directory of the U.S. Congress, Thomas Hanson Paynter: https://bioguide.congress.gov/search/bio/P000156

James Hervey Hazelrigg (1848-1924) “belongs to that political party whose leaders find extreme gratification in referring to Judge Hazelrigg’s section of the United States as the ‘Solid South,’ and he has always lent its measures and its representatives his most effective support.” 3 HISTORY 1279. He served as Mt. Sterling City Attorney (1873-1881), Montgomery County Judge (1881- 1886). He served on the Court of Appeals (1893-1900) and as its Chief Justice (1899-1900).

Less accomplished than his colleagues, “James D. White [(1833-1915)] has ever been an ardent Democrat, and in 1880 was chosen a presidential elector . . . . [A]ctive in politics, regarding it the duty as well as the privilege of the citizen to express his preference,” White served as a common pleas judge in Blandville, Kentucky, from 1870 to 1879. In the fall of 1896, he was elected to serve an unexpired term on the Court of Appeals, but he did not run for re-election in 1902. THE COURIER-JOURNAL (Louisville, KY), Feb. 6, 1915; H. LEVIN, ED., THE LAWYERS AND LAWMAKERS OF KENTUCKY 60-61 (1897).

Bayless Leander Durant Guffy (1832-1910) was elected Butler County Judge (1862, re-elected 1866, 1878, 1882); elector on the Grant and Colfax ticket (1868); ran unsuccessfully for Congress (1876); unsuccessful candidate for attorney general (1891); elected to Court of Appeals (1895- 1903); served as Chief Justice (1902-1903). BRECKENRIDGE NEWS (Cloverdale, Ky.), Mar. 2, 1910, at 1.

Anthony Rollins Burnam (1846-1919) was appointed Collector of Internal Revenue by President Benjamin Harrison (1889-1893); elected Judge of the Court of Appeals (1897-1905) but did not seek re-election; served as Chief Justice (1903-1905); elected to Kentucky Senate as unopposed Republican (1907); longtime member of the Republican National Committee for Kentucky and delegate to the nominating conventions of President Hayes (Cincinnati 1876), President McKinley (St. Louis 1896) and President Taft (Chicago 1908). RICHMOND DAILY REGISTER (Richmond, Ky.), Sep. 27, 1919, at 1 (report of open court in memoriam services and resolution honoring Judge Anthony R. Burnam); NEW YORK TRIBUNE (New York, N.Y.), Sep. 10, 1919, at 6.

-183- Judge DuRelle took the fabled approach. This is where DuRelle fabricated the

story of Jefferson’s authorship of §§ 27 and 28, discussed in Section 16, supra.

Not unlike a waving of the “bloody shirt,” DuRelle probably warmed

some passions with his Jeffersonian myth in a dissent he said was “a bare outline

of my views upon the subject, and the reasons which have led me to the conclusion

reached, without any elaboration of argument or citation of authority.” George, 47

S.W. at 784 (DuRelle, J., dissenting) (emphasis added). It was good of him to

admit the conclusions he reached were only partially illuminated by thought or

research. Skipping those essential parts of judicial analysis and relying on Founder

idolatry was the only way to reach his unsupportable conclusion that “it was

deemed necessary by the framers of the constitution to expressly direct and permit

the legislature to exercise the power of appointment to office in a specified case,

and this by necessary implication forbids the exercise of such power in all other

cases.” Id. at 787. Beyond false, it is an ignorant suggestion that, like the other

two branches, the Legislative Department has no plenary authority but may only

exercise such authority as is expressly granted. Like DuRelle’s storytelling, this,

too, is false.

DuRelle’s dissent in George might have gone unnoticed as a one-off

musing, never to be repeated again, “a bare outline of [his] views” as DuRelle

-184- himself called it. But DuRelle would find it useful again one day, when assessing

the constitutionality of even more divisive legislation, the Goebel Election Law.

21. The Goebel Election Law

On March 11, 1898, six days after passage of the board of

penitentiaries act adjudicated in George, an even more divisive bit of legislation

became law. Known as the Goebel Election Law, KS 1596a (1898), it was the

brainchild of Senator William Goebel. Many lawmakers and journalists “believed

it was coldly thought out and designed . . . to make Goebel governor, regardless of

the wishes of the people.” DECADES 370. Our State Historian tells us it is

inescapable that “the bill’s chief aim was to keep the Democracy [i.e., Democratic

Party] supreme.” JAMES C. KLOTTER, WILLIAM GOEBEL: THE POLITICS OF WRATH

58 (1977) [hereinafter WRATH].

The law created a Board of Electoral Commissioners of three

members to be appointed by the General Assembly; nothing prohibited appointing

three commissioners of the same party. Three Democrats were appointed.97 The

97 The inaugural three members were:

William S. Pryor (1825-1914), served as circuit judge from Henry County (1866-1871); Court of Appeals Judge (1871-1896); and Chief Justice (1871-1872, 1878-1880, 1886-1888, 1895-1896). 3 HISTORY 1648-50.

William T. Ellis (1845-1825) was a Harvard Law School graduate (1870); served as Daviess County Attorney (1870-1878); served in the United States House of Representatives (1889-1895); delegate to the Democratic National Convention (1896, Chicago, Ill.). Biographical Directory of the U.S. Congress, William Thomas Ellis: https://bioguide.congress.gov/search/bio/E000139.

-185- law empowered that Board to then appoint three commissioners in each county to

serve on its own local election contest board who, in turn, were to appoint all

subordinate election officers, poll watchers, etc., for their respective counties. The

law did not prevent appointing each and every one of those officials from the same

political party. The state commission could remove members of county boards any

time without the need to show cause and fill the vacancy. DECADES 370–71; KS

1596a (1898). The responsibilities of these state and county boards included

counting votes, disqualifying votes deemed inconsistent with law, and issuing

certificates of election. Once the certificates were issued, the ballots were

destroyed and going behind the decision was not allowed. Id. at 371.

The bill was hotly debated. Republicans naturally opposed the bill but

some of its most ardent opponents were Democrats. PADUCAH DAILY SUN

(Paducah, Ky.), Feb. 12, 1898, at 3 (“six Democratic senators . . . had the

manliness, independence and honor to vote against the measure”). Nevertheless,

enough “Goebel” Democrats were persuaded to pass the bill and it was sent to the

Governor’s desk where it was promptly vetoed and almost immediately repassed in

the legislature where, in those days, a bare majority sufficed.

Charles B. Poyntz (1853-1924) served on the Maysville City Council (1886-1888); was a delegate to the Democratic National Convention (1888, St. Louis, Mo.); Railroad Commissioner (1892- 1895) EVENING BULLETIN (Maysville, Ky.), Nov. 27, 1886, at 4; June 12, 1889, at 4; May 9, 1892; OWENSBORO MESSENGER (Owensboro, Ky.), Dec. 25, 1924, at 5.

-186- The Louisville newspapers also wrote stinging editorials against the

bill’s passage. DECADES 371–73. Henry Watterson of the pro-Democrat COURIER-

JOURNAL wrote, “The people’s wrath and outrage will give those responsible for

‘this monstrous usurpation of power’ their just reward . . . .” Id. at 372 (quoting

COURIER-JOURNAL (Louisville, Ky.), Feb. 25, 1898). Once the legislative session

ended, the editor of another pro-Democrat Louisville newspaper with an even

greater circulation, Richard Knott of the Evening Post, wrote:

There are indications already that the gentlemen responsible for the Goebel force bill are becoming alarmed at the popular revolt against them and their machine. The people of Kentucky are wide awake . . . suspicious of the men who have been dominant at Frankfort, and more intolerant than ever of the scheme to overthrow popular institutions.

Id. at 372–73 (quoting EVENING POST (Louisville, Ky.), Mar. 15, 1898). In fact,

pro-Democrat newspapers all across the Commonwealth were against it.98

98 The Paris, Kentucky newspaper reported its poll of newspapers as follows:

Among the Democratic papers arrayed against the Goebel bill are the Louisville Courier-Journal, Post, Critic, and Times, Woodford Sun, Winchester Democrat, Stanford Journal, Georgetown Times, Danville Advocate, Owenton Herald, Anderson News, Middlesboro Herald, Harrodsburg Democrat, Owensboro Inquirer, Owingsville Outlook, Flemingsburg Times-Democrat, Smith’s Grove Gazette, Madisonville Hustler, Mayfield Index, Carrollton Democrat, Cynthiana Times, Murray Times, Lexington Herald, Argonaut and Observer, Fulton Democrat, Livingston Colonel, Mt. Sterling Advocate, Graves County Index, Hawesville Plaindealer and Scottsville Reflector.

THE BOURBON NEWS (Paris, Ky.), Mar. 4, 1898, at 5.

-187- Freedom of the press and the right to vote—or rather the incumbents’

fear of being voted out—would be the cure eventually. The incumbents’

immediate fears were justified by the voters’ reactions. For example, “Five

hundred Democrats of Owen County assembled in mass convention at Owenton,

and with only ten opposing votes adopted resolutions denouncing the Goebel

Election bill, and indorsing Representative Orr and Senator Brown for opposing

it.” DAILY PUBLIC LEDGER (Maysville, Ky.), Mar. 3, 1898, at 5.

The curative political pressures of a free press and suffrage inherent in

a republican form of government is what the Court of Appeals had in mind when it

spoke of the General Assembly’s “own wisdom and its own responsibilities” as a

guard against bad laws. Slack, 52 Ky. at 22. The Goebel Election Law was of the

species of laws the Court hoped against. That very law may also have been in the

Court’s collective thoughts when, just a few years later, it said:

The protection against the unwise or oppressive legislation within constitutional bounds is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil, but courts cannot assume their rights.

Hager v. Robinson, 157 S.W. 1138, 1142 (Ky. 1913).

The pressures on legislators to be re-elected would eventually work.

On February 6, 1900, prominent members of both parties would get together to

discuss “[a] new, ‘absolutely fair’ election law [that] would replace the present

-188- one[.]” DECADES 451. But the new and fair law would not come soon enough to

prevent the need for the Court of Appeals to resolve lingering disputes.

22. Purnell v. Mann—following rules of constitutional interpretation

Because the General Assembly met only in even-numbered years, the

state had to survive two election seasons (1898 and 1899) before the deliberative

body could repeal the bad law it created. Less than eight months after its

enactment, and before the 1898 election, the law’s constitutionality was tested.

In Purnell v. Mann, individuals who would have been the Bourbon

County election officials under the prior law (judge of the county court (Purnell),

the county clerk, and the sheriff) claimed the Goebel Election Law was

unconstitutional and sought to enjoin the newly appointed officials from exercising

the authority that was previously theirs. 48 S.W. at 407. The circuit court found

the law constitutional and refused to enjoin the new commissioners.

On appeal, the Court showed its awareness of the political backlash

that dominated the citizenry’s reaction to Goebel’s law. Even ill-advised laws,

said the Court, “must be presumed . . . to have been enacted with knowledge of,

and under instructions by, the people; and, if not so, it is always subject to repeal,

which is the natural and safest process by which, in a government like ours, to get

rid of an objectionable statute.” Id. at 408. Still, the Court would “not shrink”

-189- from pronouncing the law invalid if applying the cardinal rules for testing the

statute showed it to be inconsistent with the Constitution’s provisions. Id.

The Court first considered the limitation § 28 placed on its power of

constitutional review. It concluded that going beyond the “salutary and inflexible

rules, universally recognized in this country” for determining constitutionality

would constitute the Court’s own violation of the separation of powers. Id. The

Court asked under what circumstances would it “be justly chargeable with

wandering from the appropriate sphere of the judiciary department”? Id. The

answer was at its fingertips, in the Kentucky Reporter from sixty years earlier, and

the Court found it worth repeating. The Court would violate § 28 “‘were we, by

subtle elaboration of abstract principles and metaphysical doubts and difficulties,

to endeavor to show that such a power may be questionable, and on such unstable

and unjudicial grounds to defy and overrule the public will clearly announced by

the legislative organ.’” Id. (quoting City of Louisville v. Hyatt, 41 Ky. 177, 178

(1841)).

The Court reiterated that principle in parlance of its own and of its

own time, saying:

[T]he judiciary cannot pronounce a statute unconstitutional and void because it may, in the opinion of the court, be impolitic, unjust, or oppressive, or because it appears to violate what might be deemed fundamental principles, or what are called the “genius and spirit of our institutions.” The true and only test of the validity of a

-190- statute which the court can properly apply is whether it be in express terms or by clear implication forbidden by the constitution, and, if there be a doubt on the subject, it is the duty of the court to resolve it in favor of the validity of such statute. For the judiciary to apply any other test would be for the judiciary itself to become pro tanto lawmaker.

The Court then quoted Kentucky jurisprudence from 35 years earlier

that received the approbation of the Supreme Court of the United States

“Whenever a jurist inquires whether a state statute is consistent with the state

constitution, he looks into that constitution, not for a grant, but only for some

limitation of the power inherent in the people’s legislative organ, so far as not

forbidden by their organic law.” Id. at 408 (quoting Griswold v. Hepburn, 63 Ky.

20, 24 (1865), aff’d, 75 U.S. 603, 19 L. Ed. 513 (1869)).

Applying these rules to the Goebel Election Law, the Court first

considered the appellants’ claim—not relevant to our review in this case—that it

violated § 51 and its antecedent, CONST. OF KY. of 1850, art. II, sec. 37. These

provisions require each statute to address one topic, and that the topic be expressly

stated in its title. The Court found no violation of § 51, concluding, “Manifestly,

neither members of the general assembly nor the people could misunderstand or be

deceived as to the purview, purport, or effect of the act.” Id. at 409.

-191- Then the analysis moved on to an issue and an argument directly

implicated in the instant appeal. That is, the charge that the law was a usurpation

by the Legislative Department of a power solely to be exercised by the Executive

Department—in Purnell, that was the legislature’s appointment of the election

commissioners. The Court rejected that argument by simply respecting the

doctrine of stare decisis and following the reasoning of an opinion that had nothing

to do with election laws, but everything to do with assessing the constitutionality

of statutes—George.

Whether election by the general assembly of the state board of elections, and appointment by it of the county board, provided for in the act, involve exercise of power by the legislative department properly belonging to the executive department, and are consequently forbidden by section 28 of the constitution, is a question to some extent considered in the case of Commissioners [of the Sinking Fund] v. George (decided at the last term of this court) 47 S.W. 779.

Id. at 410.

Accounting for the fact that George was not about election laws

simply strengthened the argument for the law’s constitutionality. The Constitution

itself provided that strength. Said the Court:

Section 153 of the constitution is as follows: “Except as otherwise herein expressly provided, the general assembly shall have power to provide by general law for the manner of voting, for ascertaining the result of elections and making certificates or commissions to persons entitled thereto and for trial of contested elections.” As plenary

-192- power over the subject of elections is thereby given, it at least is a fair inference, in the absence of any provision forbidding, that exercise of power by the general assembly in the manner provided by the act in question is permitted.

Id. Then, of course, there was § 93 and, finally, § 107 that authorized the General

Assembly to “provide for the election or appointment . . . of such other county or

district ministerial or executive officers as may from time to time be necessary.”

Id. Given these express powers and the absence of any express restrictions, the

Court held it was “not justified in deciding [the constitutional grant of power to the

General Assembly] has been exceeded or improperly exercised by election of the

state board and appointment by it of the county board as provided by the act.” Id.

After consideration of the details of the law under review, the Court

summarized its conclusion:

We are unable to perceive that the act in question is forbidden in express terms or by clear implication of the constitution. Nor does it have effect to hinder operation or enforcement of any part of the general election law, except such parts thereof, plainly indicated and easily understood, as are inconsistent with and repealed by it. Whether legislative power has, as argued, been exercised in an unwise, improvident, or dangerous manner, is not for this court to decide; our power being restricted to the single inquiry whether the constitution has been violated. The people alone, through the legislature, must determine as to justice and policy of the statute.

-193- The majority opinion was rendered on December 10, 1898. The

judges split along party lines, the four Democrats in the majority following George

and the cardinal rules for measuring the constitutionality of statutes. The two

Republicans who dissented in George, dissented again in Purnell but, this time

Judge Guffy, who was with the majority in George, flipped to join the dissent of

his fellow Republicans. And, just as § 153 and § 107 strengthened the validity of

the election law, it reciprocally weakened the reasoning of DuRelle’s dissent in

George. But that did not stop him from dissenting anyway.

23. DuRelle’s Purnell dissent—a Sinking Fund v. George redux

Before DuRelle got around to writing his dissent, Judge Guffy appears

to have felt a need to explain his flip-flop from George. On February 4, 1899,

almost two months after the majority opinion was rendered, Guffy issued his

dissent in Purnell. He took a shotgun approach.

He said the statute violated no less than seven separate constitutional

sections, listed here in the order he discusses them: § 51, § 6, § 161, § 28, § 135, §

107, and even § 93. Purnell v. Mann, 49 S.W. 346, 346–48 (1899) (Guffy, J.,

dissenting) (because rendered later, given its own West Reporter citation). He also

believed the majority’s construction of § 153 violated § 2 and § 4. Id. at 349.

-194- As for § 28, Guffy said nothing more than, “It seems to me that the

election of state commissioners provided for is an exercise of executive authority.”

Id. at 348. That was it—no elaboration.

He also claimed the law violated § 93 because he believed election

commissioners “are in no sense inferior officers, and cannot be so treated or

recognized.” Id. That was it, again—no elaboration.

As for the remaining constitutional provisions he believed the law

violated, I leave it to others to read and decide for themselves afterwards whether

the effort was worth it. I did read them and concluded, for myself, it was not.

Nearly another two months would pass before Judge DuRelle

rendered his own dissent. Like Judge Guffy’s dissent, being remote in time from

the majority opinion, it was given its own separate citation in the West Reporter.

Purnell v. Mann, 50 S.W. 264 (Ky. 1899) (DuRelle, J., dissenting). Perhaps that is

why Appellees mistakenly cite it as though it is a majority opinion and, therefore,

law. (Appellees’ brief, p. 11).99 It is not.

DuRelle gets right to his point with an emotional criticism “that the

act was inherently vicious, as an invasion by the legislature of the powers of the

99 Appellees cite the case only for the proposition that the 1890 convention was called to rein in the General Assembly, a proposition I adamantly challenge in Sections 4 and 5, supra. If it were true, and if that was the outcome (the only position that advances Appellees’ argument), how do we explain passage of legislation like the Goebel Election Law?

-195- executive.” Id. That is, it violated the spirit of the separation of powers. To

support that position, DuRelle makes his Jefferson yarn a twice-told tale, adding a

new fact not in his first telling in George, and removing all doubt (from his own

mind at least) that the story is true. Id. This time he told us Kentucky’s separation

of powers “provision was drawn by Mr. Jefferson, with the provision of the federal

constitution before him[.]” Id. DuRelle must have forgotten the Federal

Constitution has no separation-of-powers provision at all. It would be hard for

Jefferson to have that non-existent provision in front of him. But with these

fallacies again as foundation material, he began his analysis.

He claims George runs counter to Taylor v. Commonwealth. But to

support that claim in his dissent, he misinterprets that case and the many other

cases following it as standing for something it did not—that the legislature cannot

appoint any non-legislative officer without an express grant in the Constitution. As

explained in Section 12, supra, Taylor v. Commonwealth was never interpreted in

such a way. It is also inconsistent with how that opinion was understood by

constitutional law authorities Cooley, Mecham, and Freeman who used it as an

example of a principle contrary to what DuRelle was selling. So, to further support

his contrarian view, DuRelle limits his citation of Kentucky authority to three

cases—Justices of Spencer Cnty. Court v. Harcourt, 43 Ky. 499 (1844), Gorham v.

Luckett, 45 Ky. 146 (1845), and Applegate v. Applegate, 61 Ky. 236 (1863).

-196- The first two opinions were decided before 1850 when the 1799

Constitution expressly empowered the Governor to make all appointments to office

except where it grants such power to another branch as in the last phrases of

CONST. OF KY. of 1799, art. III, sec. 9, empowering the County Courts to appoint

various county officers. DuRelle thus argues the intrinsically executive power of

appointment could be exercised by the judiciary only because of that express grant.

A neat trick, but why? There is more than one reason.

First, he failed to point out that, before 1850, the power of

appointment did not need to be “intrinsically” executive to be reserved to the

Governor; appointment power was expressly granted to the Governor in the 1799

constitution. CONST. OF KY. of 1799, art. III, § 9. And he failed to explain that the

appointment power of the county courts is in the Judicial Department article

(Article IV), it is part of that same § 9 of the Executive Department article and

operates as a limitation on the Governor’s appointment powers, just like article III,

§ 25 of the 1850 Constitution and § 93 of the current one.

Second, he also fails to recognize that if that § 9 of the Executive

Department article in 1799 had not vested such power in either the Executive

Department or the Judicial Department, it would have been a power exercisable by

the Legislative Department’s without an express grant because it would have been

within its plenary authority. All powers exercised by the judicial and executive

-197- branches must derive from an express constitutional grant, while the legislative

branch with implied plenary powers is presumed empowered unless one can point

to a constitutional prohibition. This dissent is peppered with cases showing

universal acceptance of this principle as a vital element of republicanism.

The third opinion DuRelle cites, Applegate, was decided after the

appointment powers of both the Executive Department and the Judicial

Department in CONST. OF KY. of 1799, art. III, sec 9, were removed by the 1850

Constitution and lodged with the Legislative Department by adopting an entirely

new section, § 93’s antecedent, CONST. OF KY. of 1850, art. III, § 25. Pursuant to

those powers, the General Assembly enacted a law, cited in Applegate as “Sec. 6,

chap. 91, 2 Stant. Rev. Stat. 340,” that said, “Every sheriff may, by and with the

approval of the county court, appoint his own deputy.” Applegate, 61 Ky. at 237.

In Applegate, a sheriff argued the power to appoint included the right

to approve the appointment and both were exclusive to him as an executive officer.

Id. at 236. He claimed the law cited above unconstitutionally authorized the

judiciary to exercise the executive power of approval. The Court disagreed.

“The right of approval,” said the Court, “conferred by law on the

court, appropriately belongs to the executive, and not the judicial power of the

court.” Id. DuRelle put a spin on this sentence never intended. He read that

sentence as saying the right of appointment approval “belongs to the executive”

-198- branch, but that is unquestionably not what the opinion says. If DuRelle’s reading

had been correct, the sheriff would have won his case. He did not.

Rather, that sentence says “[t]he appointing power, although vested in

a court, is executive and not judicial. [citation to Taylor v. Commonwealth

omitted]. The right of approval . . . belongs to the executive . . . power of the

court.” Id. (emphasis added). The right of the judiciary that Applegate addressed

did not derive from the current Constitution as it had under its 1799 iteration, but

pursuant to a law enacted by legislative authority granted in § 93’s antecedent,

CONST. OF KY. of 1850, art. III, § 25. The decision upheld the court’s (Judicial

Department’s) exercise of executive power of appointment approval against the

claim of the sheriff (Executive Department) that only he could wield the power to

approve his appointment of a deputy. The Court saw the law as the legal vesting of

an executive power in the judiciary by a statute enacted pursuant to the General

Assembly’s power derived from the Constitution. Applegate, 61 Ky. at 237 (“This

limitation on the power of the sheriff was doubtless conferred on the court the

better to protect the public interest of each county[.]”).

DuRelle’s reasoning cannot withstand scrutiny. Contrary to

DuRelle’s claim that George overruled Taylor v. Commonwealth, the exact

opposite is true. George followed the Taylor opinion.

-199- The heart of DuRelle’s dissent continued to be, as it was in George,

that judges should serve as the oracular spirit guides of republicanism. Beginning

with an assertion disprovable by the convention of 1849 if not also that of 1890,

DuRelle says “the spirit of each successive change in the organic law of the

commonwealth [has] been in the direction of more strictly limiting the legislative

power.” Id. at 266. That is simply not so.

DuRelle’s main objection was actually a political one. He particularly

objected that the law allowed appointment of commissioners who belong to one

party—the party in power.100 Still, he acknowledged no part of any constitution

considered party parity much less required it. He even admitted the issue was in

100 Despite my dissent’s length, it is far from a full treatment of the politics at work that greatly affected our jurisprudence. As explained in DECADES, the law did not pass because of Democrat control of the legislature, but rather because it was controlled by one faction of one party—the Goebel faction. DECADES 371. Professor Klotter quoted a journalist of the time who captured the foreboding of this bad law:

Wrote Edward A. Jonas, a Louisville reporter, “What Senator Goebel proposed was that elections be held by officers to be selected by a partisan county board, that board to be appointed by, and therefore to become the creature and the servant of, a partisan state board. This last,” he declared, “was to be named by one party in the Legislature and to be self-perpetuating. These canvass returns and decide contests. In practice, what this intended,” he asserted, “was that every election would be at the mercy, not of one party but of whatever faction of that party chanced to be on top. And so,” Jonas concluded, “he not only destroyed self-government but party government in the broader sense.”

DECADES 371 (footnote omitted).

-200- the hands of the General Assembly and that “no statute requiring officers of

election to be of different political parties was passed until 1858 . . . .” Id. at 269.

Absence of constitutional prohibition did not prevent him from calling

the law an “invasion of the right to free and equal elections guaranteed by section 6

of our bill of rights . . . .” Id. To resolve the heady, hazy question of when a law

offends § 6, he proposed a subjective analytical tool for courts to apply.

The judiciary could protect against invasion of the right to fair

elections, he claimed, by measuring every new election law by the previous one, an

assessment entirely dependent on the jurists’ sensibilities. Thus, “any statute

which is a distinct departure for the worse; which is less reasonable, uniform, and

impartial than the law before in force; which alters that law so as, and with the

purpose, directly or indirectly, to deny or abridge the constitutional right of citizens

to vote, or unnecessarily to impede its exercise,—is void[.]” Id. at 270. This

envisages judicial power never intended either by the Founders or by the authors of

our own Constitution. If we did not know then, we certainly know now that what a

party or faction or person perceives as a hindrance to free and fair elections, others

see as a protection. Applying the rules of constitutional construction requiring

challengers to point to concrete rather than abstract constitutional prohibitions is

what protects our jurisprudence from our judges’ own opinionations.

-201- When DuRelle authored his Purnell dissent, Republican Governor

Bradley was still in office. DuRelle noted that Bradley shared his lament not only

that the law allowed one-party dominance, but that § 107 empowered the

legislature to “elect all of the 350 county commissioners provided for in this law,

and every other appointive officer in the commonwealth.” Id. at 268. Quoting the

leader of his political party was irresistible and DuRelle included the Governor’s

nebulous objection in his dissent. “‘The exercise of such power would,’ as said by

the governor in his veto message, ‘destroy the very object for which the legislative

department was created.’” Id. Perhaps DuRelle perceived an unspoken invitation

to try and succeed where his Governor’s veto power fell short. But DuRelle

appears not to understand that Governor Bradley did not question the law’s

constitutionality; he questioned the abuse of power within the constitution’s

confines, correctible by his veto or, if it be overridden, by the People, either by

changing the law through urgings to their representatives, or by changing their

representatives at the polls.

Notwithstanding that the Court in Purnell voted along party lines, the

majority opinion was true to the precedent of Kentucky jurisprudence—

jurisprudence specifically followed by courts in almost all sister states. Judge

DuRelle’s reasonings, like his historical facts, were peculiarly his own.

-202- But this would not be the last time Judge DuRelle urged his facts and

his rationale. There was another election cycle yet to go. And the political

pressures only increased for all the decisionmakers involved.

24. 1899 election—the Goebel Election Law in operation

Despite contentious nominating conventions in both parties and a

heated general election contest between Democratic candidate William Goebel and

Republican candidate William S. Taylor, “election day [November 7, 1899] passed

quietly” all across the Commonwealth. DECADES 440. It would be the last

peaceful day for a while.

Purnell v. Mann had decided nearly a year prior to the 1899 general

election that the Goebel Election Law was constitutional and, in accordance with

that law, all the new commissioners were about to be put to work again. Slow

returns and a close race “meant that the Goebel-appointed Board of Electoral

Commissioners would have the power to decide the election.” Id. at 440–41.

Nearly a month passed from election day before the three-Democrat-

member Board of Electoral Commissioners convened on December 6, 1899, in the

Senate Chamber to canvass the statewide vote and to decide which candidates to

favor with a certificate of election. KENTUCKY POST (Covington, Ky.), Dec. 6,

1899, at 1. Three days after that, the Board surprised many when, in a 2-1 vote, it

granted certificates of election to the Republican candidate for Governor, William

-203- S. Taylor, and all the other Republican candidates down the ticket. KENTUCKY

POST (Covington, Ky.), Dec. 9, 1899, at 1.

The Board decided the elections on the face of the election returns

alone. The members concluded they “had no judicial powers in the governor’s

race and thus could not hear proof or swear witnesses. This only the legislature

could do.” DECADES 444; CONST. OF KY of 1891, § 90 (“Contested elections for

Governor and Lieutenant Governor shall be determined by both Houses of the

General Assembly, according to such regulations as may be established by law.”).

The raw vote showed Republicans won every race and the Board issued certificates

of election to each. The votes for governor were 193,714 for Taylor and 191,331

for Goebel with similar numbers favoring Republican John Marshall over

Democrat J. C. W. Beckham for Lieutenant Governor. Id.

On Tuesday, December 12, 1899, with his certificate of election in

hand, William Taylor was inaugurated Governor with Marshall as Lieutenant

Governor. But that was far from the end of the story. The General Assembly

would eventually decide the contests.

In accordance with statutes promulgated pursuant to § 90 of the

Constitution to decide the election of governor and lieutenant governor, separate

eleven-member, joint committees of the House and Senate would canvass votes,

receive evidence, entertain vote challenges, and make their reports to the General

-204- Assembly for action. A random selection process resulted in a joint committee to

decide the race for Governor comprised of ten Democrats and one Republican.101

DECADES 445 (footnotes omitted). For two weeks, from January 15 to January 29,

1900, the committees heard testimony and closing arguments to decide who would

be Governor, Lieutenant Governor, Attorney General, as well as some other

executive and legislative branch, and local offices. Id. at 445–47 (footnotes

omitted). “[T]he committee upheld all Democratic objections and overturned all

Republican ones.” DECADES 446 (footnotes omitted).

Contests over these challenges made their way before the Court of

Appeals, beginning right after Taylor was inaugurated Governor. They presented

the same argument Appellees make in this case. The first case challenged the

General Assembly’s power under § 93 to say how the state Board of Electoral

Commissioners were selected. Poyntz v. Shackelford, 54 S.W. 855 (Ky. 1900),

overruled by Pratt 1.

101 The separate committee to determine the race for Lieutenant Governor was similarly lopsided at 9 Democrats and 2 Republicans. DECADES 444–46. Republican accusations challenging the manner of selection went nowhere in a General Assembly dominated by the opposing party. CAMPAIGN 171–73. The claims of trickery in the selection were brought before the Court of Appeals and Supreme Court of the United States to no avail. Taylor v. Beckham, 56 S.W. 177, 183 (Ky. 1900); Taylor v. Beckham, 178 U.S. 548, 584, 20 S. Ct. 890, 903, 44 L. Ed. 1187 (1900) (Brewer, J., dissenting).

-205- 25. Poyntz v. Shackelford—another constitutional challenge

On December 15, 1899, three days after Taylor’s inauguration, the

two Democrat Board of Electoral Commissioners who voted to award the election

to the Republicans, Pryor and Ellis, resigned from the Board. HICKMAN COURIER

(Hickman, Ky.), Dec. 15, 1898, at 5. They had to be replaced.

Governor Taylor, “[r]ight after Christmas named Judge A. M. J.

Cochran, of Maysville, a republican, and W. H. Mackoy, [a] Brown democrat,[102]

of Newport, members of the board to succeed Messrs. Pryor and Ellis.” R. E.

HUGHES, F. W. SCHAEFER AND E. L. WILLIAMS, THAT KENTUCKY CAMPAIGN; OR

THE LAW, THE BALLOT AND THE PEOPLE IN THE GOEBEL-TAYLOR CONTEST 156

(1900) [hereinafter CAMPAIGN]. But the remaining Democrat member of the

Board who dissented and did not resign, Charles Poyntz, turned to the election law

itself for his own authority to appoint Democrat Judge John A. Fulton to fill one of

the vacancies; likewise in accordance with that law, Poyntz and Fulton together

named Democrat Morton K. Yonts as the Board’s third member. Id. This set up

the next case to again follow the holdings in George and Purnell. It again pitted

102 “Brown democrats” were members of a splinter faction of the Democrat Party opposed to the radical politics of William Goebel. They held their own convention in Lexington and nominated former Governor John Young Brown as their candidate. His campaign was doomed once Presidential candidate William Jennings Bryan heartily endorsed the Goebel ticket. CAMPAIGN 56–62, 89–90, 95–96, 124.

-206- the Governor’s authority to exercise the inherently executive appointment power

against the constitutional grant of appointment power to the General Assembly.

Sam “Shackelford, clerk [of the Court of Appeals], was about to

qualify [Governor Taylor’s appointees] Mackoy and Cochran, as members of that

board, and the latter were about to enter upon the discharge of their alleged duties

as such members” when Poyntz, Fulton, and Yonts sought an injunction to stop it.

Poyntz, 54 S.W. at 856. The circuit court granted the injunction but in the same

order dissolved it under a procedure allowing review by the Court of Appeals and

granting the Court of Appeals its own power to grant or deny reinstatement. Id.

The case presented a slightly different issue than Purnell—not the

appointment of board members but the filling of vacancies on the board. As the

Court said, the former point was settled law.

The competency of the legislature to create the election board, and elect its members, admittedly is settled in the Purnell v. Mann Case (Ky.) 48 S. W. 407, where the constitutionality of the act conferring such power on that body was carefully considered and upheld.

Poyntz, 54 S.W. at 856. The Court concluded it rationally followed that the power

to fill vacancies was a necessary incident to that power:

When the force of this adjudication [in Purnell] is considered, it can hardly be argued seriously that the legislature is lacking in power to provide how vacancies in their creature, the board, may be filled. Legislative competency to create the board and fill it implies

-207- legislative competency to provide how vacancies on the board may be filled.

However, the Court acknowledged that an express constitutional grant

of that power to another department would limit the General Assembly’s vacancy-

filling authority. “[T]he right to fill such vacancies may be denied to the

legislature because of some provision of the organic law conferring that right

elsewhere . . . .” Id. “[T]hat such right has been vested by the constitution on the

governor exclusively is the contention of the defendants [the Governor’s

appointees].” Id. It was not unlike Appellees’ contention here.

Unlike Appellees in the instant appeal, the Governor’s appointees

seeking to hold onto their positions in Poyntz knew better than to argue that § 76

alone grants the Governor vacancy-filling authority. That was an unsuccessful

argument in In re Opinion of Judges of Court of Appeals, 79 Ky. 621, 623–24

(1881) (as explained in Section 8, supra, this provision only confers a “general

power to fill vacancies” and such power “was not conferred upon the Governor, to

be exercised by him . . . without further constitutional or statutory authority.”

(interpreting CONST. OF KY. of 1850, art. III, sec. 9, the direct antecedent of § 76)).

The Poyntz Court reiterated the very principle enunciated in Opinion of Judges.

Poyntz, 54 S.W. at 858 (quoting Opinion of Judges). The Court also noted the

slight differences in wording between the “further constitutional authority”

-208- Opinion of Judges found in the 1850 Constitution (CONST. OF KY. of 1850, art.

VIII, sec. 26) and its corollary in the current Constitution (§ 152). But the Court

said § 152 “confers no other or greater power on the governor than the old section,

and it does not, in any event, confer the right on him to fill the vacancies in the

appointive offices in dispute, in the face of the statute providing otherwise.” Id.

The Court added another explanation why § 76 alone is not a winning

argument.

By its provisions, it confers only power to fill vacancies by granting commissions which shall expire when the vacancies shall be filled according to the provisions of the constitution. It cannot, of necessity, have any application to vacancies in office for the filling of which no provision is made in the constitution; for, as to such offices, there would be no period at which the commissions granted by the governor would expire. It does not, therefore, apply to the offices in question, unless there is some other provision in the constitution directing how vacancies in them shall be filled. The only other provision of that instrument respecting vacancies is that of section 152, which, as we have seen, does not affect the filling of vacancies in other than elective offices, and the offices in dispute are not of that class.

Id. at 857–58. The Poyntz Court did not find a vacancy-filling power of the

Governor in § 76 or § 152 superior to that of the General Assembly. I do not find

one in the instant case either.

The Republican judges disagreed, again. They dissented but almost

gave up on making a separation-of-powers argument.

-209- 26. Poyntz dissent—Republican judges’ enthusiasm waning

Faced with opinion after opinion following George and Purnell, Judge

DuRelle took a different tack. He dissented on procedural grounds—a lack of

appellate jurisdiction, he argued. Poyntz, 54 S.W. at 859 (DuRelle, J., dissenting).

The logic he urged to achieve a Republican victory in this political

fight was that the immediate dissolution of the trial court’s injunction stopping the

Republican Governor’s appointees amounted to no injunction at all. That is, he

objected to the General Assembly dictating the judiciary’s procedural rules.

“[T]he circuit judge having refused to alter the status,” said DuRelle, “the party

seeking the relief is presumed not to be entitled to it; and as the extraordinary

remedy has not been granted, to the disturbance of the existing state, there is no

occasion to permit an application to a judge of the court of appeals.” Id. But, for

this logic to make sense, DuRelle had to deal with the General Assembly’s statute

that created this procedural rule giving the Court appellate jurisdiction. His

argument had to shift from the Legislative Department’s encroachment on the

Executive Department, to its encroachment on the Judicial Department.

Neither the majority opinion nor the dissent cites the allegedly

encroaching statute, but only states that Poyntz followed a procedure “as is

provided by law.” Poyntz, 54 S.W. at 856. That law, entitled “Reinstatement of

injunctions,” was enacted in 1894 as Title VIII, ch. V, § 297 of the Civil Code (Act

-210- 1894, p. 203). JOSHUA BULLITT, ED., CIVIL AND CRIMINAL CODES OF PRACTICE OF

KENTUCKY AND AMENDMENT ENACTED PRIOR TO 1899 § 297, at 241a–241b (1899)

(hereinafter BULLITT’S CODE). See also St. Bernard Coal Co. v. Pittsburg Coal

Co., 64 S.W. 288, 288 (Ky. 1901) (appeal brought “under section 297 of the Civil

Code, for the reinstatement of an injunction, which purports to have been granted

and dissolved by the judge”).

DuRelle’s solution to a law he found objectionable directly reveals his

own judicial philosophy, a philosophy that could only be inferred before Poyntz.

He wanted the Court of Appeals to exercise its own power to override the General

Assembly. And he said so.

DuRelle criticized the Court’s restraint from weighing in on

legislative policy and, in frustration, took to moaning. “So much has been said

recently of the court’s want of power to consider a question of legislative policy

that this suggestion seems hardly worthy to be considered.” Poyntz, 54 S.W. at

859 (DuRelle, J., dissenting). He was tired of banging his head against the wall

among colleagues who refused to exercise judicial power to weigh in on policy.

Specifically, DuRelle did not agree with Section 297 of the Civil Code that the

General Assembly enacted as law. Id. He decried the judiciary’s reluctance to

question the legislative policy that generated it, saying:

[T]his court, by all proper rules of construction, is as impotent as the circuit court in controlling a question of

-211- legislative policy . . . . This, in my judgment, is the basic objection to the action of the majority of the court.

Whether DuRelle’s “basic objection” was the Court’s impotence or its

cowardice in “controlling a question of legislative policy” matters not. He was

unquestionably wrong to suggest this to be the Court’s role. His politics, in my

opinion, blinded him to that reality. He saw no reason for the Court of Appeals to

restrain itself when the separation-of-powers provisions were right at its fingertips,

and he believed the spirit of republicanism freed the Court to weigh in on

legislative policy. In sum, he showed his colors as a jurist who wanted the

judiciary to function as a superlegislature. See Steven Lee Enterprises v. Varney,

36 S.W.3d 391, 395 (Ky. 2000) (Nothing in the Constitution will “authorize ‘the

judiciary [to] sit as a superlegislature to judge the wisdom or desirability of

legislative policy determinations’” (quoting Heller v. Doe by Doe, 509 U.S. 312,

319–21, 113 S. Ct. 2637, 2642–43, 125 L. Ed. 2d 257 (1993)).

He did not reiterate the Jefferson myth, not this time anyway, nor did

he expressly urge against the use of § 27 and § 28 as vehicles to consider

legislative appointment policy. He simply reminded us that he had “stated briefly

my reasons for so thinking in my dissenting opinion in Purnell v. Mann, reported

in 50 S. W. 268.” Id. at 860. But DuRelle’s dissenting associates said even less.

-212- Judge Guffy, who had written a near-incoherent dissent in Purnell,

declined to write separately this time, but he did concur in DuRelle’s dissent.

Judge Burnam, who theretofore had been relatively quiet, said he

“concurs in this dissent, and will state his further objections.” Id. at 860 (Burnam,

J., dissenting). But, for unknown reasons, he never did.

The test of Burnam’s judicial mettle came in the next case, one which

forced him to decide whether he agreed with Judge DuRelle that express or

irrefutably implied constitutional limitations on the General Assembly were not

necessary; whether he agreed that, because of its “special” strength, Kentucky’s

separation-of-powers provisions alone empowered the Court as surrogate for the

People to re-draw the boundaries between the departments. That case is Taylor v.

Beckham, 56 S.W. 177 (Ky. 1900) (hereinafter Taylor 1).

27. Taylor 1—deciding the governorship

A summary of what happened in the first months of 1900 could never

give a complete sense of the political climate.103 But the following are facts

helpful to understanding the judicial decisions rendered over the next few years.

103 For those interested, two of the books by Kentucky’s State Historian, James Klotter, cited in this dissent as DECADES and WRATH, give excellent accounts of what happened next. A contemporaneous, detailed, and highly illustrated account, cited in both of Klotter’s books, is R. E. HUGHES, F. W. SCHAEFER AND E. L. WILLIAMS, THAT KENTUCKY CAMPAIGN; OR THE LAW, THE BALLOT AND THE PEOPLE IN THE GOEBEL-TAYLOR CONTEST (1900) [cited previously herein as CAMPAIGN].

-213- All during January and until the 29th of the month, the General

Assembly heard the contests to determine the Governor and Lieutenant Governor

races. Before the results could be announced, “on January 30 William Goebel was

shot by an assassin . . . . [O]n January 31 . . . Taylor as governor issued a

proclamation declaring that a state of insurrection existed at Frankfort, Kentucky,

adjourning the general assembly . . . .” Taylor v. Beckham, 178 U.S. 548, 557, 20

S. Ct. 890, 895, 44 L. Ed. 1187 (1900).

Despite Governor Taylor’s adjournment of the legislature, “in the

Capitol Hotel,” a “meeting of members of the General Assembly was held . . .

without any notice to any of the Republican members of the general assembly and

without any notice to” Taylor or Marshall. Id. at 557, 20 S. Ct. at 894-95. On

“February 2, 1900, the board in each of the contests reported [to the legislature] . . .

that William Goebel had received the highest number of legal votes cast for

governor; [and] that J. C. W. Beckham had received the highest number of legal

votes cast for lieutenant governor . . . .” Id., 20 S. Ct. at 895. “Goebel and

Beckham on that day, February 2, took the oath of office[.]” Id.

“[O]n the 3d of February, 1900, William Goebel died, and by law said

Beckham was required to discharge the duties of the office of governor, and

accordingly on that day he took the oath prescribed by law . . . .” Id. at 570, 20 S.

Ct. at 891.

-214- After Goebel’s death, Beckham was positioned to challenge Taylor

for the Governor’s office which Taylor refused to voluntarily relinquish. Both

Beckham and Taylor raced to the courthouse seeking injunctive relief against the

other. Taylor filed his action in Louisville two hours before Beckham sued in

Georgetown, so the actions were consolidated in Jefferson Circuit Court.

CAMPAIGN 284. The circuit court ruled Beckham was entitled to the office and

adjudged that Taylor and Marshall had usurped the offices of governor and

lieutenant governor, respectively. Taylor and Marshall appealed.

The stakes had never been higher in the Court of Appeals, nor had the

allegations been more serious. The spat over the General Assembly’s appointment

power paled by comparison with the issues before the Court in Taylor 1. Taylor

and Marshall accused the Democrat-controlled General Assembly of fraud and

corruption of the highest order.104

104 Judge Burnam summarized the allegations of wrongdoing:

[T]he entire election machinery of the state was in the hands of the friends and partisans of contestants [Beckham, et al] . . . contestees [Taylor and Marshall] were illegally, and in many cases fraudulently, deprived of a large number of votes . . . contestants had entered into a conspiracy with divers members of the legislature to nullify this election . . . by a fraudulent device, not by lot, as required by law . . . 10 out of the 11 members selected for the trial of the governor’s contest were partisans of the contestant . . . at least one member of the board selected to try the contest for the office of governor had wagered money on the result . . . the contest boards, in the trial of the contests, had acted throughout in an illegal, tyrannical, and arbitrary manner in the admission and rejection of testimony, and in the whole conduct of the trial; that they did not report . . . any of the testimony which had been taken upon the trial; and that the general assembly . . . did not have a particle of testimony before them, were not familiar with the facts, refused to hear argument, held their

-215- Most believed the hard constitutional issues had been settled by

George, Purnell, and Poyntz, each of which conclusively rejected the argument

that the Governor’s executive powers entitled him to appoint members of boards

such as the prison board and the state election contest board and holding that § 93

lodged in the General Assembly the power to elect those minor officers

notwithstanding that appointment power is intrinsically executive in nature.

Those decisions clarified the boundary between the Executive

Department and the Legislative Department. Taylor 1 tested the boundary between

the Legislative Department and the Judicial Department. Yet there is a common

thread running through those earlier cases, and Taylor 1, and cases yet to come.

The question each case asks and that the Court was to answer is this: If the People

modify the original boundaries dividing the three departments of government by

expressly granting to one department a power intrinsically belonging to another,

does the separation-of-powers doctrine alone empower the Judicial Department to

restore the boundaries existing before the People modified them?

alleged meeting . . . at a secret place without the knowledge of either contestees, or more than one–third of the entire membership of the general assembly [Republican senators and representatives], who were thereby excluded from any participation in the action so taken at the time of the alleged determination of the contests in favor of contestants.

Taylor, 56 S.W. at 184–86 (Burnam, J. concurring).

-216- In George, Purnell, and Poyntz, the modifying constitutional

provision was § 93. And the answer to this question was no. In Taylor 1, the

modifying constitutional power was § 90. And, again, the answer was no.

Section 90 of the Kentucky Constitution is short and straightforward:

Contested elections for Governor and Lieutenant Governor shall be determined by both Houses of the General Assembly, according to such regulations as may be established by law.

CONST. OF KY. of 1891 § 90. Despite the plenary nature of § 90, Taylor and

Marshall objected to the “regulations . . . established by law”—the Goebel Election

Law—because it prevented judicial oversight that would have revealed mass

disfranchisement of the voters.

The republicans contended that the court had the power to remedy a wrong act even by the legislature, which they said had disfranchised 150,000 electors—that many votes having been objected to by Goebel before the contest boards, and the contest board apparently cut out all of them, not having specified any vote in its return [to the General Assembly]. There was nothing to show that Goebel had been elected, they [argued], and yet the legislature of Kentucky was declared to be above all attack and above the constitution of Kentucky, above the people who gave it being, above the constitution of the United States.

CAMPAIGN 285.

Taylor and Marshall argued the General Assembly’s adjudicative

proceedings by which the state’s two highest offices were determined “were void,

-217- and did not affect in any way their rights to the offices of governor and lieutenant

governor” determined by the original state election contest board’s vote-canvassing

that determined all the Republicans had won. Taylor 1, 56 S.W. at 178. They

wanted the Court to “institute an inquiry into the conduct of [the Legislative

Department] and form an issue to try by what motives legislators were governed in

the enactment of a law.” Id. at 180. The Court was not persuaded, foreseeing the

grand mischief that would result if had been persuaded.

If this may be done, we may also inquire by what motives the executive is induced to approve a bill or withhold his approval, and, in case of withholding it corruptly, by our mandate compel its approval. To institute the proposed inquiry would be a direct attack upon the independence of the legislature, and a usurpation of power subversive of the constitution.

The Court explained its view of how, “[b]y section 27[,] the powers of

the government are divided into three distinct and independent departments[.]” Id.

at 179. And this bears on the Appellees’ same arguments in the instant case that

convinced the Jefferson Circuit Court to do what the Taylor 1 Court refused to do.

The Court said, “The legislative branch of the government more

nearly represents the people than any other branch, and it is charged by the

constitution and laws of this state with many important interests directly affecting

the people, to secure which their independence of the executive is absolutely

-218- necessary.” Id. That branch’s “independence is effectually guarded against any

encroachment on the part of the executive.” Id. (quoting 1 JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 611–12, § 843 (M.

Bigelow, ed., 1891)). “We are clearly of the opinion that the state constitution was

intended to maintain the absolute independence of the legislative branch of the

government . . . .” Id.

Judge DuRelle agreed with his fellow Republicans Taylor and

Marshall and dissented yet again. He refused to buy any of what the majority was

selling. He still believed the Goebel Election Law was “inherently vicious,” and

worse. He criticized his colleagues’ milquetoast approach. “[T]he criminal

purpose of the present election law,” he said, “[and] its potential spawn of force

and fraud, now realized, [f]ailed to engender anything beyond mild doubt of its

constitutionality.” Id. at 188 (DuRelle, J., dissenting) (emphasis added). He

insisted “an election under an unconstitutional law is no election.” Id. That is, he

regarded as unconstitutional the General Assembly’s election of Goebel by

operation of Goebel’s own election law. DuRelle insisted only one “tribunal can

decide the question that there was no election”—the Court of Appeals. Id. at 187–

88.

The frustration DuRelle revealed earlier in Poyntz resurfaced in

Taylor 1. “It has been reiterated so many times that the repetition is wearisome

-219- that the courts will not lightly, nor in a doubtful case, hold the action of a co–

ordinate branch of the government unconstitutional . . . .” Id. at 187 (emphasis

added). He seemingly took the position that even “mild doubt of its

constitutionality” should be enough for the Court to reject the Goebel Election

Law. The Court’s docility exhausted him. He proclaimed, “[T]he judiciary has

rights also . . . and should be a little jealous of its own rights; and one of the

essential rights of the judiciary is its right and power . . . to announce when other

departments go beyond them . . . .” Id. at 188. “In its delicacy as to invading the

jurisdiction of the co-ordinate legislative branch of the government this court

seems to me to have been somewhat overnice.” Id. at 188. DuRelle asked who but

the Court of Appeals has the power to say whether another department “has

violated the inhibitions of the constitution”? Id. at 187. Who else, indeed.

DuRelle should have known. When there is “mild doubt” of constitutionality—for

that matter when there is something less than judicial certainty—, the core

principle of republican government tells us all power resides with the People and

they have the power to say.

But the majority did not doubt it had the power. It simply drew the

line between use and abuse of such power in a different place than DuRelle. The

majority knew those opposing the Federal Constitution’s ratification in 1787 and

1788 predicted “that sooner or later one of the three equal departments of the

-220- government would overshadow and supervise the others.” Id. at 181. It must have

been obvious to the majority that judicial supervision of that nature is what

DuRelle wanted for it pointed out that “[t]he framers of our government have not

constituted [the judicial department] with faculties to supervise co-ordinate

departments, and correct or prevent abuses of their authority.” Id. at 183.

As often happens, the majority responded to DuRelle’s dissent,

narrowing the issue before the Court to its simplest expression. “The question is,

therefore, can the court hear evidence of this character assailing the integrity of the

legislative journals?” Id. at 180. The majority said no.

“[T]he authorities are uniform that evidence cannot be received in

court to impeach the verity of the record provided by the constitution as evidence

of legislative proceedings.” Id. at 180. After citing and summarizing a fair

number of those authorities, the Court particularly embraced the view of the

Pennsylvania Supreme Court, saying:

We know of no such check upon legislation, and would not desire to see such a one instituted. . . . If the judiciary have such authority, then every justice of the peace is competent to sit in judgment upon every act of legislation which disorderly moralists or knavish or ignorant anarchists may choose to charge as fraudulent. Nay, more, if the question may be raised in a judicial proceeding, the judges and justices of the peace will be bound to investigate and decide it, and the principal judicial business then might become that of testing, not cases by the standard of the law, but the standard itself by the infinitely various and uncertain judicial notions of

-221- morality.” Any number of similar quotations may be made from other state courts.

Id. at 181 (quoting Sunbury & E.R. Co. v. Cooper, 33 Pa. 278, 283 (1859) (citation

omitted in original)). The Court knew constitutional course correction was not the

purview of the judiciary, but also knew whose purview it is—the People.

However far the legislature may depart from the right line of constitutional morality, we have no authority to supervise and correct their act on the mere ground of fraudulent or dishonest motives. . . . The remedy for such an evil is in the hands of the people alone, to be worked out by an increased care to elect representatives that are honest and capable.

Id. The Court affirmed the circuit court’s judgment that Beckham was entitled to

the office of governor. Id. at 184.

When it rendered Taylor 1, the Court’s political makeup was still 4-3

in favor of Democrats. The only difference is that Judge Lewis, who retired at the

end of his term in 1898, was succeeded by another Democrat, Judge Hobson,105

who authored the majority opinion in Taylor 1.

But Taylor 1 was not decided along party lines. Six judges

concurred—the four Democrats plus Republicans Judge Burnam and Judge Guffy.

105 John Peyton Hobson (1850-1934) was elected to the Court of Appeals in 1898 and served on the Court from 1899 to 1915. He twice served as Chief Justice (1905-1907, 1911-1915). In 1924, he took a position as a Commissioner of the Court of Appeals where he served until his death in 1934. KENTUCKY POST (Covington, Ky.), June 4, 1934, at 2.

-222- Only Judge DuRelle dissented. Judge Burnam concurred and wrote a separate

opinion which Judge Guffy joined.

Burnam was “firmly convinced . . . that the general assembly, in the

heat of anger, engendered by the intense partisan excitement . . . , have done two

faithful, conscientious, and able public servants an irreparable injury in depriving

them of the offices to which they were elected by the people of this

commonwealth; and a still greater wrong” to the voters. Id. at 185 (Burnam, J.,

concurring). But there was much more at stake in this case than the others.

Specifically citing § 27 and § 28 of the Constitution, Judge Burnam

acknowledged both the General Assembly’s plenary power granted by § 90 and the

constitutionality of the Goebel Election Law, regardless of its advocate’s motives.

Id. More importantly, he acknowledged the Court could not divine authority from

§ 27 and § 28 to interfere in the General Assembly’s exercise of express powers;

that would take an express constitutional grant. “[N]o appeal or power to review

their finding is given to the courts by the constitution, which is the basis of all

power both in the legislature and in the courts . . . .” Id. “I have been led with

some reluctance to the conclusion,” he said, “and not without some misgivings as

to its correctness, that there is no power in the courts of the state to review the

finding of the general assembly in a contested election for the offices of governor

and lieutenant governor as shown by its duly–authenticated records.” Id. This

-223- necessarily included the implied authority in §§ 27 and 28 that DuRelle had urged

over the past several years as a source of judicial power—and would urge again

one day. But on this day, Judge Burnam’s judicial integrity and independence was

on praiseworthy display.106

When Judge Burnam died in 1919, “[b]eautiful and impressive

services were held . . . in open Court” in his honor and memory. DAILY REGISTER

(Richmond, Ky.), Sept. 27, 1919, at 2. After the reading of the Court’s Resolution

heralding his achievements, Judge Hobson paid a special tribute.

Hobson was no longer on the Court but chaired the Court of Appeals’

Resolution Committee. He said:

[T]he highest tribute that could be paid to Judge Burnam as a man, a lawyer and an impartial judge was his attitude and conduct as Judge of Kentucky’s highest court during the contested election between [Beckham] and W. B. Taylor. . . . [W]hile Judge Burnam was an intense Republican and from his standpoint condemned the legislature in its action in that celebrated case, he was first a lawyer and a judge and had regard for the constitution as the fundamental law of the state, and as an impartial Judge joined with the court [majority] . . . . [C]onsidering the then inflamed condition of the public mind and the extreme partisan feeling raging at the time, Judge Burnam’s conduct was not only a monument to his character and intellectual integrity, but that it reflected great honor upon the highest judicial tribunal of the state in those troublous times . . . . In other words . . . it elevated the court to a plane high above the partisan feelings of the times.

106 And Guffy’s, too, I suppose, by association.

-224- Id. But Judge DuRelle could never bring himself to do the same.

28. Taylor 2—SCOTUS weighs in on our form of republican government

The Court of Appeals rendered Taylor 1 on April 6, 1900, and

Taylor’s attorneys immediately prepared a petition for a writ of error to the

Supreme Court of the United States. On April 15, Taylor checked into the Raleigh

Hotel in Washington, D.C. and “was busy preparing for the hearing of his case”

even as news from Kentucky certainly distracted him.107 EVENING TIMES

(Washington, D.C.), Apr. 20, 1900, at 2. Taylor’s attorneys, Helm Bruce who had

appeared before the nation’s high court fifteen times before108 and former

107 Less than a week after Taylor arrived in Washington, the whole country was abuzz with news that the grand jury in Frankfort indicted Taylor “as an accessory to the murder of Governor Goebel.” EVENING TIMES (Washington, D.C.), Apr. 20, 1900, at 2. The report may have been premature but the number of newspapers reporting the story are too many to list. A sampling from around the country includes these: RIVERSIDE DAILY PRESS (Riverside, Cal.), Apr. 20, 1900, at 1; MORNING GAZETTE-NEWS (Kalamazoo, Mi.), Apr. 20, 1900, at 5; MORNING TRIBUNE (Lewiston, Idaho), Apr. 20, 1900, at 4; PORTLAND DAILY PRESS (Portland, Maine), Apr. 20, 1900, at 3; OREGONIAN (Portland, Or.), Apr. 20, 1900, at 3; BOSTON HERALD (Boston, Mass.), Apr. 21, 1900, at 2; BALTIMORE SUN (Baltimore, Md.), Apr. 20, 1900, at 1; PLAIN DEALER (Cleveland, Ohio), Apr. 20, 1900, at 1; OCALA EVENING STAR (Ocala, Fla.), Apr. 21, 1900, at 2; TIMES (Richmond, Va.), Apr. 21, 1900, at 2; DAILY EXPRESS (San Antonio, Tex.), Apr. 22, 1900, at 4; LEXINGTON DISPATCH (Lexington, S.C.). Apr. 25, 1900, at 2. 108 Helm Bruce (1860-1927) attended Washington & Lee College and the Law School at the University of Louisville before beginning practice with his father in 1882. He styled himself “an independent Democrat.” He was active Louisville society generally, but especially in the Presbyterian Church, advocating for Prohibition and an end to pari-mutuel betting. COURIER- JOURNAL (Louisville, Ky.), Aug. 11, 1927, at 1–2. In 1892, he argued his first case before the Supreme Court of the United States, Louisville Water Co. v. Clark, 143 U.S. 1, 12 S. Ct. 346, 36 L. Ed. 55 (1892). When he died, he was awaiting an opinion in his fiftieth case before the high court, Atlantic Coast Line R. Co. v. Standard Oil Co. of Kentucky, 275 U.S. 257, 48 S. Ct. 107, 72 L. Ed. 270 (1927).

-225- Kentucky Governor William O. Bradley, were less distracted and no doubt ready

for the case’s eight hours of oral argument scheduled for April 30 and May 1.

Taylor v. Beckham, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187 (1900) (hereinafter

Taylor 2); EVENING BULLETIN (Maysville, Ky.), Apr. 17, 1900, at 2.

The Monday and Tuesday that straddled April and May were

unseasonably warm; the temperature both days hovered around 80 degrees.

EVENING TIMES (Washington, D.C.), May 1, 1900, at 9; May 2, 1900, at 6. It was

likely no cooler in the Old Senate Chamber on the second floor of the Capitol

when Chief Justice Fuller called the case as the Associate Justices took their seats.

The Court’s first order of business was to determine whether it could exercise

original jurisdiction necessary to grant the writ. Taylor’s claim that the Court of

Appeals’ decision denied him a property or other right protected by the 14th

Amendment found no favor with the Court. Id. at 578, 20 S. Ct. at 901. So, Taylor

urged another ground for jurisdiction, one more to the point of our case.

Taylor argued that if SCOTUS did not take jurisdiction, its inaction

would abet a breach of the separation of the government’s departments and

Kentuckians “will be denied the benefit of a republican form of government, all of

which is contrary to the provisions of the 4th section of the 4th article of the

[Federal] Constitution . . . .” Id. at 557, 20 S. Ct. at 893. “[T]he general assembly

deprived the people of Kentucky of the right to choose their own representatives,”

-226- Helm Bruce said; that right, he argued, is “secured by the guarantee of the Federal

Constitution of a republican form of government to every state, and [the Kentucky

General Assembly] deprived them of their political liberty without due process of

law.” Id. at 573–74, 20 S. Ct. at 899. The remedy he claimed was the same as

DuRelle wanted—judicial power to undo what the General Assembly had done by

authority he imagined was in §§ 27 and 28.

Like DuRelle, Taylor believed the solution was the Court of Appeals’

exercise of a power they saw as inherent but hiding for a hundred years in

Kentucky’s four constitutions’ separation-of-powers provisions. Taylor wanted

SCOTUS to agree with him and DuRelle. Given that Taylor’s lawyers had four

hours to argue, it would be beyond remarkable if they failed to make DuRelle’s

fallacious argument that the Thomas Jefferson-penned §§ 27 and 28 meant

Kentucky’s division of the departments surpassed that of all other republican forms

of government. Such superiority in those separation-of-powers provisions, he

argued, compelled not only the Supreme Court’s jurisdiction, but its order that the

Kentucky Court exercise that spectral power to redefine the boundaries where it

believed they should go. Whether DuRelle’s argument was made or not, the

Supreme Court was not persuaded.

Chief Justice Fuller who penned the opinion, carefully and expressly

entertained Taylor’s argument. To explain why the Supreme Court was

-227- unpersuaded, Fuller first commented on the Goebel Election Law itself. “The

statute enacted for the purpose of carrying the provisions of the Constitution [§ 90]

into effect has been in existence in substance since 1799 . . . [and m]any of the

states have similar constitutional provisions and similar statutes.” Id. at 574, 20 S.

Ct. at 899–900 (citations omitted).

But Chief Justice Fuller astutely identified Taylor’s real argument—

not his objection to the law itself, but his disgust that the Kentucky Court of

Appeals failed to act. “We do not understand this statute to be assailed as in any

manner obnoxious to constitutional objection,” said the Chief Justice, “but

[Taylor’s lawyers] complain of the action of the general assembly under the statute

and of the judgment of the state courts declining to disturb that action.” Id. at 574,

20 S. Ct. at 900 (emphasis added). That failure on the part of the Court of Appeals

left Taylor nothing to argue but the guarantee of a republican form of government

found in U.S. CONST. art. 4, § 4. So, he argued that “when the state of Kentucky

entered the Union, the people[,]” received the federal government’s “distinct

pledge . . . of the guaranty of a republican form of government, and . . . that th[e

Supreme Court of the United States] has jurisdiction to enforce that guaranty . . . .”

Id. at 578, 20 S. Ct. at 901.

Why did it seem to Taylor that Kentucky’s highest court refused to

guarantee a republican form of government? Like DuRelle, he was blinded by a

-228- fundamental misunderstanding of “the distinguishing feature of that form of

government . . . . the right of the people to choose their own officers for

governmental administration . . . .” Id. at 578, 20 S. Ct. at 901. Chief Justice

Fuller tried to explain.

The Supreme Court understood the reason “the judiciary of Kentucky

was unable to do so”; i.e., why it could not counteract the General Assembly’s

exercise of power under § 90 even if exercised to enact a dubious law. Id. It was

“because of the division of the powers of government.” Id. That is, the Supreme

Court acknowledged that, rather than empowering the Court of Appeals, § 27 and §

28 restricted the judiciary from acting as a superlegislature.

So, if neither the Court of Appeals nor the Supreme Court could

provide Kentucky with the republican form of government Taylor and DuRelle

envisioned, who could? The Supreme Court had that answer, too. “It was long

ago settled that the enforcement of this guaranty [of a republican government]

belonged to the political department.” Id. (citing Luther v. Borden, 48 U.S. 1, 12

L. Ed. 581 (1849)). It did not belong to the judiciary. Justice Fuller continued.

He and the Court found the words of an advocate in a prior opinion

worthy of embracing and repeating:

Mr. Webster’s argument [in that prior case] . . . took a wider sweep, and contained a masterly statement of the American system of government as recognizing that the people are the source of all political power, but that, as the

-229- exercise of governmental powers immediately by the people themselves is impracticable, they must be exercised by representatives of the people; that the basis of representation is suffrage; that the right of suffrage must be protected and its exercise prescribed by previous law, and the results ascertained by some certain rule; that through its regulated exercise each man’s power tells in the Constitution of the government and in the enactment of laws; that the people limit themselves in regard to the qualifications of electors and the qualifications of the elected, and to certain forms for the conduct of elections; that our liberty is the liberty secured by the regular action of popular power, taking place and ascertained in accordance with legal and authentic modes; and that the Constitution and laws do not proceed on the ground of revolution or any right of revolution, but on the idea of results achieved by orderly action under the authority of existing governments, proceedings outside of which are not contemplated by our institutions.

Id. at 579, 20 S. Ct. at 901 (emphasis added) (quoting Duncan v. McCall, 139 U.S.

449, 461–62, 11 S. Ct. 573, 577, 35 L. Ed. 219 (1891) (citing 6 DANIEL WEBSTER,

THE WORKS OF DANIEL WEBSTER 217 (17th ed. 1877) (paraphrasing language from

217–25))). “These observations are applicable here,” said the Court. Id. at 580, 20

S. Ct. at 902. It was an ideal that should have rung a familiar bell.

The Supreme Court of the United States saw nothing improper or

untoward going on in Kentucky, at least not in the structure of its organic and

statutory laws. “The commonwealth of Kentucky is in full possession of its

faculties as a member of the Union . . . .” Id. That was true even as measured

against the expectations of the Federal Constitution.

-230- In the eye of the Constitution, the legislative, executive, and judicial departments of the state are peacefully operating by the orderly and settled methods prescribed by its fundamental law, notwithstanding there may be difficulties and disturbances arising from the pendency and determination of these contests. This very case shows that this is so, for those who assert that they were aggrieved by the action of the general assembly properly accepted the only appropriate remedy which, under the law, was within the reach of the parties. That this proved ineffectual as to them, even though their grounds of complaint may have been in fact well founded, was the result of the Constitution and laws under which they lived and by which they were bound. Any remedy beside that is to be found in the august tribunal of the people, which is continually sitting, and over whose judgments on the conduct of public functionaries the courts exercise no control.

Id. (emphasis added). Once again, the cure for an objectionable law is political, to

be administered by the People in reproaching or replacing their representatives.

Consider carefully the Supreme Court’s last sentence speaking of the

“august tribunal of the people” and especially the phrase—“over whose judgments

on the conduct of public functionaries the courts exercise no control.” Id. The

courts are thus powerless to restructure the form of republican government the

People created by the grant of legislative power in such provisions as § 90 and §

93. Pretending to find that power in the cytoplasm of §§ 27 and 28 makes us, the

Judicial Department, the usurpers.

The Supreme Court dismissed the petition for a writ for lack of

jurisdiction but not before leaving Kentucky jurists with these important lessons.

-231- Taylor’s and Marshall’s pursuit of the two highest executive offices in Kentucky

government had come to an end. But there was still much jurisprudence to come,

and to discuss in this dissent, that bears on the instant appeal. Without discussion

of those cases, LRC v. Brown, to the extent it follows Pratt 1 and Sibert, cannot be

appreciated for the failure of jurisprudence it is.

29. (Almost) all Republicans ousted from lesser offices bring suit

The General Assembly did not oust only Governor Taylor and

Lieutenant Governor Marshall. It also ousted the Republicans who received

certificates of election for the offices of Secretary of State (Caleb Powers), Auditor

(J. S. Sweeney), Treasurer (H. R. Day), Attorney General (C. J. Pratt),

Superintendent of Public Instruction (John Burke), and Commissioner of

Agriculture (J. W. Throckmorton), all of whom had taken the oath of office in

early January. On the day of Governor Goebel’s funeral, February 8, 1900,

attorneys representing those Republicans petitioned the United States District

Court in Cincinnati for an injunction. CAMPAIGN 268, 277–78. After hearing

arguments on February 12, the district judge dismissed the petition holding that,

because no federal question was raised, their relief was in state court. Id. 280–82;

Taylor 2, 178 U.S. at 577 n.4, 20 S. Ct. at 901 (The district court’s decision cannot

be found on Westlaw but the Supreme Court of the United States appears to have

-232- expected it would be reported and cited the case as follows: “Sweeny v. Poyntz,

Cir. Ct. U. S. Dist. Ky. not yet reported, Taft, J.”).

But the Democrats already filed state actions in Franklin Circuit Court

alleging the Republicans usurped their respective offices. By the time the circuit

court ruled on April 17, 1900, the jurisprudence was well-settled by George,

Purnell, and Poyntz. The judge followed those opinions and quickly “handed

down a decision . . . sustaining the Democrats in every contention.” HOPKINSVILLE

KENTUCKIAN (Hopkinsville, Ky.), Apr. 20, 1900, at 2.

The window to appeal the circuit court judgment was two years.

BULLITT’S CODE § 745, at 483 (“appeal shall not be granted except within two

years next after the right to appeal first accrued”); Schultz v. Schultz, 332 S.W.2d

253, 254 (Ky. 1959) (First enacted in 1854, the same section provided a two-year

appeals window at least until 1959.). None of the Republicans, save one, waited as

long as a week to take their cases to the Court of Appeals. “[A]ppeal was prayed

as to all cases except that of . . . [Attorney General Clifton J.] Pratt. Mr. Pratt . . .

did not ask an appeal.” EVENING STAR (Washington, D.C.), Apr. 24, 1900, at 3.

After some procedural bumps, Sweeney v. Coulter, 57 S.W. 254, 254

(Ky. 1900) (hereinafter Sweeney 1), the lead case contesting the office of State

Auditor, came to the fore. Oral arguments were scheduled for October 6, 1900, but

were soon canceled. Sweeney v. Coulter, 58 S.W. 784, 785 (1900), overruled by

-233- Pratt 1 (hereinafter Sweeney 2). No oral argument was necessary in a case hardly

more difficult than what the circuit court addressed. The Court of Appeals had all

the same jurisprudence the circuit court had—George, Purnell, and Poyntz—plus

now it had the Supreme Court’s decision in Taylor v. Beckham rendered May 21.

In deciding the cases contesting the lesser executive offices, the Court

turned directly to the cases that should govern the instant appeal, Purnell and

Poyntz. The Court said:

It is urged that the election law enacted in 1898 is unconstitutional [as violating the separation of powers provisions, § 27 and § 28]. As this court recently passed upon that question in Purnell v. Mann, 48 S. W. 407, and gave its reasons for holding it constitutional, we will not again discuss it.

It is also urged that the vacancies in the state board of election commissioners could only be filled by appointees of the governor. . . . The question was directly presented to this court in a suit between the appointees of the governor and those of Poyntz as to who had the authority to fill the vacancies, and this court, in Poyntz v. Shackelford, 54 S. W. 855, decided that Poyntz had the right under the law to appoint Fulton, and he and Fulton to appoint Yonts.

Id. at 786–87. The Republican judges dissented but, apparently deeming it futile to

write separately, none of them did.

All the appeals addressing the remaining lesser offices were

consolidated separately from Sweeney 2 and, in deciding them, the Court of

Appeals’ simply followed suit:

-234- Hill and Powers were opposing candidates for the office of secretary of state, Nall and Throckmorton for the office of commissioner of agriculture, Hager and Day for the office of treasurer, and McChesney and Burke for superintendent of public instruction. . . . The question was tried, and the state board of election commissioners adjudged that each [Democratic contestee] had been elected to the office claimed by him. Suits were instituted in the Franklin circuit court to obtain possession of the offices, books, etc., and to have a judgment rendered declaring each of the [Republican election certificate holders/office] usurpers, and the court below so adjudged. The same defense was made in each of the cases as was made in the case of Sweeney v. Coulter, in which the court this day delivered an opinion. By authority of the opinion in that case, the several judgments are affirmed.

Powers v. Hill, 58 S.W. 1132, 1132–33 (Ky. 1900) (hereinafter, Powers 1).

Again, Republican Judges Guffy, Burnam, and DuRelle dissented but

did not write separately. If they were disheartened, they would not remain so.

Judicial politics of 1900 would provide cause for Republican optimism.

30. The election of 1900—playing politics with the judiciary

Unlike the other Republican politicians who prosecuted Sweeney 1 &

2 and Powers 1, Clifton J. Pratt obeyed the Franklin Circuit Court’s judgment and

immediately turned over the Attorney General’s office keys and papers to the

candidate the court said obtained the most legal votes for that office, Robert

Breckinridge. DAILY PUBLIC LEDGER (Maysville, Ky.), Nov. 10, 1900, at 5. Pratt

returned to his home and law practice in Madisonville, gave the Memorial Day

speech, participated in the local Republican Convention, and served as a delegate

-235- to the state convention in Louisville. BEE (Earlington, Ky.), Mar. 15, 1900, at 6;

DAILY PUBLIC LEDGER (Maysville, Ky.), May 10, 1900, at 3; July 19, 1900, at 2.

New Attorney General Breckinridge was immediately faced with the

far thornier tasks of defending against the other Republican usurpers’ appeals, and

the even greater challenges of pursuing and trying the conspirators in William

Goebel’s assassination. The trials of Jim Howard and Caleb Powers for the murder

would soon be scheduled and concluded before year’s end.

On March 9, 1900, warrants were issued for the arrest of five men

charged as accessories before the fact in the murder of Governor Goebel.

HARTFORD HERALD (Hartford, Ky.), Mar. 11, 1900, at 3. The defendants included

Caleb Powers who was, at that time, still Kentucky’s Secretary of State. Id.

Powers immediately left Frankfort in disguise, but he was soon arrested on the

train in Lexington. EVENING BULLETIN (Maysville, Ky.), Mar. 12, 1900, at 3.

By mid-April, other indictments were handed down although withheld

for a time. Rumors peppered newspapers around the country that Governor Taylor

was among those indicted. See Section 28 and footnote 107, supra. “[H]e returned

to Frankfort to face any indictment . . . but no paper was served on him”; even his

written inquiries to the Commonwealth Attorney yielded no direct answer, and

-236- whether Taylor was indicted “remained a profound mystery at the close of

April.”109 CAMPAIGN 320–21.

By the end of May, Taylor was in Indianapolis where he publicly

stated he tried to determine “if there was an indictment against me, but they would

not tell me.” He said Indiana was where he “will await developments.” THE

ANACONDA STANDARD (Anaconda, Mont.), May 23, 1900, at 1. That next

development came in June when the Franklin County sheriff obtained a requisition

from Kentucky Governor Beckham to Republican Indiana Governor James A.

Mount to arrest and extradite ex-Governor Taylor. DAILY CAMERA (Boulder,

Colo.), June 02, 1900, at 2. On June 13, 1900, Governor Mount refused to honor

the requisition and gained national attention for giving asylum to his fellow

Republican. ADAIR COUNTY NEWS (Columbia, Ky.), Jan. 16, 1900, at 2; LINDA C.

GUGIN & JAMES E. ST. CLAIR, EDS., THE GOVERNORS OF INDIANA 214–15 (2006).

Other events in the summer of 1900, would have more impact on

Breckinridge personally and on Kentucky’s constitutional jurisprudence, and not in

a good way. It was another election year. The unexpired term of Governor Goebel

was to be filled by a special election—a contest that pitted incumbent Beckham

109 According to one newspaper that devoted a large portion of its January 16, 1901, issue to summarizing events of 1900, on April 17 the Franklin County Grand Jury returned indictments against ten men for complicity in the murder of William Goebel, including Governor Taylor. ADAIR COUNTY NEWS (Columbia, Ky.), Jan. 16, 1901, at 2. Author and Franklin County Lawyer Lewis Franklin Johnson (1859-1931) gives the date of Taylor’s indictment as May 5, 1900. L.F. JOHNSON, FAMOUS KENTUCKY TRAGEDIES AND TRIALS 308 (1916) (hereinafter TRAGEDIES).

-237- against Republican John W. Yerkes. G. GLENN CLIFT, GOVERNORS OF KENTUCKY,

1792-1942, at 110 (1942). But the election that mattered at least as much then, and

matters more to our jurisprudence today, was the contest for Judge of the Court of

Appeals for the Seventh Appellate District.

That district went heavily for Taylor in the 1899 election and

Republicans saw a chance to flip the Court of Appeals. In February and March,

three Republicans threw their hats in the ring for the Republican nomination to

challenge Chief Justice Hazelrigg who was in his first term holding that district’s

seat. OWINGSVILLE OUTLOOK (Owingsville, Ky.), Feb. 22, 1900, at 5; EVENING

BULLETIN (Maysville, Ky.), Mar. 3, 1900, at 3. The Republican Central

Committee canvassed the district in May and scheduled a nominating convention

just for that office. Before the end of May, as he approached the end of his only

term on the Court, Democrat Chief Justice Hazelrigg read the tea leaves and chose

not to seek re-election. BOURBON NEWS (Paris, Ky.), May 29, 1900, at 5.

On June 5, 1900, as scheduled, the district’s Republican Party

officials nominated 38-year-old Montgomery Circuit Judge Ed O’Rear as its

candidate for the Seventh Appellate District of the Court of Appeals. ADAIR

COUNTY NEWS (Columbia, Ky.), Jan. 16, 1900, at 2. Judge O’Rear, who had been

campaigning for the nomination since February, put his campaign into a higher

gear. The Democratic Party was not as quick to act.

-238- Finally, on September 29, 1900, almost four months after the

Republicans picked their candidate and seven months after O’Rear began

campaigning, the Democratic Party convened delegates in Winchester from not

quite all the counties of the Seventh Appellate District. Harlan Circuit Judge W. F.

Hall did not solicit the nomination, but the party nominated him by acclamation

anyway. HOPKINSVILLE KENTUCKIAN (Hopkinsville, Ky.), Oct. 2, 1900, at 2;

COURIER-JOURNAL (Louisville, Ky.), Oct. 2, 1900, at 6; 4 KENTUCKY 363.

Although the governorship was again on the ballot, a federal official

who campaigned for the Kentucky Republicans110 said “[t]here was as much

interest in that [judicial] race among Kentucky Republicans as there was over the

governorship.” INDIANAPOLIS JOURNAL (Indianapolis, Ind.), Nov. 11, 1900, at 2.

O’Rear’s election “means a great deal for that state[,]” he said, to have “a

Republican majority of the court.” Id.

No one was surprised when Governor Beckham defeated his

Republican challenger, but perhaps the margin of victory did; Beckham won by

110 That official was John W. Langley of Pikeville. In 1900, Langley was the appointment clerk at the Census Office in Washington. INDIANAPOLIS JOURNAL (Indianapolis, Ind.), Nov. 11, 1900, at 2. From 1907 to 1926, he served in Congress from Kentucky’s the 10th Congressional District, earning the nickname “Pork Barrel John” before being convicted of violating Prohibition laws and resigning his seat. James C. Klotter, Kentucky: Portrait in Paradox, 1900-1950 283 (1996). His wife, Katherine Gudger Langley, was elected as his successor and served in the House of Representatives from 1927 to 1931. Biographical Directory of the U.S. Congress, Katherine Gudger Langley: https://bioguide.congress.gov/search/bio/L000073.

-239- only 3,689 votes of 562,415 votes cast. G. GLENN CLIFT, GOVERNORS OF

KENTUCKY, 1792-1942, at 110 (1942); FRANKFORT ROUNDABOUT (Frankfort, Ky.),

Dec. 8, 1900, at 4. Notwithstanding the near equal division in the citizenry’s

political loyalties, a Beckham spokesman told the press, “The first official act of

Governor-elect Beckham will be to demand of the Governor of Indiana that he

surrender ex-Gov. W. S. Taylor and ex-Secretary of State [to Gov. Bradley, 1895–

1899] Charles Finley, who are indicted as accessories in the murder of William

Goebel.” EVENING POST (New York, N.Y.), Nov. 14, 1900, at 3.

But the election that impacts Kentucky jurisprudence to this day and

therefore impacts the instant appeal was that of Republican Judge O’Rear. His

margin of victory over Hall—3,564—nearly matched that of Beckham over

Yerkes. EVENING BULLETIN (Maysville, Ky.), Dec. 08, 1900, at 3.

Soon after O’Rear’s election, predictions were rampant. “The

Republicans now have a majority in the court of appeals . . . and they say they

would be paying the Democrats back, in their own coin for contesting and taking

the state offices last year.” AKRON DAILY DEMOCRAT (Akron, Ohio), Nov. 08,

1900, at 2; TO DAY (Detroit, Mich.), Nov. 08, 1900, at 5. Governor Taylor, “the

Kentucky fugitive[,]” was asked if O’Rear’s election would have “any effect on the

Goebel murder cases now pending,” and he predicted “the present court” would

expedite matters and “could easily dispose of the Howard and Powers appeals”

-240- before their fates could be affected differently by Judge O’Rear’s investiture in

January 1901. DENVER POST (Denver, Colo.), Nov. 09, 1900, at 2.

Although the governor’s race was close—a margin of just 1.5%—, the

Republican Committee chose not to contest it, reasoning that “if a contest should

be filed by the Republicans, the Democrats would retaliate by contesting the

election of Judge O’Rear . . . and the Goebel State Court [Board of Electoral

Commissioners] would count him out. The election of O’Rear is regarded as of

more importance than even the election of Yerkes as Governor.” EVENING POST

(New York, N.Y.), Nov. 12, 1900, at 1 (emphasis added).

The most immediate impact of Judge O’Rear’s election related to the

appeals of Republicans convicted of murdering William Goebel.

31. Appeals of the Goebel assassination conspirators

There were at least nine trials of Goebel’s accused assassins. L.F.

JOHNSON, FAMOUS KENTUCKY TRAGEDIES AND TRIALS 308 (1916) (hereinafter

TRAGEDIES). In August 1900, a Georgetown jury found Caleb Powers guilty of

Goebel’s murder and sentenced him to life in prison.111 ADAIR COUNTY NEWS

(Columbia, Ky.), Jan. 16, 1901, at 2. A month later, Eastern Kentuckian Jim

111 Justice Cooper says, “Powers was brought to trial in March 1900.” Fletcher v. Graham, 192 S.W.3d 350, 385 (Ky. 2006) (Cooper, J., dissenting). Too many sources, including several cited in this dissent, tell us Justice Cooper was mistaken. See, e.g., Semi-weekly Interior Journal (Stanford, Ky.), July 10, 1900, at 3 (“Georgetown, July 9.—The case of Caleb Powers . . . was called today . . . .”).

-241- Howard faced a Franklin County jury that found him guilty of the same crime and

sentenced him to death. THE BOURBON NEWS (Paris, Ky.), Sept. 28, 1900, at 3.

As it turns out, Governor Taylor’s prediction was wrong. Both

appeals were decided after O’Rear took the bench. Jim Howard’s first conviction

was so error-filled it was unanimously reversed, and a new trial ordered. Howard

v. Commonwealth, 61 S.W. 756, 762 (Ky. 1901).112

But it is the appeal of Caleb Powers’ first of four trials that is most

relevant here. Powers v. Commonwealth, 61 S.W. 735, 736 (Ky. 1901)

(hereinafter Powers 2). The opinion in Powers 2 is entirely consistent with all the

jurisprudence discussed in this dissent from Taylor v. Commonwealth, decided in

1830, through and including George, Purnell, Poyntz, Sweeney 1, Sweeney 2, and

the state and the U.S. Supreme Court opinions, Taylor 1 and Taylor 2, respectively.

What is surprising is that Powers 2 was authored by Judge DuRelle,

the judge who disagreed with Taylor v. Commonwealth and who dissented in each

and every one of those other cases, beginning with George.

112 His conviction at his second trial was also reversed, but this time along party lines, with Judges Paynter, White, and Hobson dissenting. Howard v. Commonwealth, 70 S.W. 1055, 1060 (Ky. 1902). On his third appeal, after the defeat of Judges DuRelle, White, and Guffy, the conviction stood. Howard v. Commonwealth, 80 S.W. 211, 216 (Ky. 1904), aff’d sub nom. Howard v. Commonwealth of Kentucky, 200 U.S. 164, 26 S. Ct. 189, 50 L. Ed. 421 (1906).

-242- 32. DuRelle follows Kentucky jurisprudence—contradicting his past dissents

At Caleb Powers’ first trial, the circuit court rejected as invalid “a

pardon . . . , purporting to have been issued by W. S. Taylor, as governor of

Kentucky, dated March 10, 1900. . . . The simple production of a valid pardon of

the offense whereof appellant was charged would put an end to the proceedings,

and render void any proceeding thereafter taken in the trial.” Powers 2, 61 S.W. at

737. Because it was a legal question to be decided on undisputed facts reviewed

de novo, it was the Court of Appeals’ task “to decide the validity of the paper

produced as a pardon . . . .” Id. If, as DuRelle repeatedly said all along, the

“inherently vicious” Goebel Election Law was unconstitutional, the pardon would

be valid because Taylor would have been governor on March 10, 1900. Despite

four Republicans on the Court, DuRelle appears not to have had the votes for

declaring the law unconstitutional in Powers 2. Not even DuRelle urged such a

ruling in Powers 2, even though he began his analysis as if he would.

“[W]e must consider the situation at the time it was issued[,]” DuRelle

began. Id. It was, he said, “a period of political excitement and bitterness perhaps

unexampled in the history of the commonwealth.” Id. The race for governor was

hotly contested and the actions of government and its leaders were chaotic.

However, despite his previous dissents to the contrary, he said the General

Assembly’s actions were lawful:

-243- The state board of election commissioners, elected [by the General Assembly] under the act of March 11, 1898 [the Goebel Election Law], examined and canvassed the returns of election, and issued a certificate of election to W. S. Taylor. This gave a prima facie title to the office to Taylor, who accordingly was duly inaugurated as governor, took the oath of office, and took possession of the state building, and the archives and records appertaining to the office. This did not give him an absolute, indefeasible title to the office of governor, but his title was subject to be defeated by the determination of a contest for the office. . . . Until the certificate was set aside in some appropriate proceeding, he was entitled to retain possession and perform the duties of the office without interference. . . . A contest was instituted by Goebel before the legislature, and was pending at the time of the murder, as were also contests before the state board of contest for the minor state offices, certificates of election to which had been issued to the candidates upon the same ticket with Taylor. After the shooting, the militia was called out by Taylor, and the legislature prevented from meeting in the state capitol, and at certain other places at which they attempted to hold meetings. The records of the legislature show, however, that a meeting was held, at which it was determined by the legislature that William Goebel, and not William S. Taylor, had been elected governor of Kentucky, and that J. C. W. Beckham, and not John Marshall, had been elected lieutenant governor. After Goebel’s death, Taylor retained possession of the executive building, archives, and records, and continued to act as governor. Beckham opened an office in the Capital Hotel, a few blocks away from the capitol, which was called the “Governor’s Office,” and he also acted as governor. . . . So the question is narrowed to an inquiry as to who was de jure governor on March 10, 1900. The legislative record shows that the general assembly determined the contest. By the Goebel election law of March 11, 1898 (Ky. St. § 1596a, subsec. 11), that decision was a judgment determining the title to the office. It was a self-executing judgment: “When a

-244- new election is ordered or the incumbent adjudged not to be entitled, his powers shall immediately cease, and if the office is not adjudged to another it shall be deemed to be vacant.” If this judgment of the legislature was valid and final, it settles the question. In an opinion of this court, . . . in the case of Taylor v. Beckham . . . , it was said that the judgment of the legislature was final and conclusive. That decision settled the question finally, and the pardon must be adjudged invalid. The authorities upon this question are collated more fully in the opinion of Judge WHITE, who concurs upon this question.

Id. at 737–38 (emphasis added) (citations omitted). What DuRelle previously

called unconstitutional, he now called an “appropriate proceeding,” and he

declared that “the general assembly determined the contest” pursuant to the

“Goebel election law” which was ruled “valid and final . . . by this court,” thereby

“settl[ing] the question finally[.]” Id. at 738.

As DuRelle noted, Justice White, writing separately, explained that

the Court of Appeals was now unanimous on the issue of the constitutionality of

the Goebel Election Law. Seemingly satisfied that DuRelle had accepted the facts,

judicially, Judge White only cited Taylor 2, and not the jurisprudence leading up to

it and Taylor 1. But he held the Republican judges’ feet to the fire, listing what the

Court of Appeals “judicially knows” stating:

The court judicially knows that on the 31st day of January, 1900, the general assembly, in pursuance to the power given it under our constitution, decided the contest over the office of governor in favor of the contestant, William Goebel. The court knows judicially that on that day William Goebel was inaugurated as governor; that he

-245- afterwards died, and J. C. W. Beckham became, by virtue of the law, he being lieutenant governor, the acting governor from the 3d day of February, 1900. The court further knows that it was decided by this court, and its decision was sustained by the supreme court of the United States, that the courts had no jurisdiction in the matter; that the decision of the contest before the general assembly was final and conclusive, from which there was no appeal.

Powers 2, 61 S.W. at 748 (White, J., concurring, in part, and dissenting, in part).

Where the Republicans and Democrats on the Court differed was in

Caleb Powers’ claims of judicial error in jury selection, the admissibility of

prejudicial or incompetent evidence, and jury instructions. Id. at 738–47.

But where constitutional issues mattered, DuRelle honored the

doctrine of stare decisis and said Taylor 1 settled the question that, yes, the Goebel

Election Law was constitutional—the General Assembly was not prohibited by §

28 or otherwise from appointing members of the election contest boards. In a

matter of months, DuRelle would show he did not really mean it. For reasons

outside the realm of credible judicature, DuRelle would dishonor that doctrine of

stare decisis, and render a purely political decision that, 80 years later, became the

foundation of LRC v. Brown.

33. Political hope springs eternal in DuRelle’s message for Pratt

Just about a year before Powers 2 was rendered, the Franklin Circuit

Court held Clifton Pratt to be a usurper to the office of Attorney General, just like

-246- all the other Republican politicians ousted from the executive branch offices. But

Pratt reacted differently than the rest. By all accounts, he immediately moved on

with his life and that drew praise from Democrats. SEMI-WEEKLY INTERIOR

JOURNAL (Stanford, Ky.), May 1, 1900, at 3 (calling Pratt “a good lawyer . . .

sensible enough to get out”).

Republicans were split. Pratt’s fellow Hopkins Countians expressed

“just pride” in his “dignified, clean and high-toned professional conduct[.]” BEE

(Earlington, Ky.), Mar. 3, 1900, at 2. Other Republicans thought “Mr. Pratt’s

course may be one of wisdom, but those who voted him Attorney General think

differently. . . . [H]e should have fought with the tenacity of his bold and fearless

leader, Gov. Taylor. [Instead,] Mr. Pratt has proven himself not equal to the

demands of his times.” HARTFORD REPUBLICAN (Hartford, Ky.), May 4, 1900, at

3. Despite such criticism, Pratt neither left the company of Republicans nor

tempered his service to his party.

No doubt Pratt was aware of the political landscape in the summer of

1900 when ex-Governor Taylor was indicted for Goebel’s murder. By the end of

the year, Attorney General Breckinridge and Governor Beckham turned Taylor’s

extradition into a crusade. That and the hope that Republican judges soon would

dominate the Court of Appeals may have renewed Pratt’s interest in the office of

-247- Attorney General. And he had until April 16, 1902, to decide whether to appeal

the judgment that removed him from office. BULLITT’S CODE § 745, at 483.

One of Pratt’s advisors “prior to the election [of 1900] . . . suggested

to him, to which he fully agreed, to ask a reversal in his behalf” from the judgment

ousting him as Attorney General. BEE (Earlington, Ky.), Nov. 22, 1900, at 2. And

just three days after Judge O’Rear’s election, it was “leaked out that Judge Pratt is

going to take the proper legal steps to regain the Attorney Generalship. From

present indications his fight to that end will be successful . . . .” DAILY PUBLIC

LEDGER (Maysville, Ky.), Nov. 10, 1900, at 5. Success would have to come at the

expense of a large body of jurisprudence, and it did.

The following Monday, Pratt confirmed that “when O’Rear takes his

seat on the court of appeals bench, the first of January, he will take an appeal from

the judgment of the Franklin circuit court in the contest case for the attorney

generalship. . . . [H]e thinks he will have an easier time than his brethren” who

appealed before “Judge O’Rear’s accession [gave] the Republicans a majority of

that court.” HOPKINSVILLE KENTUCKIAN (Hopkinsville, Ky.), Nov. 13, 1900, at 6.

Some said, “Pratt has reason to hope that O’Rear will at the proper

time vote with Burnam, Guffy and Durelle to restore to him his rightful office.”

HARTFORD REPUBLICAN (Hartford, Ky.), Nov. 16, 1900, at 2. But is it possible that

jurists could be quite that overtly political? Sadly, it seems to be the case with

-248- DuRelle and with Ed O’Rear, too. Biographer, historian, and contemporary of

O’Rear, E. Polk Johnson, wrote of him in 1910 while O’Rear was still serving on

the Court of Appeals. Johnson said:

In politics Judge O’Rear has ever been uncompromising in his allegiance to the principles and policies of the Republican party and he has been a most able exponent of its cause. . . . Judge O’Rear is recognized as one of the leaders of the Republican Party in his native state and at the time of this writing (in 1910) his name is being frequently mentioned in connection with the candidacy for the office of governor of the state for the election of 1911.

2 KENTUCKIANS 814. He did run for Governor in 1911, while still on the bench,

but was defeated by the Democratic Party candidate, Governor James B.

McCreary. HARTFORD HERALD (Hartford, Ky.), Nov. 29, 1911, at 2. O’Rear’s last

opinion, Hall’s Adm’x v. Hall’s Adm’r, was rendered December 8, 1911, a month

after he lost the election for Governor. 141 S.W. 70 (Ky. 1911).

But, back to the days immediately following O’Rear’s 1900 election

to the Court. Hadn’t the jurisprudence become so settled that the hopes of a

political decision by the Court of Appeals reinstating Pratt as Attorney General

would be jurisprudentially impossible? Or too obviously partisan? After all, in

DuRelle’s opinion in Powers 2, the Court clearly and unanimously agreed on the

General Assembly’s constitutional power under § 93 to enact the Goebel Election

Law and to establish the process to lawfully determine who won the race for

governor. That included the General Assembly’s power to itself elect members of

-249- boards and commissions. Surely, then, the determination that Breckinridge won

the election for Attorney General must follow. But, never say never.

DuRelle, in the Powers 2 opinion itself, sent a message giving Pratt

and the Republican Party cause to think otherwise. DuRelle pointed out that

Taylor 1 was a decision “from which the writer of this opinion dissented

emphatically[.]” Powers 2, 61 S.W. at 738. Ignoring the fact that his dissent

expressed views about the nature of republican government rejected by the

Supreme Court of the United States in Taylor 2, something else DuRelle had to say

was more important to Pratt.

DuRelle disclosed in Powers 2 itself a private communication

between him and Judge O’Rear about his emphatic dissent in Taylor 1. DuRelle

wrote in Powers 2 that Judge O’Rear would have agreed with DuRelle’s Taylor 1

dissent and would have voted with him had he had been on the Court then instead

of Judge Hazelrigg. “[I]n the views of [DuRelle’s Taylor 1] dissent Judge O’Rear

concurs,” he said. Id.

That revelation is a little astonishing to me. Is there any reason for

telling the world how a new judge would have voted on the merits of an old case if

it was not to telegraph how that judge would vote if a factually similar case again

were to come before the Court?

-250- Undaunted by the jurisprudence, and perhaps even encouraged, Pratt

continued to press his appeal of the judgment ousting him from office. If he was

looking for a partisan decision, he seems never to have been vocal about it.

In fact, Pratt was going “to ask reversal in his behalf on questions of

law, about which the present court [before O’Rear’s election] had expressed no

opinion, growing out of the late election law.” BEE (Earlington, Ky.), Nov. 22,

1900, at 2. His attorneys were expected to raise “questions of law such that a

reversal, if had, might be concurred in by the whole court, without even seeming to

conflict with what had been decided in other cases under that law.” Id. And his

attorneys did make such arguments. But that did not foreclose the possibility that

DuRelle would reopen the wounds he felt when the reasonings of his dissents

could not persuade the past Court. Now it was a new Court, a different Court, a

Republican Court.

34. Pratt’s attorneys do not repeat arguments rejected in Purnell, Poyntz, et al

The Clerk of Court called the case of Pratt v. Breckinridge for two

days of oral argument beginning at 11:15 A.M. on Wednesday, September 24,

1901. BEE (Earlington, Ky.), Sept. 26, 1901, at 4. Pratt’s attorneys must have

presumed the futility of regurgitating the losing argument pressed in Purnell and

the many cases that followed that only the executive can exercise the intrinsically

executive power to appoint the election contest boards’ members. Pratt 1, 65 S.W.

-251- at 144 (Hobson, J., dissenting) (“[T]he power of appointment . . . does not in fact

arise in this case, nor was it made, as we understood, in the argument.”).

Rather, instead of arguing that the law encroached on the Executive

Department’s exclusive power of appointment, Pratt’s counsel said the law

encroached on the Judicial Department’s exclusive power to adjudicate the law.

The election contest boards exercised judicial power, they said, and “that by

section 109 [of Kentucky’s Constitution] the judicial power of the commonwealth

is vested in the courts established by the constitution, and that by section 135 the

legislature is forbidden to establish courts not provided for by the constitution.”

Pratt 1, 65 S.W. at 145. The issue was thus framed: “Was the grant by the statute

to the board of election commissioners of power to try contested elections a

violation of sections 109 and 135 of the constitution, as being the creation of a

court other than those established by the constitution? This presents a new

question, which could arise only under the new constitution.” Id. at 141–42. Oral

argument concluded on Thursday afternoon and the Court adjourned, apparently

having heard no argument that the General Assembly lacked the power to make

appointments.

35. Oral argument to rendition—much was riding on Pratt v. Breckinridge

Less than a week passed after oral argument when the Frankfort Chief

of Police accompanied two attorneys to Indianapolis to deliver to Indiana’s new

-252- governor, Winfield T. Durbin, a second set of requisition papers for the extradition

of ex-Governor Taylor. EVANSVILLE JOURNAL (Evansville, Ind.), Sep. 28, 1901, at

3; THE COURIER-JOURNAL ALMANAC FOR 1902, at 33 (1902). The Chief of Police

was “Arthur Goebel, brother of the late William Goebel[.]” Id.

As a courtesy, Governor Durbin spent two hours with the Kentucky

representatives but sent them away without an answer. DAILY JEFFERSONIAN

(Cambridge, Ohio), Oct. 23, 1901, at 1. On November 2, 1901, before the Court of

Appeals rendered Pratt 1, Governor Durbin wrote a long letter to Governor

Beckham. Letter from Winfield T. Durbin to J.C.W. Beckham (Nov. 2, 1901) in

MESSAGES AND DOCUMENTS OF WINFIELD T. DURBIN, GOVERNOR OF INDIANA,

1900–1902, at 49–53 (1902). Like his predecessor in office, Governor Durbin also

made national news by refusing to turn Taylor and Finley over to Kentucky

authorities. See, e.g., EVENING STAR (Washington, D.C.), Nov. 5, 1901, at 14.

Because Governor Durbin’s refusal supported a facially plausible

claim that Indiana’s chief executive officer violated Article IV § 2, cl. 2 of the

Federal Constitution, Governor Beckham spoke openly of bringing a federal

lawsuit against the State of Indiana. DAILY PUBLIC LEDGER (Maysville, Ky.), Nov.

23, 1901, at 3. Of course, that might not happen if Pratt prevailed in his appeal.

An attorney “who represented Goebel, Beckham and the other

Democratic officers,” told reporters that if Clifton Pratt were Attorney General, he

-253- could “‘block any proceedings brought in the Federal Court to return Taylor and

Finley to Kentucky. Representing the Commonwealth, he can go to the Federal

Court and ask that the action be dismissed.’” Id. Helm Bruce, who represented

Taylor before the Supreme Court of the United States, added that “[i]f the cases of

Caleb Powers and Jim Howard are again carried to the Court of Appeals, Mr. Pratt

as the Attorney General will have the complete conduct of those cases for the state

in the higher Court.” Id. A lot was riding on the opinion in Pratt v. Breckinridge.

36. From the ashes of DuRelle’s dissents—Pratt v. Breckinridge

The appeal Pratt brought, as in at least six appeals before it, “called in

question the validity of the election law of 1898[.]” Pratt 1, 65 S.W. at 136. Yes,

Pratt challenged the same Goebel Election Law held constitutional again and again

in Purnell, Poyntz, Sweeney 2, and Taylor 1 and Taylor 2, and even in the opinion

DuRelle himself authored just eight months earlier, Powers 2. But the argument

Pratt’s lawyers made—the law violated §§ 109 and 135—was new. It challenged

the law on the ground that the election contest boards were courts exercising

judicial functions strictly reserved to the Judicial Department. Pratt’s argument

thus left “only the question of the authority of the legislature to confer upon the

board the power to hear the contest, and on this question the counsel for

appellant . . . mainly rested their case.” Pratt 1, 65 S.W. at 144 (Hobson, J.,

dissenting).

-254- The majority opinion would eventually get around to ruling favorably

on Pratt’s argument, and that is how the journalists reported the decision. See, e.g.,

HARTFORD HERALD (Hartford, Ky.), Nov. 27, 1901, at 2 (“Court of Appeals holds

that the statute giving the commission power to try contested elections is a

violation of Section 109 and 135[.]”). But whether the goal was simply putting a

Republican in the Attorney General’s office or advancing DuRelle’s § 28-based,

judicial empowerment agenda, the opinion’s initial focus is not at all the argument

Pratt’s attorneys advanced. More than Pratt’s argument motivated the Court.

We must scrutinize Pratt 1 with eyes wide open, not squinting as the

LRC v. Brown Court viewed it.113 Relatively contemporary scholarship saw Pratt

1 for what it is. It was cited, for example, in a 1931 Yale Law Journal article as

proof that sometimes a judge “cannot separate his judicial capacity from himself

and his normal mental processes; his view as to what ought to be is inseparable

from his determination of what is to be.” Dodd, Extra-Constitutional, supra, 1211.

Professor Dodd then pointed directly to Pratt 1’s political motives, saying, “[O]ne

would expect judges as well as others in the community, to be influenced by their

113 The Court in LRC v. Brown at least acknowledged the “volatile atmosphere in the Commonwealth tha[t] had existed in Pratt” and urged “those who desire to learn more of the political atmosphere” to read James Klotter’s DECADES. LRC v. Brown, 664 S.W.2d at 922, 922 n.20. My acceptance of that invitation led to this dissent.

-255- political opinions. That this is occasionally the case may appear from Pratt v.

Breckinridge . . . .” Id. at 1218 n.106.

Unquestionably, those who decided Pratt 1 were affected by partisan

politics, but that merely describes the Court’s motivation and does not justify

rejecting the case out-of-hand. Such obvious political motives compel special

scrutiny because even an opinion driven by partisanship may still be consistent

with our jurisprudence. Pratt 1 is not such a decision.

37. Pretense to authorship; pretense to honoring existing jurisprudence

Judge Guffy took credit for authoring Pratt 1, although contemporary

reports expressed “doubt about authorship” of the opinion. COURIER-JOURNAL

(Louisville, Ky.), Nov. 21, 1901, at 1. I am beyond doubting that Judge DuRelle

was the intellectual force behind the opinion. Pratt 1 parrots the exact language

DuRelle used in his Purnell dissent to describe the Goebel Election Law—that the

law was “inherently vicious, as an invasion by the legislature of the powers of the

executive.” Compare Pratt 1, 65 S.W. at 137 with Purnell, 50 S.W. at 264

(DuRelle, J., dissenting). After that, Pratt 1 foists upon bench and bar, once again,

DuRelle’s Thomas Jefferson myth:

The provisions embodied in sections 27 and 28 of the constitution, and which, in substantially the same words, have been embraced in every constitution of the state, were drawn by Mr. Jefferson as an improvement upon the provision of the federal constitution, designed by him to insure a more perfect separation of the powers of the three

-256- great departments of government than was secured by that instrument, and their adoption by the convention was accomplished by the power of his name . . . .

Pratt 1, 65 S.W. at 137 (emphasis added). Ignore the irony that, to secure judicial

power lying dormant for a century in the unchanging language now found in § 28,

the Republican judges invoked the gravitas of the founder of the Democratic-

Republican Party, forerunner of the modern Democratic Party. That irony aside,

DuRelle and his ghost writer Judge Guffy repeatedly invoked the judicial power

they believe implicitly resides in § 28.

For example, there is this misleading representation: “The congress

of the United States, deriving its authority from a constitution which does not

contain the inhibition of section 28 of the Kentucky constitution, has never passed

an act which created an office, and at the same time filled it.” Pratt 1, 65 S.W. at

137. This is misleading because, as discussed in Section 7, supra, the Federal

Constitution’s Appointing Power Clause specifically limits the entities in which

Congress may vest appointment power, and the list does not include Congress

itself. U.S. CONST. art. II, § 2, cl. 2. But neither § 93 nor its 1850 antecedent

(CONST. OF KY. of 1850, art. III, § 25) ever limited the Kentucky General

Assembly as to which entity it may vest appointment power. To the contrary, our

constitutional jurisprudence has forever abided by the rule that “it was not

necessary that the Legislature . . . be expressly authorized by the Constitution to

-257- enact such a law [any law, in fact, including one that both creates a board and

elects its members,] but that it was a sufficient delegation of such power to it that

the Constitution does not prohibit it[.]” DuBois Adm’r v. Shannon, 122 S.W.2d

103, 106 (Ky. 1936). Following that principle and applying § 93’s antecedent

(CONST. OF KY. of 1850, art. III, § 25), and undoubtedly mindful of the existence of

the antecedents of §§ 27 and 28 (CONST. OF KY. of 1850, art. I, §§ 1, 2), Kentucky

long ago expressly said the General Assembly itself possesses the power to elect

inferior officers. Speed v. Crawford, 60 Ky. 207, 211 (1860).

When Pratt 1 is examined closely, it reveals itself as a masterpiece of

chicanery. In addition to the Jefferson myth and the sleight-of-hand comparison

with the Federal Constitution that diverts our attention from the Appointing Power

Clause, there are false presumptions we today accept as truth.

The opinion says, since the day of Kentucky’s statehood, “the spirit of

each successive change in the organic law of the commonwealth [has] been in the

direction of more strictly limiting the legislative power.” Pratt 1, 65 S.W. at 139.

But the 1849 Constitutional Convention unquestionably proves that statement

false. In Section 4, supra, I touch upon my conviction that the 1890 Constitutional

Convention was not inordinately focused on cabining in the General Assembly’s

-258- power, and the proof of that is in the pudding. The Goebel Election Law is but one

example.114 One can disagree, of course.

But whether we accept James Proctor Knott’s informed explanation

that the 1890 convention was called to assure all of government is restrained,115

two facts remain beyond dispute: (1) this newest version of our organic law did

not alter the language of the separation-of-powers provisions or the century of

jurisprudence interpreting them; and (2) not one thing occurred since 1792 or at the

1890 convention itself suggesting § 28 had been secreting away, for more than a

century, a judicial power just waiting for Judge DuRelle to discover.

DuRelle’s “discovery” is the focus of the first three-fourths of the

majority opinion in Pratt 1, notwithstanding it appears not to have been argued by

Pratt’s attorneys. Despite being deemed “finally settled” by DuRelle himself in

Powers 2, the issue whether the Constitution authorized the General Assembly to

appoint election board members was revisited, ignoring that these members were

114 As discussed in Section 4, infra, Governor Willson’s 1910 State of the Commonwealth Address demonstrates his personal belief there was no change in the General Assembly’s strength since the shift in appointment power from the Executive to the Legislative Departments in the 1850 Constitution. If reining in the General Assembly was a goal of the 1890 Convention, it failed dramatically. 115 See Section 4, supra, discussing Fiscal Court of Jefferson County v. City of Louisville, 559 S.W.2d 478 (Ky. 1977), and its misquoting of James Proctor Knott from the 1890 Constitutional Convention. See also I DEBATES (1890) (Remarks of Mr. Hendrick) (“We are limiting the powers of all Departments . . . .”); II DEBATES (1890) 1684 (Remarks of Mr. Hopkins) (“Judicial reform was one of the main questions that was contemplated in the calling of this Convention.”).

-259- previously and “regularly adjudged by this court to be entitled to the office.” Pratt

1, 65 S.W. at 144 (Hobson, J., dissenting) (citing Poyntz v. Shackelford, 54 S. W.

855). Before even getting to Pratt’s “election-contest-board-is-an-unconstitutional-

court” argument, the DuRelle/Guffy majority opinion said the law violated § 28.

This might all be deemed dicta running contrary to established jurisprudence

because the substance of the holding is, as the newspapers reported it, that the law

violates §§ 109 and 135. But the Court went out of its way to expressly reverse

George, Purnell, Poyntz, and Sweeney 2. The analysis to justify doing so is

underhanded and not worthy of respect. It begins right after the retelling of the

Jefferson hoax.

From the start, the majority knew it had to slay a giant of Kentucky

jurisprudence—Taylor v. Commonwealth, 3 J.J. Marsh 401, 26 Ky. 401 (1830),

There is no need to repeat what was thoroughly discussed about Taylor’s national

significance in Section 12, supra, but only to summarize its two important

doctrines: (1) while appointment power is intrinsically executive in nature, (2)

appointment power, like the power to elect representatives, resides first with the

People who may delegate it constitutionally to any department of government,

expressly to the Executive or Judicial Departments, but otherwise inherently to the

Legislative Department as among its plenary powers unless withheld by express

-260- prohibition. This was Kentucky’s undoubted jurisprudence from 1830 until Pratt 1

pretended it wasn’t. See Section 12, supra.

So, how did DuRelle/Guffy get around Taylor v. Commonwealth? By

simply ignoring the second doctrine. It had to be ignored because it directly

contradicted DuRelle’s ideal of a “perfect separation of the powers of the three

great departments of government[.]” Pratt 1, 65 S.W. at 137. Ignoring the second

doctrine was also necessary to the telling of another DuRelle falsehood about the

Kentucky framers’ intentions—“The framers of the constitution . . . deemed it

necessary to expressly permit the legislature to exercise the executive power of

appointment . . . [and] forbid[ding] the legislature to exercise such power in any

other case.” Pratt 1, 65 S.W. 137 (emphasis added). Express permission is not

necessary for legislative action as has been said often enough to eliminate the need

for more citation here.

By discussing Taylor v. Commonwealth’s first doctrine alone, the

majority could say, with some legitimacy as far as it went, that “[t]his doctrine has

been quoted and followed by many courts of last resort. Until the legislation of

1898 was under consideration, it seems never to have been disapproved in this

state[.]” Id. The majority continues its deception with cites to Harcourt and

Gorham and Applegate, all of which follow both of Taylor v. Commonwealth’s

doctrines. See Section 12, supra. But Pratt 1 ignores that inconvenient part of

-261- those opinions, too, maintaining focus only on the first doctrine—that appointment

power is intrinsically executive. Pratt 1 wraps up discussion of these Kentucky

cases with a conclusory syllogistic juxtaposition—“The legislature has no more

power to elect or appoint such officers than it has to enact a law providing the

judgment to be entered in a pending litigation.” Id. at 138. We need not be fooled.

Tellingly, the Pratt 1 majority avoided citing Speed v. Crawford, 3

Met. 207, 60 Ky. 207 (1860). Speed reviewed a circuit court judgment that a law

vesting a judicial officer with power to appoint members of a police board was

unconstitutional on three grounds. Id. at 209. The Court of Appeals agreed with

one of the three grounds but reversed the judgment to the extent it held the General

Assembly lacked the constitutional authority to grant that appointment power (a §

93 argument) and to the extent it held the law violated the separation-of-powers

provisions (a § 28 argument).116

The Court said the antecedent of § 93 (CONST. OF KY. of 1850, art. III,

§ 25) empowered the General Assembly to determine appointment power; the

positions on the police board “may be appointed by the governor, or by any

judicial officer to whom the legislature might see fit to delegate the power of

116 The Court of Appeals “concur[red] with the circuit judge” only to the extent “that the act fails to comply with the requirements of the constitution, in providing for a tenure of office, unknown to that instrument . . .” (a § 51 argument). Speed, 60 Ky. at 213 (citing CONST. OF KY. of 1850, art. 6, § 6).

-262- appointment.” Speed, 60 Ky. at 213 (emphasis omitted). The parties and this

Court reviewing the instant appeal have conflated the idea of appointments and

elections, to no real harm or confusion, but Speed made the distinction. In doing

so, the Court expressly identified the power of the General Assembly to select all

inferior officers (by election) other than those expressly identified in the

Constitution. “Wherever the selection of an officer is referred to the governor or

other functionary it is called an appointment, and wherever such selection is

referred to the people, or to an organized body (as the legislature, for instance), it

is called an election.” Id. at 211 (emphasis original; double emphasis added).

In Speed, the circuit judge made the mistake of seeing the separation-

of-powers argument as DuRelle did, and the Court of Appeals reversed him for it.

That circuit court judgment said empowering a judicial officer with appointment

power was “in conflict with the constitution . . . [i]n conferring upon [a judicial

officer] powers which are essentially executive . . . .” Id. at 209. Rather than lay

out a full analysis itself, the Court of Appeals gave the circuit judge and the

parties’ lawyers a reading assignment. Alluding to the antecedent of § 28 (CONST.

OF KY. of 1850, art. I, § 2), the Court said: “For a satisfactory exposition of the

clause of the constitution on which this objection is founded, we refer to the

commentaries on the constitution of the United States by Judge Story, and

especially to the chapter on the ‘distribution of powers.’ (Sec. 517, etc.).” Speed,

-263- 60 Ky. at 214 (referencing 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES § 518117 et seq., at 363 (2d ed. 1851) (hereinafter STORY

(1851)). That chapter includes the following enlightening passages, all of which

are entirely consistent with Taylor v. Commonwealth and George and its progeny,

and contrary to DuRelle’s view:

[W]hen we speak of a separation of the three great departments of government, and maintain, that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. . . . The true meaning is, that the whole power of one of these departments should not be exercised by the same hands, which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free constitution. This has been shown with great clearness and accuracy by the authors of the Federalist. [citing by footnote FEDERALIST NO. 42 (James Madison)] . . . . [Both] Montesquieu and Blackstone . . . embraced this division of powers in a general view; but which, at the same time, established an occasional mixture of each of the others . . . .

Notwithstanding the memorable terms, in which this maxim of a division of powers is incorporated into the bill of rights of many of our state constitutions the same mixture will be found provided for, and indeed required . . . . Thus, the governor of Massachusetts exercises a part of the legislative power, possessing a qualified negative upon all laws. . . . In New Jersey, the governor is appointed by the legislature . . . . In Virginia the great mass of the appointing power is vested in the legislature.

117 The Court appears to have miscited the beginning of the chapter entitled “Distribution of Powers” (Chapter VII) as § 517 instead of § 518.

-264- Indeed there is not a single constitution of any state in the union, which does not practically embrace some acknowledgment of the maxim, and at the same time some admixture of powers constituting an exception to it. [citing by footnote FEDERALIST Nos. 47, 48 (James Madison)].

1 STORY (1851) §§ 525–27, at 368–70.

“The authors of the Federalist thought this subject a matter of vast

importance,” said Judge Story, “and accordingly bestowed upon it a most elaborate

commentary.” Id. at § 529, at 371. He said the reason for devoting such time and

effort to the concept was that the Anti-federalists made this “a special objection to

the constitution of the United States, that though it professed to be founded upon a

division of the legislative, executive, and judicial departments, yet it was really

chargeable with a departure from the doctrine . . . .” Id. § 528, at 370.

Lawyers and jurists of Judge Story’s day were steeped in THE

FEDERALIST and that likely led him to believe, “[a]t the present time, the objection

may not be felt as possessing much practical force, since experience has

demonstrated the fallacy of the suggestions on which it is founded.” Id. (corrected

for punctuation). But what about a future day? What would change if THE

FEDERALIST became merely optional reading for law students?

What about those advocates in Judge Story’s future who, from want of

knowledge or desire for power or some other failing, saw benefit in reviving the

Anti-federalist argument? Judge Story, no doubt, had in mind such lawyers as

-265- DuRelle when he acknowledged that “the objection may be revived . . . by the

opinions of ingenious minds, dazzled by theory, and extravagantly attached to the

notion of simplicity in government[,]” or Judge Thomas who analogized our

government as a simple three-legged stool. Id. § 529, at 371. Story suggested the

cure for that ill was “to recur to some of the reasoning by which those illustrious

statesmen who formed the constitution, while they admitted the general truth of the

maxim endeavored to prove, that a rigid adherence to it in all cases would be

subversive of the efficiency of the government, and result in the destruction of the

public liberties.” Id. That is to say, the cure was, and still is, to again become

steeped in THE FEDERALIST.

With some degree of faith that the circuit judge and the lawyers would

swallow the medicine Judge Story prescribed to read the Framers’ masterworks,

Speed wrapped up this part of its decision by saying how ludicrous the argument

was for this strict construction of the separation-of-powers provision: “A

construction which would deny to the legislature the right” to grant power to make

appointments to a non-executive functionary simply because appointments “are in

their nature strictly executive, would greatly embarrass, if it did not defeat, to some

extent, the practical workings of our system.” Speed, 60 Ky. at 214. In a practical

sense, to give credence to Pratt 1 as sound jurisprudence is to deny it to Speed.

Speed, then, must also be considered reversed by Pratt 1, like so many other cases

-266- forming the foundation of Kentucky constitutional jurisprudence in the 19th

century.

Another Kentucky opinion, not cited in Pratt 1 but implicitly and

necessarily reversed by it, is Pennington v. Woolfolk, 79 Ky. 13 (1880). It is an

early case in which an attorney not steeped in THE FEDERALIST but who, with an

“ingenious mind[], dazzled by theory, and extravagantly attached to the notion of

simplicity in government,” argued for the strict and perfect separation of powers

DuRelle found quietly lingering in § 28.

The appellant, Pennington, challenged a law granting the county court

power to summon before it any property owner to determine whether he failed to

list his property to be taxed and “to assess and fix the value of the same for the

years such property was not assessed, and the same shall be certified by the said

court to the proper officers for the collection thereof.” Id. at 14–15 (emphasis

omitted). “The objection taken to the act in this case is, that by it the Legislature

has attempted to confer on a judicial tribunal a power not judicial in its nature [the

legislative power to impose taxes], in violation of article one of the Constitution,”

after which the Court quotes in their entirety the antecedents of §§ 27 and 28,

CONST. OF KY. of 1850, art. I, §§ 1, 2. Id. at 15–16.

Sadly, but perhaps predictably with the passage of time, the

Pennington Court does not cite Speed (from 2 decades before), or Judge Story’s

-267- Commentaries (from 3 decades before), or THE FEDERALIST (from 9 decades

before). What carried the day for the law’s constitutionality was that by 1880 these

principles, so clearly articulated in those authorities, were baked into our

constitutional jurisprudence.

The Court chose “to look to the practical construction uniformly given

to [the separation-of-powers provisions] since the formation of the government.”

Id. at 16. After examining that history, the Court said:

Whatever doubt we might otherwise have of the power of the legislature to confer upon the county court powers which are not judicial, must yield to the authority of the long continued practical construction to be found in the statute to which we have referred, and which have been acquiesced in by the bar and all departments of government for more than three quarters of a century.

Since some of these statutes were enacted, the constitution has been twice amended and re-adopted. The conventions must be presumed to have been well acquainted with the fact that these non-judicial powers had been conferred by various acts, and were being exercised by the county courts, and the re-adoption of the first article [what later becomes §§ 27 and 28] in the very words of the former constitutions was a virtual recognition of the validity of the statutes by which these powers had been, from time to time, conferred.

Id. at 19 (emphasis added).118 It will be recalled from Section 4, supra, that the

1890 convention delegates shared such a common understanding of what the

118 The law was found unconstitutional for an entirely different reason. In a case previous to Pennington, “it was contended that the statute is unconstitutional, because the title does not

-268- separation of powers provision meant that they simply reiterated in § 27 and § 28

the unchanging language of their antecedents without debate.

Again, however, DuRelle/Guffy did not dare cite Speed or

Pennington, so let us return to the authorities Pratt 1 did cite.

Pratt 1’s deception continues with citations from our sister states,

starting with State ex rel. Attorney General v. Kennon, 7 Ohio St. 546 (1857), in

which the Ohio court said the legislature could create a board—an exercise of

legislative power—, but could not exercise an executive power to appoint its

members. Id. at 562–63. Again, Pratt 1 failed to tell the whole story that, unlike

Kentucky’s Constitution, Ohio’s Constitution expressly prohibited its legislature

from making appointments. Id. at 556 (“but no appointing power shall be

exercised by the general assembly, except as prescribed in this constitution”

(emphasis in original) (quoting CONST. OF OHIO of 1851, art. 2, § 27)). Plenary

power enjoyed by all legislatures in a tripartite republican system can only be

stifled in two ways: (1) by express prohibition to its exercise as in Ohio; or (2) by

implied prohibition by the constitution’s vesting of the power in a different

department. Otherwise, that plenary power remains, uninhibited, to be exercised

indicate the subject of the act . . . . In this case the point there made is not relied upon. If, however, we find the act constitutional in other respects, it will become necessary to decide whether the title is insufficient, because if, for that reason, the act is void, the county court had no jurisdiction, even to entertain the proceeding.” Pennington, 79 Ky. at 15. After finding the law constitutional in other respects, the Court said, “the act must be held unconstitutional because its subject is not expressed in the title.” Id. at 20.

-269- by the Legislative Department. Neither express nor implied restriction to the

power of appointment of members of such boards as the Fair Board can be found

in Kentucky’s Constitution.

Another part of Kennon the majority opinion in Pratt 1 omits is the

passage that reveals that these Ohio jurists, unlike DuRelle and Guffy, understood

what Judge Story explained. The Ohio jurists laid out the fallacy of DuRelle’s

“perfect-separation-of-powers” idea right there in Kennon:

under a constitution in which the philosophical theory of a division of the powers of government into legislative, executive, and judicial, should be exactly carried out in detail, the power of prescribing the manner of making appointments to office would fall naturally and properly to the legislative department; while the power to make the appointments themselves would fall as naturally and properly to the executive department. This exact adherence to theory, however, is seldom if ever found in any frame of government . . . .

Id. at 560–61 (second emphasis added). It was not “exact adherence” to the

separation of powers that yielded Kennon’s result as DuRelle might have us

believe; it was the Ohio Constitution’s express prohibition that did.

Similarly, citing Langenberg v. Decker, 31 N.E. 190 (Ind. 1892) for

an interpretation of a strict separation of powers, Pratt 1 again failed to paint a

complete picture. The issue in Langenberg was whether an executive branch

agency, the state board of tax commissioners, could exercise power that is

intrinsically judicial in nature. Id. at 193. Pratt 1 withheld from its discussion of

-270- Langenberg that the Indiana court also said just because the board “is a body

belonging to the executive or administrative department of the government it by no

means follows that it may not perform functions which are, in their nature,

judicial.”119 Id. at 193–94. This is entirely consistent with both doctrines

established in Taylor v. Commonwealth.

The majority opinion had a predictable answer to the cases rendered

“in other states in which a different view is taken of this question” and followed all

of Taylor v. Commonwealth. Pratt 1, 65 S.W. at 138. That answer? Those cases

“arose under a constitutional provision which provided merely that ‘the legislative

and executive and judicial powers of government ought to be forever separate and

distinct from each other,’—a provision containing no express inhibition, but

merely a declaration as to what was proper.” Id. at 139. The explanation that

those states were not blessed with DuRelle’s imagined perfect separation-of-

powers provisions cunningly posits elements of red herrings and straw men.

Such selective citation to foreign cases was intended to give the

impression that Pratt 1 is squarely in the mainstream. But that too is false.

119 What the legislature could not do in Indiana was confer contempt powers on the executive branch agency. “[T]he power to punish for contempt belongs exclusively to the courts, except in cases where the constitution of a state expressly confers such power upon some other body or tribunal. Our state constitution confers such power upon the general assembly, but upon no other body. The doctrine that such power rests with the courts alone is based upon the fact that a party cannot be deprived of his liberty without a trial.” Langenberg, 31 N.E. at 194 (Ind. 1892).

-271- Not long after the Court of Appeals rendered Pratt 1, the Arizona

Supreme Court entertained the argument DuRelle had been urging, “that an

appointment to office is an executive function, and therefore properly belongs to

the executive department.” Dunbar v. Cronin, 164 P. 447, 449 (Ariz. 1917). The

Arizona court surveyed opinions in all state courts and determined there were two

views—(1) appointment power is an intrinsically executive power and can only be

exercised by the executive; and (2) unless retained by the People from whom it

originates, and unless expressly delegated in the constitution to the executive or

judicial branch, it is a power left to the legislature. Id. at 449–50 (“Where the

people have not provided [in the Constitution] for the manner of filling offices

newly created, or vacancies in office, they have left to the Legislature, as their

representatives, such duties.”). The results were quite lopsided.

“The view that appointment to office is purely and [sic] executive

function to be exercised only by the executive department of government is taken

by only two states,” and cited Pratt 1 as one of them. Id. at 451 (citing Pratt 1 and

State ex inf. Hadley v. Washburn, 67 S.W. 593 (Mo. 1902)). The Tennessee

Supreme Court previously made the same observation as the Arizona court, saying,

“[S]o far as our investigations have extended, the courts of Missouri and Kentucky

stand alone in adhering strictly to the doctrine of the exclusive right of the

executive to exercise the appointing power, in the absence of constitutional

-272- provisions vesting it otherwise.” Richardson v. Young, 125 S.W. 664, 671 (Tenn.

1910). Recognizing them to be so much in the minority, the Tennessee court

“d[id] not think it is necessary . . . to review these cases.” Id.

According to the Arizona Court, thirteen states ascribed to the second

view. Interestingly, one of the Kentucky opinions Pratt 1 expressly reverses,

George, is listed among the thirteen. Dunbar, 164 P. at 450 (citing George and

opinions from Alabama, California, Georgia, Indiana, Idaho, Michigan, Nevada,

New York, North Carolina, New Jersey, Oregon, and Rhode Island).

A similar survey in 2005 again surveyed these competing views and

reached a similarly lopsided conclusion.

[I]n the great majority of our sister states in which the question has been presented, the courts have held that under their respective state constitutions the power to appoint executive officers is not an exclusively executive function that may be exercised only by the Governor or another executive official, but rather is a power that may be exercised—either in general or in appropriate circumstances—by the Legislature.

Marine Forests Soc’y v. Cal. Coastal Commonwealth, 113 P.3d 1062, 1085 (Cal.

2005) (listing 24 states120 following the view stated above). “Of the minority of

state cases that reach a contrary conclusion, some (albeit not all) are based upon

120 Those twenty-four states are Alabama, Arizona, Arkansas, Connecticut, Delaware, Georgia, Idaho, Illinois, Kansas, Louisiana, Maryland, Michigan, Minnesota, New York, Nevada, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Wisconsin.

-273- language in a particular state constitution that explicitly grants the Governor a

broad right to appoint executive officers or that explicitly prohibits the Legislature

from making such appointments.” Id. at 1086 (identifying LRC v. Brown as among

that “albeit not all” category).

Unquestionably, neither Pratt 1 nor LRC v. Brown represents the

mainstream of American jurisprudence nor, for that matter, the mainstream of

Kentucky jurisprudence if closely examined. The Pratt 1 dissenters did their best

to point that out.

38. The Pratt 1 dissents

There were two dissents in Pratt 1. The first, by Judge Hobson, began

by accurately noting the bipartisan decision in George already determined “under

our constitution the legislature [itself] may be empowered by law to elect

subordinate officers for the state government not named in the constitution.” Pratt

1, 65 S.W. at 143 (Hobson, J., dissenting) (citing George). Consistent with the

jurisprudence discussed in this dissent, Hobson correctly said the holding in

George “is in accord with the great weight of authority, and the settled practice in

the state, long recognized by this court.” Id. (citing Taylor v. Commonwealth, 26

Ky. 401 (1830)). In a refreshingly honest assessment why this divergence of the

majority opinion was happening, Judge Hobson said it was simply “a change in the

constitution of the court” that turned the jurisprudence on its head. Id. at 149.

-274- Hobson gave examples of “[t]he legislature . . . elect[ing] not only the

librarian, but the warden of the penitentiary[.]” Id. He wondered, rhetorically,

whether Pratt 1 meant those elections would be unconstitutional, too. Of course,

they must be. Or so the press believed. As one Kentucky editor said:

The decision reverses interpretations given statutes for the last half century. The effect of it is beyond estimation. Under it, it is doubtful whether the General Assembly has the power to, at its coming session, elect two members of the State Prison Commission to succeed the two retiring officials.

MOUNT VERNON SIGNAL (Mount Vernon, Ky.), Nov. 22, 1901, at 3; EVENING

BULLETIN (Maysville, Ky.), Nov. 25, 1901, at 3 (“Many of the candidates for

Prison Commissioner and State Librarian are wondering . . . if the opinion . . .

means that the Legislature has no power to elect any of these officers.”). It was not

doubtful at all, as it turns out.

The General Assembly took no heed whatsoever of Pratt 1. On

Saturday, March 1, 1902, the Speaker of the House of Representatives made an

announcement and call of a joint session of the General Assembly, scheduled for

Monday, March 3, 1902, for “the election of two State Prison Commissioners to

succeed the incumbents . . . .” JOURNAL OF THE REGULAR SESSION OF THE HOUSE

OF REPRESENTATIVES OF THE COMMONWEALTH OF KENTUCKY [COMMENCING

JANUARY 7, 1902] 632–33 (1902) (hereinafter HOUSE JOURNAL (1902)). No

member of the Executive Department pursued a writ of prohibition based on Pratt

-275- 1 to stop the Legislative Department’s exercise of power to fill those offices. As

scheduled, on March 3, 1902, the General Assembly elected James Richardson and

Edwin Finnell to succeed the two retiring commissioners. Id. at 647–50.

The Executive Department officers, obviously including the

Governor, never tried to stop the elections by the General Assembly of these

commissioners or of the State Librarian. When the General Assembly met for the

first time “in the beautiful new State House” in 1910, it conducted business as

usual and elected the librarian and the commissioners. JOURNAL OF THE REGULAR

SESSION OF THE SENATE OF THE COMMONWEALTH OF KENTUCKY [COMMENCING

JANUARY 4, 1910] 3, 459, 1509 (1910) (hereinafter SENATE JOURNAL (1910)). The

General Assembly ignored Pratt 1 and kept right on following George, electing

Penitentiary Board commissioners and State Librarians session after session. It

seems the Legislative Department considered the Judicial Department opinion that

appointments were reserved to the Executive Department just so much nonsense.

Hobson’s dissent then turned to a more elaborate explanation than

Pennington v. Woolfolk gave us of the maxim of contemporanea exposition

(contemporaneous construction by the departments of government). Id. at 144–49.

It was obvious to Hobson that Pratt’s attorneys were aware of the maxim and its

harmony with such recent opinions as Poyntz v. Shackelford, and all of this “[wa]s,

in effect, conceded by the majority opinion[.]” Id. at 144. Because Pratt’s

-276- attorneys never raised the losing argument that only the chief executive possessed

appointment power, Hobson found it “difficult to perceive why the court discussed

at such length, or undertook to determine, a question not before it.” Id. Judge

White and the Chief Justice, Judge Paynter, concurred.

Judge Hobson’s dissent was strong, but it was Chief Justice Paynter’s

dissent that drew most of the press. See, e.g., EVENING BULLETIN (Maysville, Ky.),

Nov. 23, 1901, at 3 (calling Paynter’s dissent “salty” and printing it in toto);

CRITTENDEN PRESS (Marion, Ky.), Dec. 05, 1901, at 2 (“a scorching separate

dissenting opinion . . . [of] Judge Paynter”). Writing a day after the majority

opinion was rendered, Paynter called that opinion “an unfortunate one, and far–

reaching in its consequences and effect.” Pratt 1, 65 S.W. at 151 (Paynter, C.J.,

dissenting). In summary, he said:

It unsettles the law which had been settled in the state by numerous decisions, ranging over a period of 50 years, and it is in disregard of the interpretation which every branch of the government has given the constitution for that period. It is revolutionary in character. It is such opinions as this that bring reproach upon courts.

Id. Paynter supported that summary by citing dozens of opinions, in addition to

those expressly reversed, that the majority simply ignored. Id. at 150. He further

supported it by calling out each of the four judges of the majority, revealing their

hypocrisy by identifying opinions they authored or in which they concurred that

expressed diametrically opposite views just a few years earlier.

-277- Paynter saw that the Pratt 1 majority opinion was about to paint the

Court into a corner. There were other cases on the docket that would have to fit

this freakish new jurisprudential paradigm. It would not be easy to thread the

needle of ruling on the many cases in the court’s pipeline that would raise the issue

again in the context of the local election contests. Perhaps the majority had not

thought that far ahead. But Chief Justice Paynter had. He said:

It was conceded by counsel for appellant on the argument, and was not denied on consideration of the case, nor is it in the opinion delivered, that if the general assembly has not the constitutional authority to create a contest board composed of state officers, or a state board of election commissioners, to try a contest as to state offices and other contests, it has not the constitutional authority to create a contest board composed of county officers or of county election commissioners to try a contest over county offices, as it would be, according to the reasoning of the court, conferring judicial powers in each case on tribunals other than the courts of the state.

Id. And, at the time, there were 119 such local election contest boards adjudicating

an indeterminate number of contests.

The first of those local election contest appeals was just weeks away.

39. Court of Appeals “tied itself into a knot”—Tousey v. Stites

Just as Chief Justice Paynter predicted, a local election contest came

before the Court of Appeals soon after it rendered Pratt 1. The appeal challenged

the results of an April 1900 election on the local option question whether to allow

the sale of spiritous liquors in a part of, coincidentally, Breckinridge County.

-278- Tousey v. Stites, 66 S.W. 277, 277 (Ky. 1902) (rendered Jan. 15, 1902). The case’s

history starts with an earlier election contest from the prior winter.

In December 1899, a Breckinridge County magisterial district

comprised of four precincts voted in the majority to disallow the sale of spiritous

liquors. Tousey v. De Huy, 62 S.W. 1118, 1118 (Ky. 1901). “Appellants contested

the election before the county election board, who decided against them. They

appealed from the decision of the board to the circuit court, which also held the

election valid, and from this judgment they have appealed to this court.” Id. In

May 1901, before Pratt 1 was rendered, the Court affirmed the county election

contest board’s certification of the election. Id. at 1119.

In the meantime, in April 1900, one of the four precincts involved in

Du Huy held its own local option election on the same issue. When the same

election certification process was followed and the vote approving the sale of

spirits was contested, the same county election contest board made a legal

determination that the local option statute prohibited another election by the same

voters within three years of the previous vote.121 Stites, 66 S.W. at 277

(referencing KS 2554 (1899)). Robert Breckinridge’s attorneys, waiting to be

heard on their petition to rehear Pratt 1, took notice of Tousey v. Stites.

121 Tousey v. Stites cleverly avoids mentioning the county election board’s participation. But Pratt 1 was then far from being rendered. The very process followed just months before in Tousey v. Du Huy was certainly followed here. The Goebel Election Law was the only process that existed.

-279- They believed the Court “tied itself in a knot as it were on the Pratt-

Breckinridge Attorney-General opinion” when it rendered Tousey v. Stites because

the Court treated the local contest board just like a court and affirmed its legal

ruling. EVENING BULLETIN (Maysville, Ky.), Jan. 21, 1902, at 3. That was

certainly inconsistent with Pratt 1. Breckinridge’s attorneys “filed a supplemental

petition for rehearing . . . in which they ask[ed] the court . . . ‘Can judicial power

be assumed in county contest boards and not in State contest boards?’” Id.

The Court of Appeals was not amused by the argument. “[I]t is

suggested that this court,” said Judge Guffy, just two weeks ago “on the 15th

January, 1902, in Tousey v. Stites (Ky.) 66 S.W. 277, upheld the legality of the

board in regard to a local option election.” Pratt v. Breckinridge, 66 S.W. 405, 409

(1902) (hereinafter Pratt 2) (denying petition for rehearing of Pratt 1). Judge

Guffy, who penned both Pratt 1 and Pratt 2, being pressed on the issue, admitted

that “[t]he writer of this opinion, Judge O’Rear, and Judge DuRelle were, it is true,

present” when Tousey v. Stites was argued and decided. Id. at 409. Breckinridge’s

lawyers thus confirmed the judges most adamantly insisting the state election

contest board was unconstitutional less than two months earlier now hypocritically

recognized the local election contest board’s constitutionality in Tousey v. Stites.

In general, Judge Guffy told Breckinridge to move on with his argument; there was

nothing to see here. His specific response was, in fact, petty and vapid.

-280- Before giving an answer to Breckinridge’s argument, Judge Guffy

played a trifling “gotcha” card. Breckinridge’s counsel misidentified the author of

Tousey v. Stites as the Chief Justice. As if to lead with his most sustainable point,

Judge Guffy said, “The writer of the petition has fallen into an error of fact as well

as an error of law. The Chief Justice did not deliver the opinion, but the opinion

referred to was delivered by Judge White.” Pratt 2, 66 S.W. at 409. Aha!

As for Breckinridge’s error of law, Judge Guffy said no one in Tousey

v. Stites brought up Pratt 1 or the unconstitutional Goebel Election Law or the

illegal contest boards. Out of sight, out of mind, and out of the Tousey v. Stites

opinion. Judge Guffy said,

There was no reference made to the constitutionality of the election law in question, nor to the legality of the board to try such contested election, either before the board of contest or the circuit court. No such question was considered by the court, nor is it referred to in the opinion delivered by Judge White.

Pratt 2, 66 S.W. at 409. Guffy offered no more explanation for the hypocrisy.

40. Court of Appeals tries to ignore Pratt 1 after it serves its purpose

For an opinion that so changed the direction of Kentucky

constitutional jurisprudence, Pratt 1 was rarely cited. In context, that is no

surprise. It had served its political purpose and that was no secret, at least not at

the time. See, e.g., ERIE TIMES (Erie, Pa.), Feb. 11, 1902, at 4 (“The Pratt case is

the most unique turn in politics in the history of Kentucky.”).

-281- The Republican judges made fellow Republican Clifton J. Pratt the

Attorney General, though his failures in that role had more impact than his

successes. His record defending the Commonwealth on appeal of the convictions

of Goebel assassination conspirators Caleb Powers, Jim Howard, and the rest, went

more and more underwater as conviction after conviction was reversed. That may

have been his desired result. Pratt never retrieved ex-Governor Taylor from

Indiana or brought him to trial, and he never sued Indiana on behalf of the

Commonwealth for violating the Federal Constitution’s Article IV § 2, cl. 2.

Almost certainly, that was the intended result. Eventually, all those indicted for

Goebel’s murder were pardoned,122 and ex-Governor Taylor spent the rest of his

122 James Klotter in WILLIAM GOEBEL: THE POLITICS OF WRATH, supra, says:

Both Howard and Powers petitioned the Republican governor for a pardon. On 13 June 1908, “Gus” Willson stated his belief that both men were innocent, and that [Henry] Youtsey [of the auditor’s office], now a thoroughly discredited Republican, had killed Goebel. No conspiracy existed, said the governor. Less than a year later, Willson issued pardons to six other men, including former Governor Taylor. “The American Dreyfus,” as Powers was being called, had, like Howard, been imprisoned for over eight years when freed. Democrats regained the governorship in 1911, and five years later Youtsey was paroled. Democratic Governor James D. Black—from Powers’s Knox County—granted the last of the three convicted men a full pardon in 1919.

WRATH 137. See footnote 112, supra, and accompanying text for citation to Jim Howard’s appeals. Caleb Powers’ saga is cited in University Medical Center, Inc. v. Beglin, as follows:

After Goebel’s death, the republican Secretary of State, Caleb Powers was tried four times for his part in the murder. The first three times, he was sentenced to be “hanged,” but his conviction was reversed each time by the Kentucky Court of Appeals—then the state's highest court. The fourth time, he was given a life sentence, but was then pardoned by Governor Augustus E. Wilson. See Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735 (1901); Powers v. Commonwealth, 114

-282- life in Indiana where he is buried. Whether it was worth it is for anyone to guess.

But Pratt 1, no doubt, did damage, and that became evident very quickly.

Guffy may have realized, too, what Paynter suggested—Pratt 1 so

disrupted jurisprudence, it invited mischief. His opinion reveals a sense of it.

His wording of the actual holding in Pratt 2 might be a tell that my

suspicion is correct: “I think the petition for rehearing should be overruled.” Pratt

2, 66 S.W. at 410. The wording of that ruling shows little confidence.

The opinion’s opening sentence does not signal confidence either. It

dodges the argument urged by Appellants in the instant appeal—that the General

Assembly has the power to elect or appoint members of boards. “The reasons and

authorities[,]” said Judge Guffy, “are so conclusive of the question that I shall not

make any response to the petition[.]” Id. at 405. But Pratt 1’s scathing dissents

prove Guffy wrong—the authorities are by no means conclusive on any of its

holdings except to contradict them. The majority just refused to rehear that issue.

However, intentionally or not, Pratt 2 helps light the opinion’s

pathway to obscurity. It identifies three separate powers at the heart of Pratt 1’s

constitutional challenges of the contest boards’ authority. The first power is “the

Ky. 237, 70 S.W. 1050 (1902); Powers v. Commonwealth, 114 Ky. 237, 71 S.W. 494 (1903); Powers v. Commonwealth, 139 Ky. 815, 83 S.W. 146 (1904).

375 S.W.3d 783, 802 n.30 (Ky. 2011), as modified on den. of reh’g (Mar. 22, 2012) (Scott, J., concurring, in part, and dissenting, in part).

-283- power of the legislature to appoint”; the second power is that of “creating the

election board”; and the third power is “the power to try contested elections[.]”

Pratt 2, 66 S.W. at 405 (emphasis added). In the two decades that followed, when

the Court chose not to ignore the opinion, Pratt 1 was never applied to hold

unconstitutional the General Assembly’s exercise of the first power, the power of

appointment.

41. Court of Appeals cannot hide from Pratt 1 forever

Pratt 1 clearly created problems for the Court. For two decades, all

branches of Kentucky government ignored Pratt 1 where it could as in Tousey v.

Stites and as in the General Assembly’s continued election of the Penitentiary

Board commissioners and the State Librarians, without any objection from the

Governor’s office. But when advocates appearing before the Court of Appeals

waved the opinion under its judges’ noses, Pratt 1 was hard to ignore. The Court

would ignore it just one more time before it faced its own music.

Less than two months after rendering Tousey v. Stites, the Court

demonstrated its lack of confidence in Pratt 1 a second time in Smith v. Coulter, 67

S.W. 1 (Ky. 1902). Sam Smith wanted to be paid for his work as “a clerk and

member of the clerical force of . . . [the] auditor of public accounts of Kentucky[.]”

Id. at 1. John Sweeney had hired Smith before Gus Coulter ousted and replaced

him as auditor effective February 26, 1900. But Smith continued to perform work

-284- in the auditor’s office until June 13, 1900, and claimed he was due salary of a bit

more than $429. Id.

But here it was, the middle of March 1902, and the Court said just

four months earlier, in Pratt 1, that everything the state election contest board did

violated the constitution, and that would include removing Sweeney and putting

Coulter in office. Sweeney, in theory at least, should still be in office.123 But you

would never know the state election contest board was ever illegal by reading

Smith v. Coulter which, indicating quite the opposite, says:

[U]nder the law the term of office of said J. S. Sweeney and all of his appointees expired when he (Coulter) qualified as required by law, to wit, on the — day of February, 1900, after having been legally adjudged by the election contest board the rightful auditor of the commonwealth of Kentucky . . . by law the term of office as auditor of said Sweeney expired the 26th day of February, 1900 . . . . it was finally decided that appellee, Coulter, was the legal auditor . . . .

Id. at 2 (emphasis added). Given Pratt 1, how did the election contest board

legally adjudge anything? It took some legal gymnastics irrelevant here, but the

Court figured out a way to get Sam Smith his salary. Id. at 2–3.

123 After Pratt 1, many could not understand why all the Republicans who had been removed from office by the state election contest board were not also reinstated. DAILY PUBLIC LEDGER (Maysville, Ky.), Nov. 22, 1901, at 3 (“If Judge Pratt was elected Attorney General, the other Republican candidates who were on the ticket with him were elected also.”). In fact, right after Judge O’Rear’s election, counsel for those other defeated office seekers petitioned for a rehearing. HOPKINSVILLE KENTUCKIAN (Hopkinsville, Ky.), Dec. 04, 1900, at 5. By late January, the decision was made that “[t]here will be no reopening of the contests over the [other] Kentucky minor state offices . . . .” DAILY PUBLIC LEDGER. (Maysville, Ky.), Jan. 30, 1901, at 3.

-285- Ignoring Pratt 1 might have worked as a short-term strategy. It was

not a viable long-term solution.

42. Court of Appeals faces the music, with its fingers in its ears

The first of the few cases in which the Court acknowledges Pratt 1 is

Davidson v. Johnson, 67 S.W. 996 (Ky. 1902), rendered a month after Smith v.

Coulter. W. A. Johnson won the race for mayor of Covington and his opponent,

George Davidson, contested the election. Id. at 997. Defending his victory,

Johnson cited Pratt 1 and claimed the local election contest board had no

jurisdiction as a court to hear Davidson’s challenge and, therefore, the circuit court

had no appellate jurisdiction to hear it either; Johnson asked the Court of Appeals

to dismiss Davidson’s appeal because the Court of Appeals thus also lacked

appellate jurisdiction. Id.

Judge Guffy, who also authored Davidson, could no longer ignore

Pratt 1, certainly not if he wanted to get to the merits of the case, and he apparently

did.124 Both Tousey v. Stites and Smith v. Coulter, contrary to Pratt 1, presumed

the legality of the local contest board’s actions. In Davidson, Guffy did an about

face and outright declared “the circuit court . . . could not acquire [appellate]

jurisdiction to hear and determine the contest upon a record made out and

124 Guffy might have simply dismissed the appeal for lack of jurisdiction, Davidson’s contest would have been a nullity, and Johnson would be mayor. But Guffy did not do that. Why, is anyone’s guess.

-286- transmitted by the commissioners, who had no power to try a contested election, as

was expressly decided in Pratt v. Breckinridge.” Id. at 998 (emphasis added).

Given Pratt 1, Johnson’s irrefutable lack-of-jurisdiction argument

forced Guffy to find a way to get around the Court of Appeals’ own lack of

appellate jurisdiction to reach the merits. Perhaps that “ingenious mind, dazzled

by theory” served him again because he chose to imagine a legal fiction. He said,

“If it be conceded (we do not decide whether it is so or not) that the circuit court

would have had jurisdiction of the contest if proceedings had been originally

instituted therein,” then the Court of Appeals could address the merits. Id.

(emphasis added). But why include this parenthetical? There is one explanation.

Guffy must have realized the predicament the Pratt 1 dissents

foreshadowed—the majority went against the grain of too much Kentucky

jurisprudence. Not only did it misinterpret the nationally prominent opinion in

Taylor v. Commonwealth, 26 Ky. 401 (1830), it also implicitly reversed another

Kentucky opinion of national prominence, Batman v. Megowan, 58 Ky. 533

(1859).125

125 The following opinions cite Batman for its main point of law about to be discussed: Parks v. State, 13 So. 756, 761 (Ala. 1893); Baxter v. Brooks, 29 Ark. 173, 186–87 (1874); O’Dowd v. Superior Court of California in and for City and Cnty. of San Francisco, 111 P. 751, 753 (Cal. 1910); Woodard v. State, 30 S.E. 522, 523 (Ga. 1898); The King v. Buffum, 3 Haw. 462, 464 (1871); In re Gunn, 32 P. 948, 961 (Kan. 1893); Robertson v. State ex rel. Smith, 10 N.E. 582, 607 (Ind. 1887); Bradburn v. Wasco Cnty., 106 P. 1018, 1019 (Or. 1910); State v. De Gress, 53 Tex. 387, 393 (1880); Goff v. Wilson, 9 S.E. 26, 31 (W. Va. 1889).

-287- Batman held that the Legislative Department alone had the

constitutional authority to decide election contests; “the power of the general

assembly to determine the result [of an election] is exclusive, and that its decision

is not open to judicial review.” Taylor 2, 178 U.S. at 574, 20 S. Ct. at 899 (citing

Batman). Pratt 1 took the diametrically opposite position, but mentioning Batman

or worse, expressly reversing it, clearly would have gone too far. Now, in

Davidson, the errant reasoning of Pratt 1 returned to haunt the Court. Pratt 1 had

been too clever by half.

Guffy knew the Court could not “decide” the circuit court had original

jurisdiction to hear an election contest. Without a statute, Batman prohibited such

a ruling. And no such statute then existed. Because Pratt 1 had not expressly

reversed Batman, Guffy either would have to reverse it here or solve the dilemma

Pratt 1 created in a different way. So, Guffy cleverly “conceded” the circuit

court’s original jurisdiction while declining to “decide” whether such jurisdiction

existed. We know he knew it did not exist; otherwise, his fiction would not have

been so obviously tortured.

As the dissenters pointed out in Pratt 1, its majority opinion (if we

accord it legitimacy) effectively reversed far more jurisprudence than it expressly

identified. We, the sitting appellate court of first resort today, do not have to

-288- choose whether to follow Pratt 1 or Batman. Our jurisprudence is proof the

Supreme Court’s predecessor already made that choice—not to follow Pratt 1.

Proof came quickly that Batman was not reversed and that the Court

ignored Pratt 1 as much as it could even on its real holding, “simply that the state

board of contest, composed of three commissioners, was a legislative court, within

the meaning of this section of the Constitution.” Albin Co. v. City of Louisville, 79

S.W. 274, 274 (Ky. 1904).

Consider the case of Pflanz v. Foster, 159 S.W. 641 (Ky. 1913). The

case expressly reaffirmed Batman, holding, “There is no inherent power in the

courts to pass upon the validity of elections or to try contested election cases; their

authority is wholly statutory, and must be either given expressly or by necessary

implication.” Id. (citing Batman). That line of cases spanning Pratt 1 from

Batman to Pflanz and beyond was not impacted in even the slightest way by Pratt

1. Pratt 1 was then, and should now be, simply ignored.

43. Court of Appeals continued to sideline Pratt 1

The need to deal with the problems Pratt 1 caused continued. By the

end of 1902, Judge DuRelle was writing one of his last opinions as a judge, having

lost his re-election campaign, along with Judge Guffy, in November that year.

HOPKINSVILLE KENTUCKIAN (Hopkinsville, Ky.), Nov. 28, 1902, at 6. The case

was Herndon v. Farmer, 70 S.W. 632 (Ky. 1902).

-289- Judge DuRelle’s opinion in Herndon is another election contest

appeal, but it was not brought under the Goebel Election Law. The new bipartisan

election law now governed. Id. at 634 (citing “the act of October 16, 1900, ‘to

further regulate elections,’ and the act of October 24, 1900 ‘to amend an act

entitled, “An act to further regulate elections”’”).

Herndon’s appeal had nothing to do with the General Assembly’s

power of appointment. He argued the new law violated § 51 of the Kentucky

Constitution and Pratt 1 would not help him there.126

According to Judge DuRelle, “it may be said that the case of Purnell

v. Mann, 48 S.W. 407, in which the election law of 1898 was held not

objectionable by reason of this constitutional provision, was not overruled in Pratt

v. Breckinridge, 65 S.W. 136, in so far as the former case passed upon this

question.” Id. Pratt 1, again, is inapposite.

After DuRelle and Guffy were gone, the new Court continued to

neutralize Pratt 1. The new Court of Appeals, seated January 1, 1903, was made

up of five Democrats and two Republicans.127 In Albin Company v. City of

126 “[S]ection 51 . . . provid[es] that ‘no law enacted by the general assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length.’” Herndon, 70 S.W. at 634. 127 “Personnel of the Court of Appeals after January 1 [were] Curtis F. Burnam, Republican, Chief Justice, Edward C. O’Rear, Republican, J.P. Hobson, Democrat, Thos. J. Nunn, Democrat, Warren

-290- Louisville, a corporate taxpayer did not like his assessment and, citing Pratt 1,

argued Louisville’s board of equalization that determined his tax liability was an

unconstitutional court. 79 S.W. 274, 274 (Ky. 1904). Rejecting that argument, the

Court began talking about the narrow nature of the holding in Pratt 1, saying, “The

direct point decided in this case was simply that the state board of contest,

composed of three commissioners, was a legislative court, within the meaning of

this section of the Constitution.” Id. (emphasis added).

It seems the creation of an election contest board was very different

from the creation of an agency to carry out a legislatively determined public policy

initiative. “If the Legislature is powerless under the present Constitution to

provide for such a tribunal as a board of equalization, then the whole revenue

system of the state, counties, and municipalities must give way . . . .” Id. at 275.

Of course, the Court indicated, the General Assembly can populate a mere board

with inferior officers by exercising its power granted by § 93. Id.

Just a few years later, in Board of Trustees of Firemen’s Pension Fund

v. McCrory, the Widow McCrory wanted her late husband’s pension, but the

governing board denied her claim. 116 S.W. 326, 327 (Ky. 1909). Mrs. McCrory

argued the pension fund board was a court of the type prohibited by Pratt 1, and

E. Settle, Democrat, Henry S. Barker, Democrat, Thos. H. Paynter, Democrat. All subordinate officers of the court, now Republicans, will be replaced by Democrats.” HOPKINSVILLE KENTUCKIAN (Hopkinsville, Ky.), Nov. 11, 1902, at 9.

-291- that the law unconstitutionally prohibited her from seeking judicial relief. No, said

the Court, this is different than Pratt 1. The General Assembly certainly had the

power to create the whole administrative structure just as it did.

More importantly to the instant appeal, the General Assembly

appointed the pension board’s five members. 1902 Ky. Acts 3, ch. 2, § 16. And

no one claimed it couldn’t. The General Assembly created the board and elected

its members, that board acted on her application, its decision was reviewed by the

Executive Department personnel the General Assembly assigned to do so, and the

law constitutionally left the judiciary out of the process. “We have no appellate

power over the commissioner, and no right to review his decision.” McCrory, 116

S.W. at 328. “The case of Pratt v. Breckinridge, 112 Ky. 1, 65 S. W. 136, 66 S.

W. 405, cited by appellee, is not apposite to the question in hand.” Id.

Soon after, the Court was given the opportunity to apply Pratt 1 to

hold the creation of a Board of Control of Charitable Institutions unconstitutional.

Willis v. Scott, 142 S.W. 1012 (Ky. 1912). Willis was superintendent of the

Eastern Kentucky Asylum until the board which had appointed him, removed him

from office. Citing Pratt 1, he argued the board “had no power under the law to

try him, and . . . giving it such power and the right to remove him was

unconstitutional and void, as it constituted a court . . . and the Legislature had no

power to create such a court, or any other court than that established by the

-292- Constitution of the state.” Id. at 1012. That argument seemed to compare nicely

with the unconstitutional board of election contests in Pratt 1 which the Willis

court acknowledged “had no such power; that it exercised judicial functions in that

matter, or attempted to exercise such functions, which was an express violation of

the Constitution.” Id. at 1013. But the Court saw no similarity.

Not only did the Court distinguish Pratt 1, it acknowledged the

Legislature’s power to create the board and to establish the process of selecting and

removing superintendents, and to exclude judicial review. Id.

More importantly, Willis recognized the General Assembly’s “right to

. . . authorize[] their removal” from the superintendent position, or as we would

now say, the General Assembly had the right to delegate the intrinsically executive

power of removal to a board of the General Assembly’s creation. Id. That

acknowledgment runs contrary to the interpretation in Pratt 1 that such powers as

appointment and removal are exclusively reserved to the Governor and cannot be

exercised by the legislature.

However, as the Pratt 1 dissenters said, it is entirely consistent with

Kentucky’s great body of jurisprudence. Gorham, 45 Ky. at 159 (citing Taylor v.

Commonwealth, 26 Ky. 401 (1830)) (power of appointment is intrinsically

executive unless vested elsewhere). As said in Page v. Hardin, “whatever might

be the inference as to the power of removal, if it were left to inference, (as to which

-293- we need not inquire,) that power which we may presume would have been

expressly granted to the executive [i.e., the Governor],” is no longer an executive

power when it “has been expressly confided to other hands.” 47 Ky. 648, 675

(1848); see Lowe v. Commonwealth, 60 Ky. 237, 238–39 (1860) (“Gorham v.

Luckett . . . decided that the power of removal . . . when conferred upon a court,

was a judicial and not an executive power”).

Just as revealing in the analysis is another principle of jurisprudence

ignored in Pratt 1 but cited in George and Purnell and by the Pratt 1 dissenters

and addressed in the dissent you are reading—that is, no power can be delegated

that is not first possessed and exercisable by the entity delegating it. Slack v.

Maysville & L.R. Co., 52 Ky. 1, 137 (1852) (“he can not exercise a power derived

from his principal which, at the time it is attempted, the principal does not himself

possess”) (quoted at length in Section 9, supra). The Constitution authorized the

General Assembly to vest in another entity, i.e., to delegate to another entity, the

power of appointment to and removal from an inferior office. It must have been

possessed of the power of appointment itself in order to lawfully delegate that

power, and any power, not legislative in its nature. “‘The rule precluding the

delegation of power by the legislature does not embrace every power the

legislature may properly exercise. Any power not legislative in character which

-294- the legislature may exercise it may delegate.’” Commonwealth v. Assoc. Indus. of

Ky., 370 S.W.2d 584, 588 (Ky. 1963) (quoting 1 AM. JUR. 2D 898).

Thus, the Court effectively returned to the holding in George that the

General Assembly was empowered by § 93 to appoint inferior officers and was not

explicitly or implicitly prohibited by any other constitutional provision from

exercising that power.

44. Pratt 1 did not affect how the General Assembly appointed inferior officers

The truth is, Pratt 1 really changed nothing. When Governor Willson

gave his State of the Commonwealth Address in 1910, he repeated the perennial

lament of Kentucky governors that he did not have enough appointment power.

He did not expressly blame the People of Kentucky who voted to adopt the 1850

Constitution and its antecedent to § 93, but he might as well have. Before both

chambers of the General Assembly, he expressed frustration:

[S]ession after session, the Legislative Branch has made laws taking away from the Executive Department appointments and powers always in every State and always before in this State [under the first and second constitutions], vested in the Chief Executive. . . . [T]he result is that the Legislative Department has not only chosen its own organization and attendants as expressly authorized by the Constitution, but it has taken from the Governor nearly all of the Executive powers and duties of appointment, control, supervision and removal of officers and employes . . . . [T]his has been done . . . partly by creating offices for executive business to be filled by men elected by the Legislative branch, as notably in the case of the Prison Commissioners.

-295- In short, it has come to pass that the Governor . . . has practically almost no part in the appointments . . . . In Kentucky, the only appointments left to the present Governor, or any successor, of any party, are, speaking from memory, but substantially correct, a Private Secretary, a Stenographer, a Messenger and Capitol Watchman, a State Inspector and Examiner, Adjutant- General, Assistant Adjutant-General, four members of the Board of Control [of Charitable Institutions], seven members of the Board of Equalization and a few other appointments . . . .

SENATE JOURNAL (1910) 20–21. The song seems always to be the same, even if

the singer gives it his own rendition. But this speech certainly supports two

contentions of this dissent: (1) except in the area of local and special laws the

1890 Constitutional Convention did not clip the General Assembly’s wings; and

(2) Pratt was not considered authoritative by its contemporaries. However, the

General Assembly was listening to Governor Willson.

By an act of June 12, 1912, the General Assembly, “removed from

office the persons then holding the places of prison commissioners [whom the

General Assembly had elected] and put the appointment of their successors in the

hands of the Governor.” Stone v. Board of Prison Comm’rs, 176 S.W. 39, 39 (Ky.

1915). The Governor’s appointment, however, remained subject to Senate

confirmation (which, in the perfect separation-of-powers view DuRelle embraced

would itself be an infringement on the intrinsically executive power of

appointment). 1912 Ky. Acts 201, ch. 50, § 1.

-296- This act amended KS 3795 by which the General Assembly exercised

the power it retained of electing inferior officers that was expressly delegated to it

by the People in § 93 and, to whatever degree not expressly granted, in its plenary

power. For that plenary power to have been tempered in any way required an

express prohibition or a prohibition implied from a grant of such power to the

Governor in the first place. Neither has existed since 1850.

It is inescapable that the very vesting of this appointment power in the

Governor—a delegation of its own power to elect commissioners—was an exercise

of the very power of § 93 Appellees claim is lacking somehow today. Id., §§ 1, 2.

But what motivated the General Assembly to relinquish the power?

The statute was not amended because the Court of Appeals in Pratt 1

said the General Assembly lacked the power of appointment. The change came “in

obedience to the Democratic [Party] platform . . . .” JOURNAL OF THE REGULAR

SESSION OF THE SENATE OF THE COMMONWEALTH OF KENTUCKY [COMMENCING

JANUARY 6, 1914] 59 (1914) (hereinafter SENATE JOURNAL (1914)) (State of the

Commonwealth Address of Governor James McCreary, Jan. 6, 1914). It was a

pledge of politicians desiring to become or remain legislators that they would

exercise the power of § 93 to change the “manner as may be prescribed by law” in

appointing or electing these specific inferior officers. All this activity surrounding

the appointment power after 1901 is acknowledgment by all three branches that the

-297- power of appointing or electing inferior officers was a power the General

Assembly itself could exercise, or could delegate to any person or entity,

consistently with the constitutional jurisprudence and in repudiation of Pratt 1.

See, e.g., Commissioners of Sinking Fund v. George, 104 Ky. 260, 47 S.W. 779,

782 (1898), overruled by Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136 (1901)

(“election of the commissioners was not essentially an executive function, and that

the legislature had the right to elect them”); Speed v. Crawford, 60 Ky. 207, 211

(1860) (a law in which an officer’s “selection is referred to the people, or to an

organized body (as the legislature, for instance) . . . .”).

That could not have been made more clear than in Sewell v. Bennett,

in which the Court of Appeals confirmed, well after Pratt 1, that § 93 gave

complete control to the General Assembly of appointment/election power,

including “the undoubted power to make these appointments itself . . . .” 220 S.W.

517, 519 (Ky. 1920).

45. Court of Appeals confirms General Assembly’s complete control of appointments in 1920

In Sewell v. Bennett, the Court of Appeals thoroughly discussed the

General Assembly’s complete authority over appointments to and/or elections of

inferior officers. The contest was between two competing claimants to public

-298- office as members of the Workmen’s Compensation Board.128 Id. at 518. Sewell

was a vacation appointment by Governor Stanley while the Senate was not in

session. Id. After Edwin Morrow succeeded Governor Stanley, “Governor

Morrow advised the Senate that he had, subject to its consent and approval,

appointed . . . Bennett . . . .” Id.

When the Senate convened, it passed a “resolution rejecting the

appointments . . . by Gov. A. O. Stanley, during Senate vacation, and consenting to

and confirming the appointment of . . . Bennett . . . .” Id. Sewell, claiming his

own entitlement, sought an injunction in Franklin Circuit Court restraining Bennett

from taking office. The circuit court denied the injunction.

Under the procedural rules at that time, Sewell filed a motion with the

Court of Appeals for the same injunction to be entered by the Chief Justice. Chief

Justice John Carroll, apparently recognizing the significance of the legal issues

raised, had the entire Court hear the case. Id. at 518, 523.

Sewell argued that the “Workmen’s Compensation Act . . . enacted by

the Legislature in 1916” provided that the Board “shall consist of three members

appointed by the Governor” and did not require Senate confirmation. Id. at 518.

The Court acknowledged “no provision was made requiring the Governor to

128 Actually it was two sets of claimants: “N. B. Sewell and H. J. Allington, on the one side, and A. S. Bennett and Clyde R. Levi, on the other[.]” Sewell, 220 S.W. at 518. For ease of reading, I will refer only to the lead movant and lead respondent, Sewell and Bennett, respectively.

-299- submit to the Senate for its rejection or confirmation the names of the persons

appointed by him . . . .” Id. at 519; 1916 Ky. Acts 375–76, ch. 33, § 39. It noted

that “if this act was the only applicable law on the subject of these appointments,”

seeking confirmation would have been unwarranted and the Senate approval or

disapproval “would have no binding force on either the Governor or his

appointees.” Id.

However, the Court said there was “another statute of general

application that must be considered” from the chapter of Kentucky Statutes entitled

“Offices and Officers,” KS 3750 (1893). That statute said: “all persons appointed

to an office by the Governor . . . shall hold office, subject to the advice and consent

of the Senate . . . .” Id. at 519–23.

The Court spoke of these statutes as introduction to its discussion of

the General Assembly’s power of election/appointment. The Court said the Board:

is purely a legislative creation and in providing for the appointment of members of the board the Legislature had the undoubted power to make these appointments itself or give them to the Governor, or indeed any other person or body that it might designate, and also the power to provide that the appointing authority should submit his or its appointments to any person or body the Legislature might designate for his or its approval or rejection.

This power is conferred on the Legislature by section 93 of the Constitution, providing in part that:

“Inferior state officers, not specifically provided for in this Constitution, may be appointed or elected, in such a

-300- manner as may be prescribed by law, for a term not exceeding four years, and until their successors are appointed or elected and qualified.”

A full discussion of the power of the Legislature in this respect may be found in Sinking Fund Commissioners v. George, 104 Ky. 260, 47 S. W. 779, 20 Ky. Law Rep. 938, 84 Am. St. Rep. 454; State v. Boucher, 3 N. D. 389, 56 N. W. 142, 21 L. R. A. 539; Davis v. State, 7 Md. 151, 61 Am. Dec. 331; People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St. Rep. 122.

Id. (double emphasis added). I especially note the emphasized language. The

General Assembly itself had the “undoubted power” to make appointments to

boards it created. Just as importantly, in discussing the General Assembly’s

appointment power, Pratt 1 is ignored, and George is cited as the authoritative

Kentucky jurisprudence despite being expressly overruled by Pratt 1.

The unanimous Court denied Sewell’s motion after considering

whether the doctrine of contemporaneous construction justified ignoring KS 3750

(1893). Pratt 1 was truly in the ash heap of Kentucky jurisprudential history until

the peculiar case of Sibert v. Garrett, 246 S.W. 455 (Ky. 1922).

46. The “non-law” that Sibert v. Garrett adjudicated

Sibert v. Garrett is peculiar for many reasons, beginning with what it

adjudicated. At first blush, it reads as though it determined the constitutionality of

a statute. It did not. Closer reading shows the Court never tested a law’s

constitutionality. The opinion states at the very beginning, what the Court

-301- reviewed was “an act attempted to be passed at the 1922 session of the General

Assembly of Kentucky, commonly known as the ‘Simmons Road Bill[.]’” Sibert,

246 S.W. at 455 (emphasis added). Here is the backstory of that non-law.

One need not be a historian to appreciate that in the 1920s, especially

with the burgeoning of motorized transportation, Kentucky and all of America had

a roads problem. See Mason v. Barnett, No. 2016-CA-000778-MR, 2018 WL

5726387 (Ky. App. Nov. 2, 2018) (Section III,1(d)(1), entitled, “The roads

problem”). Among other efforts, the Kentucky General Assembly sought to

address this challenge by enacting the “Moss Good Roads Bill” in 1920, a law

intended to improve 3,500 miles of Kentucky roads. 1920 Ky. Acts 76, ch. 17;

ADAIR COUNTY NEWS (Columbia, Ky.), April 07, 1920, at 2, 8.

The Moss Good Roads Bill reorganized the Department of Public

Roads, renaming it the Department of State Roads and Highways, supervised by a

State Road Commission of four members, two from each of the major parties, who

would hire a State Highway Engineer. 1920 Ky. Acts 76, ch. 17, § 1. Pursuant to

the authority of § 93, the General Assembly vested the power of appointing the

members of the commission in the Governor. Id.

In November of the following year, as part of a Federal-State

partnership, Congress passed Senate Bill 1072 to improve the nation’s highways,

making available significant federal funding on a state matching basis. Federal

-302- Highway Act of 1921, Pub. L. No. 67–87, 42 Stat. 212 (1921). This led the

Kentucky legislature to seek a means to produce such funds as could fulfill that

matching criterion. A $50,000,000 bond issue was proposed. Except for its size, it

was like other bond issues. This large sum would be managed by the four-

member, bipartisan board of the Department of State Roads and Highways. On its

face, this was hardly objectionable, but one of the board’s two Republican

members happened to also be the Republican Party treasurer, H. Green Garrett.

COURIER-JOURNAL (Louisville, Ky.), Jan. 1, 1923, at 4. The Senate Democrats’

response was to propose the Simmons Road Bill, named after its sponsor, Senator

Robert C. Simmons.

The initial draft of the Simmons Road Bill proposed a referendum

vote of the People in November 1922 on the “$50,000,000 bond issue to be used

on the highways of the state[.]” ADVOCATE (Mt. Sterling, Ky.), Feb. 14, 1922, at

2. It also called for a bipartisan board of twelve volunteers appointed by the

Governor. KENTUCKY POST (Covington, Ky.), March 2, 1922, at 1.

For various reasons, the bill was reported unfavorably out of the

House committee but, following a demonstration by 200 members of the Kentucky

Good Roads Association, it passed in the House handily on a bipartisan basis, 63–

34 (32 Democrats and 31 Republicans for; 33 Democrats and 1 Republican

-303- against). COURIER-JOURNAL (Louisville, Ky.), Jan. 1, 1923, at 4; DAILY REGISTER

(Richmond, Ky.), Feb. 16, 1922, at 2. The real fight was in the Senate.

“Changes made in the $50,000,000 bond issue bill in the Senate . . .

endangered [its] passage . . . .” KENTUCKY POST (Covington, Ky.), March 2, 1922,

at 1. To assure potential control of this money was wrested from the Republican

Party treasurer, Democrat senators proposed a Senate substitute. Like the original

draft, it would abolish the existing bipartisan board but, instead of the twelve-

member, Governor-appointed, bipartisan board proposed in the original draft, the

substitute bill named in the bill itself four Democrats who would have more control

and would be salaried. 1922 Ky. Acts 460, 462–63, app. By this substitute, “[t]he

Democrats succeeded in placing the Republicans in the position of favoring the

$50,000,000 road bond issue only if administered by a State Highway Commission

of Governor Morrow’s appointment.” BIG SANDY NEWS (Louisa, Ky.), March 24,

1922, at 6.129 DAILY REGISTER. (Richmond, Ky.), Feb. 08, 1921, at 5. The overtly

129 My research discovered no better or more thorough discussion of the political, social, legislative, and judicial events leading to the Court of Appeals’ decision in Sibert v. Garrett than that appearing in the January 1, 1923, edition of the Courier-Journal. Vance Armentrout, Story of Simmons Road Law Reveals Fight Over Expenditure of Millions, COURIER-JOURNAL (Louisville, Ky.), Jan. 1, 1923, at 1, 4, 8. An excellent account covering events till the end of the legislative session is The New Highway Body and the Bond Issue, BIG SANDY NEWS (Louisa, Ky.), March 24, 1922, at 6.

-304- partisan election of initial members offended even the Democrat who introduced

the original bill in the House. Id.130

Senate Republicans did all they could to stop the Senate substitute.

“[I]n the closing days of the Legislature . . . an effort [was] made by Republicans

to delay matters so no veto of the governor could be overruled during the last 10

days of the Legislature.” Id., February 16, 1922, at 1. Their filibuster lasted till

4:30 AM on March 1, 1922, when a “derangement of the lighting system” resulted

in a motion to adjourn until daylight; “The vote was put and carried in the dark.”

DAILY REGISTER (Richmond, Ky.), March 1, 1922, at 2. Additionally, more than

thirty motions to amend the bill and 37 roll calls did not prevent its eventual

passage along party lines, 19 Democrats for the bill to 17 Republicans against it.

DAILY REGISTER (Richmond, Ky.), March 1, 1922, at 2.

On the Attorney General’s advice that the bill was unconstitutional,

the Lieutenant Governor did not sign it. COURIER-JOURNAL (Louisville, Ky.), Aug.

28, 1922, at 1. He took the position that the bill was “for the appropriation of

money or the creation of debt” and did not “receive the votes of a majority of all

the members elected to each House” as required by the Constitution. CONST. OF

130 “Representative Harry J. Meyers, Covington, who introduced the original bill as passed in the House is fighting the Senate substitute. . . . Meyers says: ‘They can read me out of the Democratic party on this bill. I’m not going to vote for putting the roads into the hands of a partizan [sic] commission.’ . . . Many favor a smaller advisory committee, but want it bipartizan [sic]. The bill comes [back to] the House Friday, and a storm is brewing.” KENTUCKY POST (Covington, Ky.), March 2, 1922, at 1.

-305- KY. of 1891, § 46; Sibert, 246 S.W. 456. In the Senate, 20 votes were needed, and

the bill received only 19. Therefore, he would not sign it.

The last legislative day ended at noon on Saturday, March 4, 1922.

KENTUCKY POST (Covington, Ky.), March 4, 1922, at 1. “That ended the

legislative episode. The bill lay in the Executive office as ‘an unauthorized

legislative document.’ The acts were compiled that spring by the Attorney General

and the law was consigned in the volume as an ‘appendix,’ unchaptered at the end

of the acts and resolutions.” COURIER-JOURNAL (Louisville, Ky.), Jan. 1, 1923, at

4; 1922 Ky. Acts 459, app. The Simmons Road Bill was not a law.

The overwhelming response to this political battle over the universally

popular issue of road improvement was negative. The partisan nature of the

substitute bill turned enthusiastic advocates into begrudging opponents, nearly

overnight. “[T]he placing of almost all power within one political party is not

approved by any very large number of the Democratic party and disapproval by the

Independents and Republicans is absolutely as near unanimous as possible . . . .”

Editorial, HARTFORD REPUBLICAN (Hartford, Ky.), March 10, 1922, at 5. Another

editor said, “The honest Democrats of Kentucky will never stand for the building

up of such a gigantic political machine as was contemplated in the passage of this

bill . . . .” Editorial, MT. STERLING ADVOCATE (Mt. Sterling, Ky.), March 21,

1922, at 6. The editor of the COURIER-JOURNAL was in outright despair.

-306- The Courier-Journals’ championship of a bond issue for immediate construction of needed highways, provided the issue be duly safeguarded, is well-known. It was one of the first advocates of the principle. But the final worth of the principle rests upon the practical details of its application.

The [Democrat majority in the] Senate . . . cast its vote for an absolutely partisan board . . . . If the majority of the Senate can bring itself to believe that a bond issue under such a condition can sweep the State [in a referendum,] it is permitting a partisan interest to becloud a public vision.

The voters of Kentucky will not and should not turn [over] $50,000,000 to either Republican or Democratic partisans with any power residing in them to use it as a means for building up, through patronage, a vast and invincible political machine.

Editorial, COURIER-JOURNAL (Louisville, Ky.), March 2, 1922, at 6; Letter to the

Editor,131 COURIER-JOURNAL (Louisville, Ky.), March 6, 1922, at 4 (“your editorial

. . . should be a guidepost for the Legislature . . . .”).

To save the bill, Governor Morrow proposed a compromise of: (1) a

bipartisan commission of six members; (2) gubernatorial appointment with Senate

confirmation; (3) his agreement to name three Democrats selected by a caucus of

Senate Democrats; and (4) immediate submission of names for confirmation.

131 The author of this letter to the editor was Eugene Stuart (1885-1960), secretary-manager of the Louisville Automobile Club (1914-1959). JOHN E. KLEBER, ED., THE PUBLIC PAPERS OF GOVERNOR LAWRENCE W. WETHERBY, 1950-1955, at 116 n.5 (1983).

-307- KENTUCKY POST (Covington, Ky.), March 6, 1922, at 1. Democrats urged their

party’s Senators to accept Governor Morrow’s bipartisan compromise if only to

deprive the Republicans of the talking point of partisanship in the November

elections. Editorial, LICKING VALLEY COURIER (West Liberty, Ky.), March 9,

1922, at 3. But the Democrats refused. DAILY REGISTER (Richmond, Ky.), March

9, 1922, at 2. “Partisan feeling had been inflamed during the filibuster as the

impedimenta of parliamentary practice were discarded by both sides and the spirit

of battle took possession of them[,]” wrote the COURIER-JOURNAL’s State Capitol

Correspondent.132 COURIER-JOURNAL (Louisville, Ky.), Sept. 24, 1922, at 1.

“[N]either the Governor nor the Senate leaders, as far as could be ascertained,

made a step toward a conference. Each side was suspicious of the other[.]” Id.

The parties, and the bill, were at a standstill as the session came to a complete end.

Republicans suspected “an effort to legalize the bill thru a court

action” and they “were prepared to fight[.]” KENTUCKY POST (Covington, Ky.),

March 4, 1922, at 1. Their concern was justified as a caucus of Democrat senators

set about “obtaining opinions from former members of the Court of Appeals . . . on

132 Lyman Vance Armentrout (1878-1970) joined the Courier-Journal in 1905. He made headlines in 1934 when serving as associate editor. An anonymous Kentucky legislator had written a critical parody of then-Governor Ruby Laffoon. Armentrout refused to tell a Kentucky House committee the author’s name. He was cited for contempt, briefly imprisoned, and fined. This led to legislation protecting the right of a newspaper reporter to refuse to disclose sources. COURIER- JOURNAL (Louisville, Ky.), Aug. 29, 1970, at 3; The Press: Who Believes in Honest Government? TIME, March 26, 1934, https://content.time.com/time/subscriber/article/0,33009,747248,00.html.

-308- the constitutionality of the Simmons[ Road] bill . . . .” DAILY REGISTER

(Richmond, Ky.), March 9, 1922, at 2.

In the end, the Attorney General never listed the Simmons Road Bill

among the numbered acts—it was never a law. Therefore, the law it proposed to

amend, 1920 Ky. Acts 76, ch. 17, was still in force. That law required Governor

Morrow, in the summer of 1922, to again appoint members of the State Road

Commission and he did so, again naming two Republicans and two Democrats.

MT. STERLING ADVOCATE (Mt. Sterling, Ky.), Sep. 07, 1922, at 5.

No, the Simmons Road Bill never became a law—but, in Sibert v.

Garrett, the Court of Appeals gave the Senate and the Governor its advisory

opinion that the bill would have been unconstitutional if it had been enacted.

47. Procedural peculiarities in the circuit court

In the same session that the Simmons Road Bill failed to become law,

another bill succeeded, enacted as the Declaration of Rights Act. 1922 Ky. Acts

235, ch. 83 (approved March 23, 1922). Fortuity then was all that allowed the

Democrats even to make “an effort to legalize the bill thru a court action[.]”

Declaration of rights was “a new step in procedural law.” Thomas R.

Gordon, Declaratory Judgments, 10 KY. L.J. 1, 1 (1921).133 That step may not

133 Thomas R. Gordon (1853-1929) was a judge of the Jefferson Circuit Court from 1902 to 1927. This article is a reprint of his address before the Kentucky State Bar Association on July 7, 1921. On that same date, the Bar Association unanimously endorsed declaratory judgment actions and

-309- have been fully understood by these parties, their lawyers, or the judges. As Judge

Gordon explained in his article, declaration of rights actions “enable persons who

have an actual controversy as to their rights in certain circumstances to have an

authoritative and binding declaration of their rights by the court before there is an

actual breach by one and an actual loss by another . . . .” Id. (emphasis added).

But if the Court in Sibert reviewed a declaratory judgment, we must be able to

identify whose rights were allegedly imperiled, who allegedly imperiled them, and

what was the source of those rights when suit was filed in Franklin Circuit Court?

We know who the plaintiffs were—Sibert, et al. To get a hearing

before the circuit court, the theory of the case had to be that the rights of the four

men named in the Simmons Road Bill to serve as members of the State Road

Commission134 were deprived of their offices by the members of Governor

Morrow’s bipartisan board who had served since their original appointment in

1920 and re-appointment in 1922, and who refused to vacate office.135 See 1920

Ky. Acts 76, ch. 17.

authorized a committee to seek passage of such a law at the next session of the legislature. The Louisville Bar Association did the same. Gordon, Declaratory Judgments, at 1. 134 They were Democrats General William L. Sibert, Benjamin Weille, Mart L. Conley, and Leslie Samuels. BIG SANDY NEWS (Louisa, Ky.), March 24, 1922, at 6. 135 Those members were Republicans H. Green Garrett and Hugh H. Asher, and Democrats Benjamin Weille and Ed F. Monohan. PUBLIC LEDGER (Maysville, Ky.), June 5, 1920, at 2.

-310- The peculiar thing about this theory is, as the Court of Appeals

acknowledged, Sibert’s and his colleagues’ claims of right were not based on a

statute; the Simmons Road Bill was only “an act attempted to be passed . . . .”

Sibert, 246 S.W. at 455 (emphasis added). That was not enough under the new

Declaration of Rights law. The law was designed to protect “[a]ny person . . .

whose rights are affected by statute . . . or who is concerned with any title to . . .

office . . . provided always that an actual controversy exists with respect

thereto . . . .” 1922 Ky. Acts 235, ch. 83, § 2. Because the Simmons Road Bill

was never signed by the presiding officer, the Lieutenant Governor, and was never

enrolled, it was never given a chapter number in the 1922 Kentucky Acts; it was

merely included there as an appendix. Sibert, 246 S.W. at 455. Therefore, the bill

was not entitled even to a presumption it was a valid statute. See D & W Auto

Supply v. Dep’t of Revenue, 602 S.W.2d 420, 425 (Ky. 1980) (“there is a prima

facie presumption that an enrolled bill is valid”). The plaintiffs in Sibert v. Garrett

were not claiming rights under a statute; they were claiming rights under nothing

more than “an act attempted to be passed.”

The truth is the Senate wanted the judiciary’s advice whether the

Simmons Road Bill would be constitutional if it had become law. “‘All parties

concerned,’ Mr. Simmons said in explanation, ‘have consented to file a friendly

suit . . . .” BIG SANDY NEWS (Louisa, Ky.), Sep. 8, 1922, at 5. “[B]eing a friendly

-311- suit, the Court might be of the opinion that a real controversy does not exist

between the parties and that both sides might desire [the same outcome.]” Selle v.

City of Henderson, 218 S.W.2d 645, 650 (Ky. 1949). Perhaps they did.

As noted, public interest in seeing the Simmons Road Bill become law

dissipated with the bill’s provision for a partisan board. But interest seems to have

waned with the plaintiffs/appellants, too. The real party interested in the

constitutionality of the bill was the Senate Democratic caucus. The names on the

petition were just straw men.

48. Interest wanes in the Simmons Road Bill

By the time suit was filed, many citizens agreed that “[c]ounties

which are receiving help from the present commission are satisfied with things as

they are.” KENTUCKY POST (Covington, Ky.), Sept. 15, 1922, at 4. And opposition

was still strongly against a law that, if passed, would empower four members of

the same party to control $50,000,000. COURIER-JOURNAL (Louisville, Ky.), Jan.

1, 1923, at 4.

Furthermore, there is good cause to believe the four plaintiffs had lost

their enthusiasm for the suit—or never had any.

The Democrats named General William L. Sibert (1860-1935)

chairman of the commission “without his knowledge.” COURIER-JOURNAL

(Louisville, Ky.), Jan. 1, 1923, at 1. He “was added to the commission at a time

-312- when votes were needed for the measure, and it’s not to be denied that his

reputation brought strength to and aided in the passage of the bill thru the

Legislature . . . .” KENTUCKY POST (Covington, Ky.), Aug. 31, 1922, at 4. The

COURIER-JOURNAL wondered whether “there is any hesitancy” and urged him to

accept the post. COURIER-JOURNAL (Louisville, Ky.), March 31, 1922, at 6. Sibert

was a natural choice, having assisted in constructing the Panama Canal and other

Army engineering projects before retiring in 1919 to “rest at his farm near Bowling

Green[.]” Id., April 5, 1920, at 3. But General Sibert had some distractions.

In 1921, oil was discovered on his farm; before summer’s end, he had

twenty wells producing crude. KENTUCKY POST (Covington, Ky.), July 22, 1921,

at 6. Perhaps more distracting, on June 8, 1922, several weeks after being

unceremoniously named in the Simmons Road Bill, he married his third wife, Miss

Evelyn Cline Bairnsfeather (1881-1958), twenty years his junior, and planned to

“sail in the Fall for Edinburgh to visit the bride’s mother . . . .” COURIER-JOURNAL

(Louisville, Ky.), June 9, 1922, at 1. That made his departure for Europe sometime

shortly after his lawsuit was filed on September 1, 1922, in the Franklin Circuit

Court. HERALD (Lexington, Ky.), Sept. 5, 1922, at 5. But on Thursday, September

7, 1922, less than a week after suit was filed, General Sibert was among the six

thousand people at the Warren County Fair, where his foal won third place “[i]n

-313- the special class of the best foals sired by the government stallion, Sand Bed”; the

prize was $5. PARK CITY DAILY NEWS (Bowling Green, Ky.), Sept. 8, 1922.

Leslie Samuels, the second Democrat named in the Simmons Road

Bill, was never in favor of it. Samuels, “at no time had authorized the use of his

name in the suit” and asked the lawyers “to strike his name from the petition as one

of the plaintiffs.” KENTUCKY POST (Covington, Ky.), Sep. 15, 1922, at 4.

Mart L. Conley was the third Democrat named in the Simmons Road

Bill. His interest in the lawsuit came to a sad end a little over a week after the

circuit court ruled. On September 24, 1922, after more than three years of battling

kidney disease, including surgery by Dr. Mayo himself in Minneapolis, Conley

died at the age of 51. BIG SANDY NEWS (Louisa, Ky.), Sep. 29, 1922, at 2.

One might think the fourth Democrat named in the bill, Benjamin

Weille, would not care one way or the other. He was named to the original board

by Governor Morrow and named again in the Simmons Bill. No matter how the

courts ruled, he would be a member of the commission. BRECKENRIDGE NEWS

(Hardinsburg, Ky.), June 09, 1920, at 4. If anything, he might have favored the

Simmons Bill because he would have been paid for doing the same work. But he,

too, stated he opposed the Simmons Road Bill and expressly asked “to be named as

a defendant with the other members of the present commission . . . .” BIG SANDY

NEWS (Louisa, Ky.), Sept. 8, 1922, at 5.

-314- Of these potential straw men plaintiffs, only two were named in the

petition—General Sibert and Mart Conley. Then Conley died. And then there was

one—General Sibert. The “et al.” that appears in the caption in our law books

represents no one at all.

49. Sibert v. Garrett is nothing more than an improper advisory opinion

As discussed, Sibert and the others had no basis, statutory or

otherwise, for claiming a judicial declaration of their rights. Two of them,

Samuels and Weille, expressly declined to make such a claim. And even though

Sibert v. Garrett is understood and cited as deciding the constitutionality of a

statute, it did not review a statute, but merely “an act attempted to be passed.”

“There was no constitutional challenge to enacted legislation.” Bevin v.

Commonwealth ex rel. Beshear, 563 S.W.3d 74, 85 (Ky. 2018) (citing Philpot v.

Haviland, 880 S.W.2d 550, 553 (Ky. 1994)); cf. Utz v. City of Newport, 252

S.W.2d 434, 436–37 (Ky. 1952) (no exception for “proposed ordinance” or “a

proposed amendment to the Constitution” or “a call for a constitutional

convention”).

The 1922 session of the General Assembly ended without the

Simmons Road Bill becoming law. However, failed bills often return in

subsequent sessions. The view from 1922 was that this bill might make a return in

1924, or it might not. But it would certainly have been helpful for legislators to

-315- know ahead of time whether the bill could withstand constitutional muster. That is

why Sibert v. Garrett was initiated, and that makes Sibert v. Garrett nothing but an

advisory opinion.

“‘The Court will not render advisory opinions or consider matters

which may or may not occur in the future.’” Nordike v. Nordike, 231 S.W.3d 733,

739 (Ky. 2007) (quoting Pursley v. Pursley, 144 S.W.3d 820, 827 n.27 (Ky. 2004)

(quoting Richardson v. Richardson, 598 S.W.2d 791, 795 (Tenn. App. 1980))).

“Our courts do not function to give advisory opinions, even on important public

issues, unless there is an actual case in controversy.” Philpot v. Patton, 837

S.W.2d 491, 493 (Ky. 1992). In 1922, the Court of Appeals broke these rules.

Even when constitutionally or statutorily authorized, “[a]dvisory

opinions have no precedential value . . . and thus reliance on a court’s advisory

opinion is erroneous.” 20 Am. Jur. 2d Courts § 34 (2024); Gordon, Declaratory

Judgments, 10 KY. L.J. at 13 (“it is very properly said . . . ‘an advisory opinion . . .

can have no binding effect’” (citation omitted)).

I am convinced that Sibert v. Garrett, at best, is an advisory opinion

that has no precedential value. But there is so much more wrong with the opinion

to bolster my argument that Sibert v. Garrett should be purged from our

jurisprudence along with Pratt 1 and 2.

-316- 50. Sibert v. Garrett ignored decisive facts before revisiting Pratt 1

Judge Gus Thomas who authored Sibert v. Garrett said there were “a

number of urged grounds” to hold the Simmons Road Bill unconstitutional. Sibert,

246 S.W. at 456. He thought only three of them deserved the Court’s attention.

But two of those arguments received hardly any attention at all. Id. The opinion

devotes a single paragraph each to two grounds argued on appeal—grounds based

on indisputable facts—that should have determined the case’s outcome.

One argument, dispatched on more than questionable reasoning, was

that the Simmons Bill failed to comply with § 46 of Kentucky’s Constitution. Bills

that appropriate money or create a debt require 20 of 38 votes in the Senate and

this bill received only 19 votes. Id.; CONST. OF KY. of 1891, § 46. But Judge

Thomas said § 46 was not applicable to the facts.

The § 46 argument “would be well taken[,]” said Thomas, “if there

was no prior appropriation of funds for the payment of salaries and expenses of the

state road department[.]” Sibert, 246 S.W. at 461. “[T]he 1920 act appropriated

$250,000 for the payment of salaries and expenses of the state road department”;

therefore, “the 1922 act . . . was not an original appropriation of money, but only

the distribution, in the manner indicated, of an appropriation already made . . . .”

Id. There is a problem with Judge Thomas’s facts. They are not true.

-317- The 1920 act did not appropriate $250,000. That figure appears

nowhere in the act. 1920 Ky. Acts 76–101, ch. 17, §§ 1–12. The law merely

capped expenses, saying, “Total expenses of the Department shall not exceed in

the aggregate, in any one year, ten per centum of the total road fund for said year.”

Id. at 81, ch. 17, § 2. The 1922 Simmons Road Bill would have limited expenses

to that “ten per centum” amount but also added monies “received by the road fund

on account of registration fees for motor vehicles, gasoline tax, and the annual ad

valorem tax in Kentucky, but exclusive of any money received from the proceeds

of any bonds issued by the Commonwealth for road purposes.” 1922 Ky. Acts

465, app. The State Road Commission budget was not $250,000 as Judge Thomas

said, but the cap on expenditures certainly did change.

Furthermore, although capped, expenditures did increase. The 1922

act did not allow the Commission itself to employ staff, but the Simmons Road Bill

would have. Compare 1920 Ky. Acts 77–81, ch. 17, §§ 1, 2 with 1922 Ky. Acts

464 app. Also, appropriation for salaries was authorized in the 1922 act only for

the State Highway Engineer “and such assistants and employees” as he hired.

1922 Ky. Acts 80–81, § 2. The Simmons Road Bill included the same salary for

the State Highway Engineer and “such assistants and employees” as the

Commission itself hired. But it also authorized an additional $15,800 for the

salaries of the four commissioners that was not appropriated in the 1920 act.

-318- Compare 1920 Ky. Acts 80–81, ch. 17, § 2 with 1922 Ky. Acts 463–64 app. The

Court’s ruling on this point depended upon a made-up appropriation in the prior

law of $250,000.

A second argument relied on the irrefutable fact that the Lieutenant

Governor, the presiding officer of the Senate, did not sign the bill before the

General Assembly adjourned sine die. Although signing the bill was a ministerial

duty, Kavanaugh v. Chandler makes it very clear that once the legislature adjourns,

the Lieutenant Governor’s signature cannot “breathe the breath of life into the bills

and transform them into living laws, either at his pleasure or under orders of the

court.” 72 S.W.2d 1003, 1006 (Ky. 1934). For that reason alone, although there

are others, the Simmons Road Bill was not a statute any court could measure for its

constitutionality.

How did Judge Thomas handle that obvious argument? He simply

said he doubted whether the signature could be withheld. Sibert, 246 S.W. at 461.

Of course, he was correct, but he failed to think one iota further or he would have

realized that, after adjournment, the duty to sign is irrelevant, and its absence from

the bill is fatal to its becoming a law. Judge Thomas made a conscious decision

not to think harder on this case. “Be this, however, as it may,” he said, “we have

concluded also not to elaborate the point . . . .” Sibert, 246 S.W. at 461. Looking

more closely might have yielded a better, non-advisory opinion.

-319- These arguments were pushed aside for easier fare but should have

been grounds for remanding to the circuit court with instructions to dismiss the

action brought under the Declaration of Rights Act as not within the scope of that

law, and because deciding the constitutionality of a bill not yet a law such as the

Simmons Road Bill amounts to an advisory opinion.

As discussed, infra, Judge Thomas did elaborate on the remaining

argument, the argument “[t]hat the Legislature possessed no constitutional right to

name in the bill the first members of the commission, or to elect their successors

thereafter[.]” Id. at 456. He relied, of course, on Pratt 1. But turning to that old

and ignored opinion was not original with Judge Thomas. He got the idea from

Judge Sam Hurst who rendered the circuit court judgment.

51. The Sibert v. Garrett circuit judge—Sam Hurst

Not only was the Declaration of Rights Act a new law when Sibert

sued Garrett, but the circuit judge was also quite new himself. He came to the

bench, generally, and to this case, specifically, amidst some real controversy.

In the summer of 1920, Sam Hurst was a first-time candidate in a

three-way race for “the republican nomination for Circuit Judge in the Lee-Estill-

Breathitt district”; one of the other candidates he defeated was his cousin, W. Y.

Kash. DAILY REGISTER (Richmond, Ky.), Aug. 10, 1920, at 2. It was a nasty

-320- campaign and newspapers across the state covered the post-election contest Kash

waged. See, e.g., COURIER-JOURNAL (Louisville, Ky.), Aug. 11, 1920, at 9.

Kash brought lawsuits in Breathitt County and Franklin County

charging Hurst and his campaign with vote buying,136 fraud, taking money from

corporations, padding the votes, and stuffing ballot boxes. BIG SANDY NEWS

(Louisa, Ky.), Aug. 20, 1920, at 2. The contest eventually made its way to the

Court of Appeals before Sam Hurst was named the victor in the primary election

by a single vote. Kash v. Hurst, 224 S.W. 757, 762 (Ky. 1920) (Because Sam

Hurst “received a plurality of 1 vote, the lower court properly declared him the

Republican nominee for the office aforesaid.”).

On November 2, 1920, Hurst faced off in the General Election against

Judge J. K. Roberts who was the incumbent, having been appointed to fill the

vacancy. COURIER-JOURNAL (Louisville, Ky.), Oct. 26, 1920, at 4. That election

was also close. Hurst won “on the face of the returns by 205 votes” and Judge

Roberts’ attorney lodged a protest with the State Board of Elections. COURIER-

JOURNAL (Louisville, Ky.), Nov. 11, 1920, at 3. His protest appears to have had

something to do with the “[s]earch . . . for a ballot box said to have been thrown

136 Incredibly, Kash claimed “$20,000 [(more than $300,000 in today’s currency)] was used in bribing voters and corrupting election officers . . . [and] fully 500 votes were influenced in favor of Mr. Hurst . . . . In his response, Mr. Hurst . . . alleg[ed] that Mr. Kash used $25,000 in the campaign, of which $10,000 was contributed by corporations. He charges that more than 750 votes were corrupted in favor of Mr. Kash[.]” DAILY REGISTER (Richmond, Ky.), Sep. 8, 1920, at 2.

-321- into the Kentucky River in a Breathitt County precinct. Breathitt is a Democratic

county.” Id.; BRECKINRIDGE NEWS (Hardinsburg, Ky.), Nov. 17, 1920, at 2.

It may be only coincidence that the lawyer who defended Sam Hurst

against Judge Roberts’ protest was formerly a Court of Appeals Judge. Hurst’s

lawyer was Ed O’Rear, the fourth Republican judge to vote with the majority in

Pratt 1. Id.

Controversy found Judge Hurst again when Governor Morrow

appointed him to fill in for Franklin Circuit Judge R. L. Stout who was

recuperating in California from surgery. COURIER-JOURNAL (Louisville, Ky.),

Aug. 28, 1922, at 12. It would be Sam Hurst who presided over the Franklin

Circuit Court’s docket for September 1922, beginning with Sibert v. Garrett. Id.

Later, politics was suspected in Governor Morrow’s appointment of Hurst to sit in

Franklin County in similar cases which the Governor “hastened to deny . . . .”

COURIER-JOURNAL (Louisville, Ky.), Dec. 31, 1922, at 1; Id., Jan. 1, 1923, at 1

(with the headline “Politics Denied in Naming Hurst”).

I doubt Judge Hurst’s appointment was anything other than a

coincidence, no matter how fortuitous it may have been for Governor Morrow to

appoint a judge to hear Sibert v. Garrett who had been counseled by Judge O’Rear.

-322- 52. Sibert v. Garrett in the circuit court

We learn nothing of what occurred in the circuit court by reading the

Court of Appeals opinion in Sibert v. Garrett except that the Simmons Road Bill

was found unconstitutional. We know the petition had to claim the bill was a law

or it could not go forward. We know from the press that Garrett, being represented

by the Attorney General, argued it was not a law because it failed to pass with the

sufficient vote tally required by § 46, but Judge Hurst said it was not an

appropriation. WEEKLY MESSENGER (Mayfield, Ky.), Sep. 22,1922, at 3. We

know Garrett’s second argument was that it was not signed by the presiding

officer, but Judge Hurst said lack of the presiding officer’s signature “did not

invalidate it.” Id. So, we know Judge Hurst treated the bill as an enacted law.

As a third argument, Garrett said “the action of the general assembly

in appointing members of the commission was an invasion of the prerogatives of

the executive department.” Id. It is no surprise that argument came last. As

judges would soon thereafter point out, such reasoning had been rejected and the

only Kentucky opinion that ever expressed it, Pratt 1, was ignored for years. But,

as is sometimes the case, a lawyer can be surprised which of his sails catches the

wind. He never knows what argument will stir the judge’s attention.

Had Judge Hurst heard of that theory before? Had he and his lawyer,

Judge Ed O’Rear, ever discussed Pratt 1? No matter. The third argument

-323- persuaded him. “The decision of Judge Hurst was based on an opinion of the court

of appeals in the case of Pratt against Breckinridge . . . .” PUBLIC LEDGER

(Maysville, Ky.), Sep. 16, 1922, at 2. Relying on Pratt 1, Judge Hurst declared the

Simmons Road Bill a law, but unconstitutional because the General Assembly

could not elect the State Road Commission’s members. The case was expedited to

the fall term of the Court of Appeals.

53. The oral argument in Sibert v. Garrett

“There was an unusual number of visitors in attendance” at 10:20

AM, on October 27, 1922, when the Clerk called the case of Sibert v. Garrett.

STATE JOURNAL (Frankfort, Ky.), Oct. 26, 1922, at 1. Lawyers for each side were

given an hour and a quarter to make their arguments. Id. Oddly, the Attorney

General, representing Garrett, the appellee, went first. Id.

Understandably, the Attorney General did not lead with the argument

that won in the circuit court. Id. There was a wealth of jurisprudence against it.

He first argued on the basis of § 46, then on the ground that the Lieutenant

Governor never signed the bill. Id. Only then did he argue Pratt 1. Id.

General Sibert’s counsel, Alexander Humphrey (1848-1928),

countered with the arguments one would expect in supporting the constitutionality

of the bill. His defense of the General Assembly’s authority under the Constitution

to itself elect members of boards and commissions was consistent with what I have

-324- explained in excruciating detail in this dissent. COURIER-JOURNAL (Louisville,

Ky.), Oct. 28, 1922, at 2. I believe he was right, but when the Court rendered the

opinion, only Judge William R. Clay (1864-1938) agreed with Humphrey and me.

54. The absurdity of the Sibert v. Garrett majority opinion

With the confidence of a Harvard professor, Judge Gus Thomas

repeated all the pablum of Pratt 1—starting with full quotes of §§ 27 and 28 of the

Constitution; he could not resist rediscovering that hidden judicial power first

found by Judge DuRelle after a century of its hiding in those provisions. Yes,

somehow, Judge Thomas found in those words a rule (and a back-up rule, to boot)

that “the Legislature is forbidden to exercise [the appointment power], but, if not

strictly so, that the officer should be appointed by that department with which his

duties are allied and closely connected . . . .” Sibert, 246 S.W. at 456 (emphasis

added). An amorphous standard to say the least. This clearly never was

Kentucky’s jurisprudence.

Then, of course, Judge Thomas repeats DuRelle’s myth that “history

tells us [§ 28] came from the pen of the great declaimer of American

independence, Thomas Jefferson,” and even embellishes the story saying

“delegates from Kentucky, . . . waited upon him, and he penned for them the

substance of what is now section 28[.]” Id. at 457. This is simply not true. See,

Section 16, supra. From this, Judge Thomas’s ingenious mind, dazzled by theory,

-325- and extravagantly attached to the notion of simplicity in government was inspired

to his metaphoric expression of “the American tripod form of government” which I

previously described as naïve and deceptive. Id.; see, Section 17, supra.

Judge Thomas then cites what appears to be every authority cited by

both parties before the Court, nearly four dozen, before saying, “to discuss the

grounds upon which the court in each of them rested its opinion, and to point out

the distinguishing features between many of them, would expand this opinion to

the dimensions of an ordinary size law book[.]” Sibert, 246 S.W. at 457. Don’t I

know it. But I am suspicious that he not only refrained from discussing the cases

cited, he may also have skipped reading them and examining the law closely

enough to discover Pratt 1 is just such the aberration that it is.

Judge Thomas’ opinion said that since at least 1906, “the doctrine of

the Pratt–Breckinridge Case has been scrupulously followed by the Legislature in

not assuming to elect officers, except those whose duties pertain to its own

sessions, and, except that of librarian, the grounds for which are fully set out in the

Pratt–Breckinridge opinion, as well as many of the foreign cases supra, notably the

late Arizona case of Dunbar v. Cronin.” Sibert, 246 S.W. at 459. But, as Judge

Clay’s dissent authoritatively points out, that was not so.

I urge the reading of Judge Clay’s dissent. It is as authoritative an

account of the actual state of the law on the General Assembly’s power to elect

-326- members to boards and commissions available in one place. Specifically on the

influence of Pratt 1 from its rendering to the rendering of Sibert, Judge Clay is

dead on. “It is said in the majority opinion that Pratt v. Breckinridge has been

acquiesced in for a long time, and that the question should be finally settled. As a

matter of fact, however, Pratt v. Breckinridge has never been acquiesced in, but

has been entirely ignored.” Sibert, 246 S.W. a 466 (Clay, J., dissenting).

Judge Thomas’s citation to Dunbar v. Cronin in his quote above is

perplexing. Perhaps it is proof Thomas did not read it. As discussed in Section 37,

supra, Dunbar rejected the reasoning of Pratt 1 in favor of “the great body of

American law on that subject . . . .” Dunbar, 164 P. 447, 451–52. As for the fact

of Judge Thomas’s assertion Pratt 1 was scrupulously followed, it is refuted by

Governor Willson’s State of the Commonwealth Address; he, for one, would not

agree with Judge Thomas’s facts.

The absurdity of Sibert shows in what Judge Thomas obviously

forgot—that a mere two years earlier, he was part of a unanimous court that held

“the Legislature had the undoubted power to make these appointments itself . . . .”

Sewell, 220 S.W. at 519. Judge Clay’s dissent obviously did not sway him then.

But that does not mean Judge Thomas was not eventually made to see the light.

-327- 55. Judge Thomas changes his mind on Pratt 1

The relationship between Judge Thomas and Judge Clay is revealed in

apparently well-known anecdotes, repeated in the press upon Judge Thomas’s

passing. For example, “[t]he court was in consultation one day when Thomas

expounded his views on a case with unusual zeal.” COURIER-JOURNAL (Louisville,

KY.), June 4, 1951, at 1. Judge Clay interrupted him, saying “‘Judge, that’s

nothing but pure dictum.’ ‘By God, we’ll make it sticktum,’ Thomas replied.” Id.

But another anecdote may have involved the very legal question

Thomas flip-flopped on—Pratt 1. The Kentucky Post reported it this way:

[Judge Thomas’s] flair for argument was great. Once Judge William Rogers Clay stated a case, then cited what he considered the applicable law. Judge Thomas arose to dispute Clay’s conclusions and challenged:

“Judge Clay, if you’ll show me airy bit of law to support your position, I’ll eat it . . . book, cover and all.”

Hastily, Judge Clay accepted the challenge. He went to an adjoining bookcase, produced authorities that justified his position and then retorted:

“Now, eat it.”

Judge Thomas, chagrined, merely retorted with an expletive.

KENTUCKY POST (Covington, Ky.), June 7, 1951, at 1.

We will never know what legal point was being argued. But we do

know this. Judge Thomas completely reversed his view of Pratt 1. When he

-328- authored Lyttle v. Wilson in 1934, he addressed the appellee’s reliance on Pratt 1

and cases subsequently rendered, probably just as Judge Clay would have in 1922.

67 S.W.2d 498 (Ky. 1934). Judge Clay and the rest of the Court concurred.

Pratt 1 was decided by “a bare majority of the court[,]” said Judge

Thomas before elaborating, as follows:

The dissenting opinion in that case by three members of the court very much weakens the reasoning of the majority opinion. In addition thereto, the cases supra, and others referred to therein [coming after Pratt 1], utterly ignored the doctrine of the majority opinion in the Pratt Case, and approved the position taken by the minority members in the dissenting opinion. But in none of them was the Pratt majority opinion expressly overruled, and we will not do so in this case, since the conclusion we have reached renders it unnecessary . . . .

Id. at 501–02. It is now well past time to overrule Pratt 1 and the opinions

misguided by following it, starting with Sibert v. Garrett.

My take on Sibert is that everyone wanted the Simmons Road Bill to

go away. An inexperienced circuit judge whose ethics were questioned presumed

it was a law and saw Pratt 1 as a way to get shed of it. Judge Thomas, with just

one disinterested claimant left, saw the same easy path before him and took it.

Unfortunately, Sibert gave us a “qualification” to the General

Assembly’s authority under § 93 that has lingered: “the Legislature is given full

power to determine by whom the appointment of all inferior officers and agents

may be made (section 93, Constitution), subject to the qualification, laid down in

-329- the Sibert Case, that it may not itself make appointments to office.” Craig v.

O’Rear, 251 S.W. 828, 831 (Ky. 1923) (emphasis added). But the jurists of our

courts must open their eyes. We cannot use the mysticism and myth of our

separation-of-powers provisions to make up language to append to the express

words of the Constitution. That is what Sibert did. That is what Pratt 1 did. And

building on the repugnance of these opinions, that is what LRC v. Brown did.

56. LRC v. Brown is a compromised opinion

Although deemed a seminal opinion, LRC v. Brown is mortally tainted

by its reliance on the dreadfully faulty opinions of Pratt 1 and Sibert. LRC v.

Brown also needlessly demeans an opinion I consider nearly unassailable in its

constitutional jurisprudence—Brown v. Barkley, 628 S.W.2d 616 (Ky. 1982).

Why, is the question. Two participants in LRC v. Brown give us a likely answer.

Snyder & Ireland tell us there was a “dramatic change in composition

of the Supreme Court between Brown v. Barkley and L.R.C. v. Brown.” Snyder &

Ireland, Analysis, at 197. It may not have been as dramatic a change as in 1900

when the Court switched political party dominance, but “four of the seven seats on

the Supreme Court changed hands, with three of them being won by Judges of the

Court of Appeals.” Id. at 197–98. The law journal article continues:

These changes in the Court’s composition were significant in many respects. Chief Justice Palmore and Justice

-330- Lukowsky[137] had intellectually dominated the Palmore Court, with dissenting opinions being a rare occurrence. [Palmore did not stand for re-election and Lukowsky died even before Barkley was rendered]. Also, when the intermediate Kentucky Court of Appeals was created in 1975, the friction between it and the Palmore Court was instantaneous. The Kentucky Supreme Court promulgated rules that denigrated the Court of Appeals, such as . . . preventing the Court [of Appeals] from deciding for itself which of its opinions to publish . . . . The Kentucky Supreme Court also published opinions expressing criticism of Court of Appeals’ opinions in uncharacter- istically blunt language. Many Court watchers therefore predicted that, having chafed under the Palmore regime, the three justices arriving from the Court of Appeals would be reluctant to follow the former Chief Justice’s excessive rhetoric in Brown v. Barkley.

Id. at 1298. It should go without saying, I do not agree that Barkley’s rhetoric is

excessive; certainly not as it relates to the issues discussed in this dissent.

137 I have considered Justice Lukowsky’s career and included this footnote in an opinion:

Justice Robert Lukowsky [(1927-1981)], who died too soon at age 54, should best be remembered for his constitutional acumen, notable in cases such as Stone v. Graham, 599 S.W.2d 157, 159 (Ky. 1980) (Lukowsky, J., dissenting), rev’d, 449 U.S. 39, 101 S. Ct. 192, 66 L. Ed. 2d 199 (1980) (Ten Commandments case) and Kentucky State Bd. for Elem. and Secondary Ed. v. Rudasill, 589 S.W.2d 877 (Ky. 1979) (limiting state regulation of private and parochial schools). Unfortunately, his most frequently quoted bit of jurisprudence is this well-worn phrase: “The appellants will not be permitted to feed one can of worms to the trial judge and another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010).

Owens v. Commonwealth, 512 S.W.3d 1, 15 n.14 (Ky. App. 2017).

-331- It should also go without saying that such extra-judicial motivations as

Snyder & Ireland describe may be different in degree from those affecting the

decision-making in Pratt 1 and Sibert, but they are no different in their nature.

57. Conclusion

LRC v. Brown needs no further discussion in this dissent. Its flaws

could have been avoided if it simply had ruled as it promised it would, treating the

case as a delegation-of-powers case. But it is never too late to correct the flow of

our case law, no matter how long aberrant opinions have lingered in the

backwaters of our jurisprudence. See Calloway Cnty. Sheriff’s Department v.

Woodall, 607 S.W.3d 557 (Ky. 2020).

In Pratt 1 and 2, a partisan and politically driven Court of Appeals

twisted the language and meaning of §§ 27 and 28 to grasp unwarranted judicial

power. The Court wielded that power to relocate the bounds of the departments of

government to implement the agenda of installing as Attorney General a politician

with an affinity for party goals. The passage of time, a forgetfulness of these

historical events, and extra-judicial influences of their own, led subsequent courts

to see Pratt 1 and 2 as something they are not—sound jurisprudence.

For these reasons, I cannot agree with the majority Opinion. For these

reasons, I sincerely hope the Supreme Court will consider clarifying the “veering”

of our constitutional jurisprudence to which LRC v. Brown alludes.

-332- BRIEFS FOR COMMONWEALTH, BRIEFS FOR GOVERNOR ANDY EX REL. ATTORNEY GENERAL BESHEAR AND SECRETARY RUSSELL COLEMAN: LINDY CASEBIER:

Matthew F. Kuhn S. Travis Mayo Brett R. Nolan Frankfort, Kentucky Heather L. Becker Michael R. Wajda Sarah Grider Cronan Frankfort, Kentucky Frankfort, Kentucky

BRIEFS FOR JONATHAN SHELL, Mitchel T. Denham COMMISSIONER OF THE Erin M. Shaughnessy DEPARTMENT OF AGRICULTURE Louisville, Kentucky AND MARK LYNN, CHAIRMAN OF THE STATE FAIR BOARD: ORAL ARGUMENT FOR GOVERNOR ANDY BESHEAR Joseph A. Bilby AND SECRETARY LINDY Frankfort, Kentucky CASEBIER:

Ellen Benzing S. Travis Mayo Louisville, Kentucky Frankfort, Kentucky

ORAL ARGUMENT FOR COMMONWEALTH OF KENTUCKY, EX REL. ATTORNEY GENERAL:

Matthew F. Kuhn Frankfort, Kentucky

-333-