SCOTUSBlog LiveBlog will begin coverage of the open session of the US Supreme Court at 10am.  Justice Roberts announced yesterday that the last three cases will be decided today, including the first case in decades to squarely interpret the meaning of the language of the Second Amendment in the context of gun control regulation, District of Columbia v. Heller (07-290).

From live SCOTUSBlog LiveBlog:

10:21 Tom Goldstein - Guns is not being decided today. Last opinion coming now."

That opinion, the fourth of the day, involved Native American tribal courts It joined opinions which denied states the right to extend the death penalty to cases involving crimes short of murder and one which involved the Confrontation Clause of the Sixth Amendment. In addition, the Court, in the Exxon Valdez case, limited punitive damages under maritime law. But no DC v. Heller...

The Chief Justice announced from the courtroom "that the Court will issue all of its remaining opinions tomorrow at 10 a.m." Tom Glodstein, the Court's cockiest commentator and conference card-counter, is predicting "that in addition to Justice Scalia likely writing Heller, Justice Alito is likely writing Davis v. FEC."

Tune in tomorrow, same Bat time, same Bat channel...

The US Supreme Court is entering it's final week, barring a break in precedent. While Monday, June 30, is the last calendared day for opinions, SCOTUSBlog is reporting that at least one opinion will be rendered today (Weds) and perhaps a few more on Thursday. At least seven opinions are believed to be outstanding, including the much awaited District of Columbia v. Heller Second Amendment case.

To follow today's activities, SCOTUSBlog will be live blogging today starting at 10am.

The recent decision in Boumediene v. Bush highlighted the importance of the perspective of legal history in the interpretation of our nearly 220-year-old Constitution. Moreover, an amicus brief by a group of professional historians is prominently cited in the meat of the opinion. However, the case also might suggest the danger that history can be twisted to any purpose, given that both the lead opinion and dissents both employ historical arguments.

The case turned on whether detainees at the Guantanamo Bay military base could employ the common law writ of habeas corpus to challenge their imprisonment, even though that was specifically denied under a provision of the Military Commissions Act of 2006. In a 5-4 decision the court found that the the detainees had that right and that portion of the MCA was unconstitutional.

Justice Kennedy' s opinion is to a large degree an historical survey of the Anglo-American writ of habeas corpus. He draws deeply upon the amicus brief of historians of English and American law signed by Sir John H. Baker (Cambridge), Lawrence M. Friedman (Stanford Law), Sarah Barringer Gordon (Penn Law), and Hendrik A. Hartog and Stanley N. Katz (Princeton) -- to name only a few. Kennedy's use of history is respectful; he is careful to note what the historical precedents do not show.

The Scalia and Roberts dissents also use history, although their focus on a case involving Nazi detainees after World War II (Johnson v. Eisentrager, 339 U.S. 763 (1950)) tends to found their arguments on a questionable historical analogy.

The Boumediene decision will likely not be the only decision this term to ride on historical opinion: expect more historical ruminations when the first case to re-examine the Second Amendment in years (D.C. v. Heller) is decided (maybe tomorrow or Thursday). Speculation is rampant that Scalia is writing the majority opinion, so a scholarly excursion into the late 18th century is pretty certain; perhaps even we will hear echos (probably in a dissent) of a fascinating animus brief by three historical linguists.

Despite our rumored history as a federalist state where power is shared between the center and the regions, state constitutional history has gotten short shift by the writers (and more likely) the publishers of history. Books on the history of the federal constitution and its framers can be purchased by the pallet-load, while most any state's library of books of its constitutional history would fit in one of those eco-friendly cloth shopping bags. Ironically, even the current defenders of the flame of pure federalism who decry incursions on state prerogatives fill their catalogues with books on the 1787 federal constitutional convention in Philadelphia, not the one that meat three years later to revise the Pennsylvania constitution or (to give another example) the one that met in 1792 in Danville to draft Kentucky’s first constitution.

This situation obtains in every state, but is particularly acute regarding our commonwealth. Nonetheless there are a few very readable books that every Kentucky lawyer with an interest in the Kentucky constitution should read.

 

Robert M. Ireland, The Kentucky State Constitution: A Reference Guide (Westport, Conn: Greenwood Press, 1999).

No list on the state constitution or indeed the history of Kentucky, can be created without including a title or two written by UK history professor Bob Ireland, the unquestioned dean of Kentucky legal history. I could (and well may one day) write an entire piece exclusively on the important articles he has written on the history of state criminal law or its institutions of government. In the 1999, the wisdom accumulated from writing three books and a dozen articles, was employed in writing an encyclopedia of the Kentucky constitution. Its organization as a guide perhaps makes it a little harder reading than his other books, but there are so many interesting points, I’d encourage a try.

Lowell H. Harrison’s Kentucky’s Road to Statehood (Lexington: University Press of Kentucky, 1992).

The main thrust of Harrison’s book is the decade-long struggle on Kentucky’s frontiersmen (along with a few transplanted Virginia gentry) to obtain statehood from Virginia. However, when the delegates to the tenth convention were in grasp of the prize, they realized that they needed a constitution. Harrison effectively recounts how the 1792 constitution was shaped under the hands of George Nicholas to mix the democratic impulses of the woodsmen pushing into the new state’s interior with the concerns for order expressed by the owners of estates in the more settled Bluegrass. The result was a document that included the revolutionary idea of universal male suffrage (without the property requirements in other state charters) but allowed direct election only of the lower house of the bicameral legislature. The founders further evened the deck with a timeless bill of rights that still is part of our current state constitution.

 

Joan Wells Coward’s Kentucky in the New Republic: The Process of Constitution Making (Lexington: University Press of Kentucky, 1979).

Coward’s monograph starts with a discussion of the 1792 convention that complements Harrison’s chapters, before relating the social and economic changes wrought by Kentucky’s growth in the 1790s—changes that led to the 1799 convention that revised the document. The issue of slavery gets a bit of attention as this period was the state’s last flirtation with abolishing the institution before the Civil War took it out of Kentucky’s hands. Ultimately the 1799 avoided more than slavery, failing not only to stem the growing oligarchic control of county government, but fostered it by giving the county court the major role in selecting its own members and the sheriff. Nonetheless, by instituting the popular election of the governor and the upper house of the legislature, the state came closer to true democracy

 

Robert M. Ireland’s County Courts in Antebellum Kentucky

Ireland’s book on the powerful county courts of the antebellum era has perhaps the best discussion of the background to and activities of the 1849 constitutional convention—simply because issues with the unelected local governments so highlighted the need for more democracy in the state constitution (and because there is no monograph of the convention). Under the 1799 constitution, the county court was the center of all power in the localities. From masterful research in the minute order books and the debates of the 1849-50 constitutional convention, Ireland bring alive these long-extinguished political struggles still-embedded in the sinews of our constitution.

 

Two books discussed in a prior post bear repeat mention. First, Hambleton Tapp and James C. Klotter, Kentucky: Decades of Discord, 1865-1900 (Frankfort: Kentucky Historical Society, 1977) offers the best treatment of the historical background and activities of the 1890 constitutional convention. Second, (more self-promotion) Kurt X. Metzmeier, Michael Whiteman and Jason Nemes, United At Last: The Judicial Article and the Struggle to Reform Kentucky's Courts (Frankfort, Ky.: Court of Justice, 2006) attempts to explain the forces behind the successful 1975 revision of the constitutions judicial article.

The library of good historical treatments of Kentucky’s constitutional history is a small one, dwarfed by many shelves that can be filled with books on the past lore of the University of Kentucky basketball program or on the history of the Kentucky Derby. There is no monographic treatment of the activities off the 1849-50 or 1890 constitutional conventions—despite reams of official documents and full-runs of leading newspapers on microfiche. There is no biography of George Nicholas, or many of the leading figures in Kentucky legal history. So we honor what we have, while hoping for more.

I recently took research foray into the lovely Ohio river town of Maysville, Kentucky. (For some reason, my trip did not attract the same attention as that of George Clooney and Rene Zellwenger--who premiered their new film, Leatherheads, in George’s Aunt Rosemary’s hometown--or that of Hillary Clinton). Maysville is one of the oldest settlements in Kentucky; its role in U.S. history is as the key terminus in the network of roads to the American West in Henry’s Clay’s ill-fated American System. President Andrew Jackson, who despised both Clay and federal government expenditures, killed the plan and it would not be until President Dwight Eisenhower funded the National Interstate and Defense Highways Act of 1956 (popular name for the Federal-Aid Highway Act of 1956) before a federal transportation scheme this comprehensive would be realized.

While I was there, I took the opportunity to visit the well preserved law office of US Supreme Court Justice Stanley F. Reed. (This is in stark contrast to the St. Louis pizzeria that marks Justice Brandeis first office). I spent a little too much time in the library of the Kentucky Gateway Museum Center to visit Reed's grave, but there are really nice pics on Find-a-Grave.

With the exception of obtaining a degree from the Sorbonne in Paris (the one in France, not Bourbon County), Reed’s early career was pretty typical for a Kentucky lawyer of his time. He read law and was admitted to the bar on 1910 and set up a practice in downtown Maysville near the historic Mason County courthouse. He was elected to the Kentucky General Assembly in 1912, where he served two terms in the house before enlisting in the US Army when America entered WWI. He returned to Kentucky after the war and built a corporate practice with clients like the Kentucky Burley Tobacco Growers Association. Along the way he purchased a large Mason County farm where he raised blue-ribbon Holsteins.

Reed's interest in farming and expertise in the law of agricultural cooperatives made him a natural candidate to join the Federal Farm Board in 1929 as general-counsel. Reed, a Democrat, went on to serve in the same position in the Reconstruction Finance Corporation in the Roosevelt administration, where he helped develop the New Deal's commodity price support policies. In 1935, he was named the Solicitor-General, the third Kentuckian (after Benjamin H. Bristow and UofL law school alumnus William Bullitt Marshall) to serve in that position. (Pop quiz: Reed is one of four future-Supreme Court justices to wear the striped pants and grey morning coat, who are the other three? Hint: One of them is NOT Robert Bork).

In 1938 Reed was appointed to the Supreme Court (the last justice to serve without a law degree; he nicely bookends his fellow Kentuckian John Marshall Harlan, who was the first). He replaced George Sutherland, one of the dying breed of reactionary justices whose majority FDR's appointments had erased. Reed was a solid New Dealer on the court, despite some conservative leanings on the establishment clause and on the incorporation doctrine (which holds that the adoption of the 14th amendment made the federal Bill of Rights apply to the states). He was a workhorse who crafted over 300 opinions in his two decades on the court. Although racial covenants in some of his Kentucky properties caused him to recuse himself in Shelley v. Kramer in 1948, he was in the majority in several of the cases in the 1940s and 1950s that affirmed the civil rights of African Americans, including the 1944 case of Smith v. Allwright, which he authored. Nonetheless, Reed was thought to have had problems with aspects of the holding in Brown v. Board of Education, and may have even considered dissenting, but Warren brought him around and the unanimity of the decision gave it great moral authority. (See the excellent Robert H. Jackson Center sponsored symposium, Supreme Court Law Clerks' Recollections of Brown v. Board of Education, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892367>, for an interesting behind-the-scenes view of the case from one of Reed's law clerks, Jack Fassett).

Reed retired to his Mason County farm in 1957, where he continued to raise prize dairy cows until shortly before his death in a NY nursing home in 1980.

In a recent post, I listed some of the most useful books that a new lawyer or recent transplant to the Bluegrass can use to orient themselves to the history and politics that lies just under the surface of Kentucky jurisprudence. But history and politics aren’t the whole story. After all, they deal with the big legal contests and the tectonic shifts in policy and society. What about the life of the working lawyer practicing in small towns and big city courts, meeting in lunchrooms and courthouse porticos between court appearances and sharing stories with fellow toilers? Or their clients: ordinary people whose mundane lives occasionally intersect with the majesty of the common law of Chancellor Coke and Justice Story?

This history--what anthropologists would call “legal culture”--is best captured in memoirs and in collections of the stories and anecdotes that lawyers would share in idle moments in courthouse hallways. Sadly, it is a culture that that has been wounded by a more high-paced world and the drive to maximize billable hours, and may be finished off by e-filing. Nonetheless, a spate of recent books has highlighted this rich slice of Kentucky life:

John S. Palmore, An Opinionated Career: Memoirs of a Kentucky Judge (Georgetown, Ky.: Kentucky River Press, 2003). (Not available online, but I’ve seen copies recently at Carmichael’s Bookstore in Louisville) and Joseph-Beth Booksellers in Lexington).

In this thin volume, John Palmore, a giant of the Kentucky bench and bar who served on both the old Kentucky Court of Appeals and the state's new Supreme Court, offers an entertaining and revealing first-hand view of his life on the bench. Palmore takes us behind the scenes of some still vital high court decisions, shares stories on judicial campaigns, and discusses the 1970s reform movement that led to the 1975 Judicial Article amendment, including his efforts to implement the most challenging reform: the establishment of the district courts. Along the way he offers thumbnail sketches of his fellow justices and lawyers. (Palmore's follow-up, From the Panama Canal to Elkhorn Creek : A Chronicle of Life in the 20th Century by an Old Kentucky Lawyer (Louisville, Ky.: Butler Books, 2006) focuses more on his private life, but is still entertaining).

 

Mac Swinford, Kentucky Lawyer (Lexington: University Press of Kentucky, 2008).

In this reprint of his 1963 classic, the late Mac Swinford, the US District Judge for Kentucky (and the Eastern District after the 1963 division) offers an enjoyable take on the Kentucky bench and bar, mostly through the recounting of anecdotes from his early life as a small town practitioner in Cynthiana, Ky., in the 1920s, then and as a moonshiner-busting U.S. Attorney in the 1930s through his years as a federal trial court judge.  In addition to his own stories, Swinford repeats a few old lawyer tales he heard over his long career and recalls colorful members of the bar he knew.

 

William Lynwood Montell, Tales from Kentucky Lawyers. Lexington: University Press of Kentucky, 2003.

Speaking of old lawyers tales, retired WKU folklorist Lynwood Montell has published a treasury of these anecdotes in this book (recently released in paperback). Montell, who built “one of the most successful folk studies programs in the United States” at WKU and is author of a extremely successful triad of books on Kentucky ghostlore, ably collects and selects stories that show the evolving practice of law in Kentucky, the breadth of experiences of ordinary life that lawyers see, and the fading sense of kinship among attorneys.

Harry M. Caudill, The Mountain, the Miner, and the Lord, and Other Tales from a Country Law Office (Lexington, KY: University Press of Kentucky, 1980) and Slender Is the Thread : Tales from a Country Law Office. (Lexington, Ky.: University Press of Kentucky, 1987).

Harry Caudill is most known to Kentuckians as the author of the classic 1963 expose of poverty in Appalachia and the ravages of the coal-mining industry, Night Comes to the Cumberlands, and as an environmental activist. However before he wrote the book that inspired Robert F. Kennedy to tour eastern Kentucky, Caudill was a small-town lawyer in Whitesburg. In these two books, Caudill draws on his experiences to recount the lives of hard-working mountain folk drawn into his office by the vagaries life.

Finally, I'd recommend a trio of biographies of justices from Kentucky: Loren P. Beth, John Marshall Harlan : The Last Whig Justice (Lexington, Ky.: University Press of Kentucky, 1992), Philippa Strum, Louis D. Brandeis : Justice for the People (Cambridge, Mass.: Harvard University Press, 1984) and James E. St. Clair and Linda C. Gugin, Chief Justice Fred M. Vinson of Kentucky : A Political Biography (Lexington, Ky.: University Press of Kentucky, 2002).

I had a pleasant conversation with a young lawyer who has recently joined the Beshear administration. He, like many young attorneys employed by state government entities (a category that can include anything from a sewer district to a school board), was somewhat surprised by the number of unresolved Kentucky constitutional issues that surround the matters he’s asked to research. Moreover, even as a Kentuckian, he was unprepared (by his legal training) for the way that the commonwealth’s political history shaped, framed and explained the law. This is nothing new; I hear similar things from former students all the time. Law schools do a good job teaching the law; the context is another matter.* And law and politics in Kentucky are "the damnedest," to paraphrase James H. Mulligan's famous poem.

So for this new gov'ment lawyer's benefit, and others similarly situated, I offer a summer reading list (click the titles to link to places where you can buy them):

Hambleton Tapp and James C. Klotter, Kentucky : Decades of Discord, 1865-1900. (Frankfort: Kentucky Historical Society, 1977).

Without an understanding of late nineteenth century Kentucky, many provisions of our 117-year-old constitution are inexplicable. The 1891 charter was born in a time of great fervor. The state was caught up in the Populist movement and many of the framers were highly suspicious of special interests and corporations, especially the dominating force of the Louisville & Nashville Railroad Company. They wanted the constitution to protect workers by making sure they were paid and that they could sue for workplace injuries. Tapp and Klotter vividly describe these times and how they impacted both the constitution and the political institutions that followed.

James C. Klotter, Kentucky : Portrait in Paradox, 1900-1950. Frankfort, KY: Kentucky Historical Society, 1996.

Klotter continues the story (and the titular alliteration) from where he and Tapp left off. The key theme of this era was how Kentucky’s political system grappled with the changes wrought by the great depression and the increasing role of government, and ultimately, failed. As a result, the state fell behind in education and industrial diversity, ill-served by a Democratic party seemingly permanently crippled by factionalism and by politicians too eager to avoid tough choices. (Lowell H. Harrison and Klotter’s A New History of Kentucky (Lexington, Ky.: University Press of Kentucky, 1997) is more of a college history text than a summer read but I’d recommend its later chapters as a reference for the period from 1950 to the end of the 20th century).

John Ed Pearce, Divide and Dissent : Kentucky Politics, 1930-1963. Lexington, KY: University Press of Kentucky, 1987.

A former political reporter and columnist (with service on both the Courier-Journal & Times and the Lexington Herald-Leader), John Ed Pearce is an excellent writer who cannot help but be entertaining. This book covers the main period of bitter factionalism in the Democratic Party between the progressive Rhea-Clements-Combs wing and the more conservative faction controlled by Happy Chandler. Pearce was a partisan in some of these fights, writing speeches for Combs while covering them as a reporter, but that adds to the feeling for the era. (For fun, and perhaps a little insight into the often raucous history of local politics in Kentucky, I'd also recommend Pearce's Days of Darkness: The Feuds of Eastern Kentucky, 1994).

Penny M. Miller, Kentucky Politics & Government: Do We Stand United? (Lincoln: University of Nebraska Press, 1994)
Malcolm Edwin Jewell and Penny M. Miller, The Kentucky Legislature: Two Decades of Change (Lexington: University Press of Kentucky, 1988).

Despite their age, these two books by UK political science professor Penny Miller (state treasurer Jonathan Miller’s mom), are the best introduction to the Kentucky political system in print and they help to bring the political history of the state up to date. The Kentucky Legislature is particularly valuable for describing the body’s coming-of-age in the late 1970s and early 1980s when it emerged as an independent branch (out from the subservience to the governor that was typical for most of the 20th century). Do We Stand United? (still used at both UofL and UK in poli sci classes), gives a mixed assessment of how Kentucky governors and legislative leaders have adapted to the legislature's new-found power and responsibility. Both books cry out for new editions that include lessons from the Patton & Fletcher administrations—do you hear me, University Press of Kentucky?

Kurt X. Metzmeier, Michael Whiteman and Jason Nemes, United At Last: The Judicial Article and the Struggle to Reform Kentucky's Courts (Frankfort, Ky.: Court of Justice, 2006).

A little log-rolling here, but this book is the only published account of the activities leading up to the 1975 constitutional amendment vote that established the Kentucky Court of Justice as a fully equal branch of government. The measures taken to implement the reforms and establish the branch's independence are also discussed. (LEGAL WARNING: We tried to keep it readable, although I still haven't convinced my own mother that a book on court history can be light reading. So if you're reading poolside, make sure there is a lifeguard around in case you nod off and fall into the water).

Finally, I’d recommend every bright young person entering government read Tracy Campbell, Short of the Glory: The Fall and Redemption of Edward F. Prichard, Jr. (Lexington: University Press of Kentucky, 1998) as a cautionary tale as to what can happen when partisan enthusiasm outruns ones ethics training. Pritchard was a Harvard educated protégée of Felix Frankfurter and young New Dealer who returned to his native Bourbon County only to ruin his career in an election scandal. The book recounts Prichard’s early fall and his long battle to recover his career and good name as an educational reformer (the Prichard Committee that was so important in marshaling support for the Kentucky Education Reform Act was led by "Prich").

 

In a later post, I’ll give my poolside recommendations for entertaining books on Kentucky legal history…

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* The University of Louisville Brandeis School of Law does require that students take a designated "perspectives" course. I teach American legal history as a perspective and try hard to add this context to both national and Kentucky law. Many law schools do not have this requirement; some do not even offer legal history.

After musing on the worst justices on the US Supreme Court, I thought it might be appropriate to discuss some interesting quantitative research I'm doing on the national reputation of Kentucky high court judges as represented in selective reporters like the Bancroft-Whitney Trinity Series and American Law Reports (ALR). The idea of getting some objective data on state judges from the presence of their opinions in highly selective multistate reporters came from an oft-hand remark by former Chief Justice John S. Palmore in his recent judicial memoir, An Opinionated Career: Memoirs of a Kentucky Judge (Georgetown, Ky.: Kentucky River Press, c2003), where he praised Osso W. Stanley, a trial commissioner on the old court of appeals (then the state's highest court).* Palmore noted that while Stanley’s Republican party affiliation prevented him from ever being elected to the court from his predominately Democratic district (see prior postings, “Old Partisan Kentucky Judiciary” and “Partisan Defined”), he was a wonderful judge and “gifted writer,” who probably had “more of his opinions … published in the American Law Reports (ALR) …than any other judge who has served on the Kentucky court.” (p.76). The passage alerted me to the role that selective reports played in how judges viewed the work of other judges.

The Trinity Series was a pre-West selective reporter by San Francisco law publisher Bancroft-Whitney Co. which included American Decisions (covering opinions from 1760-1869); American Reports (1868-1887) and American State Reports (1886-1911). The series sought to carefully collect leading state court decisions of the fifty states in the period from 1760-1911. The series was highly selective and numbered fewer than 300 volumes for the entire run. Although decisions were picked based on the legal issue addressed in the case, the series editors also chose opinions from judges who had a high reputation in the American legal community. It is clear from my preliminary results** that George Robertson was the leading bluegrass judge in the century, with nearly double the number of decisions published nationally as his closest competitor:

Top ten Kentucky judges represented in the Trinity Series:

1. Robertson, George -- 148 decisions (7 signed only as CJ)
2. Pryor, William S -- 77
3. Boyle, John -- 69 (29 signed only as CJ)
4. Marshall, Thomas A. -- 67
5. Mills, Benjamin -- 67
6. Owsley, William -- 53
7. Simpson, James -- 50
8. Ewing, Iphraim M. -- 43
9. Lewis, Joseph H. -- 40
10. Holt, William H. - 38

George Robertson (whose portrait hangs in the Uofl Brandeis School of law courtroom), served on the Kentucky Court of Appeals from from 1829 to 1834, when he resigned to resume his private practice and teach as law at his beloved Transylvania University, where for 25 years he led the law department. He returned to the court from 1864-1871. His decisions were widely cited in the area of criminal law, legal jurisprudence and tort law, and Kentucky histories and bar tributes mark him as a leading figure in the state legal firmament.

Robertson’s reputation is backed up by some recent scholarship. He is favorably viewed in Peter Karsten’s Heart Versus Head Judge-Made Law in Nineteenth-Century America (Chapel Hill, N.C.: University of North Carolina Press, 1997; see esp. UofL history professor Thomas C Mackey’s review). Karsten’s thesis is that 19th c. jurisprudence reflects a struggle between judges who applied the common law without concern its impact on individuals (especially workers and the victims of railroad injuries), versus a more humanistic view of the law offered by other jurists. Karsten sees southern and midwestern judges trying to mitigate the harsh effect of doctrines like the fellow-servant doctrine that were promulgated by northeastern jurists in the thick of the industrial revolution and he uses George Robertson is an exemplar of this tendency.

Now obviously, there are caveats to this line of research. Judges with long tenures have a more opportunity for their opinions to be cited and those who served as chief justice may have had a better choice of the type of topics that would tend to be selected. Because of this, I’m planning to expand on the selection data with some citation analysis. In addition, I’m trying to come up with a way to track citations to Kentucky cases in the 21,000 19th and 20th century legal treatises in the Making of Modern Law database. I’m also working in a parallel manner using American Law Reports selection patterns to create a similar ranking for 20th century judges, although the changing nature of both the Kentucky court and the continual re-purposing of the ALR by its editors are making that effort more of a challenge. One thing is clear even at this stage: Palmore was right about Stanley!

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*Stanley was Palmore’s predecessor as editor of Kentucky Jury Instructions

**With special thanks to Sarah L. Johnstone who helped track the cases and tabulate the results.

Kentucky Attorney General Jack Conway* yesterday released an opinion finding that the Council on Postsecondary Education (CPE) violated Kentucky law when it hired Brad Cowgill as its chief without conducting a statutorily required national search. (The opinion is not yet of the AGs site so you can find it here). What is more interesting is the comment made by Conway in an interview with CJ reporter Stephenie Steitzer. He told her that if the CPE ignored his opinion, the matter could end up in the courts, or "without elaborating," he suggested that "Beshear has the authority to "reorganize" the council."

What he was eluding to was the governor's broad power to reorganize executive branch units under KRS 12.028, which gives him or her the authority to "between sessions of the General Assembly, temporarily effect a change in the state government organizationalstructure as described in subsection (1) of this section if such temporary reorganization plan is first reviewed by the interim joint legislative committee with appropriate jurisdiction." While such a reorganization would last only until the next meeting of the general assembly, Kentucky courts have given the governor a wide berth in these cases. The power was last exercised by Governor Fletcher in 2004 when he abolished the old Kentucky Racing Commission replacing it with a new Kentucky Horse Racing Authority.

The CPE, currently under the Department of Education, is among the units subject to the law (KRS 12.020). The governor could abolish the CPE, dismiss Cowgill (who does not have a signed contract), and establish a new board with a new interim director to handle the CPE's duties. The few judicial decisions and AG opinions on the reorg law suggest that the governor may or may not be able to dismiss the appointed members out of hand, but he can certainly ask them to resign (Fletcher's course in the racing commission case) or make them a minority on the new board by increasing its size and appointing new members (subject to the law that boards be evenly split between the top two political parties).

Clearly this would be a "nuclear option" but one available if the current jostling between the governor and the CPE ripens into a crisis. The reorganization law is rooted in the "ripper bill" of 1932, when Gov. Ruby Laffoon nakedly stripped the lieutenant governor and the auditor of much of their powers; in that case (as well as later cases), the high court found that law constitutional, implicitly acknowledging the plenary power of the executive to organize his branch when authorized by statute.**

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* Pictured to the right in a poster supporting the ALA/Kentucky Library Association's READ campaign.

** Talbott v. Laffoon, 79 S.W.2d 244 (Ky.1934).