Kentucky General Assembly Flexes Its Muscles

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Just when I thought that the Kentucky General Assembly was going to cruise through to the end of the session without passing any laws that raised interesting legal issues under the state or federal constitutions, the last couple of weeks have produced three passable bills that may end up in the courts on such grounds.

The first proposal of interest is jointly proposed by Senate leader David Williams (R-Burksville) and House Speaker Greg Stumbo (D-Prestonsburg) and seeks to create a powerful legislative investigative organ under the Legislative Research Commission (LRC). The plan, embodied in Senate Bill 188 & House Bill 540, appears to raise several issues.  The press and Common Cause are concerned with language exempting the agency records from open records laws and court subpoenas.    While the good government groups may be  rightly concerned as to this lack of transparency, there doesn't seem to be a readily apparent constitutional issue here.  However, the provision commanding the assistance of the attorney general and state auditor-both constitutional officers-may violate the separation of powers provisions of the state constitution. (Stumbo has suggested that he is considering dropping this section).  A knottier question involves the powers delegated to the LRC. They appear to run afoul of language in the leading case on the separation of powers and the limits of the legislative power, LRC v. Brown, 664 S.W.2d 907 (Ky. 1984).  In Brown, the state Supreme Court opined  that the admittedly vast powers of the legislative branch were nonetheless extinguished when it adjourned sine die and found that the LRC could not be used as a mechanism to extend them. 

Another bill that would likely be challenged is the new executive agency ethics law, just approved by the Senate and under consideration in the House.  Among a mix of worthy and petty provisions, one section of Senate Bill 2 bars anyone giving $50 or more to a gubernatorial candidate from doing business with Kentucky state government for 18 months. (The law does not apply to campaign contributions to legislators--must be a typo). Ending any hint of pay-to-play on behalf of road contractors might be a great idea, but it could be argued that setting such a small amount as the trigger is an impermissible restriction of a citizen's free-speech rights under the U.S. Constitution. See Randall v. Sorrell, 548 U.S. 230 (2006).

Senate Bill 187, sponsored by Sen. Dan Kelly (R-Springfield), perhaps raises the most straight forward constitutional issues.  It would give the legislative branch a veto over the governor's executive orders. Those orders of the governor deemed to involve policy would have to be ratified by the legislature by enactment in its next scheduled session or else they will expire.  This law appears to be a bold violation of the separation of powers provisions of the Kentucky constitution. 

Section 27 defines the separation of powers:  "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." Section 28 prohibits the intrusion of one branch into the powers of another: "No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the other." 

Besides meddling in the acts of another branch, the bill also depends on what could be argued to be a defective exercise of the legislative power. If the legislative branch wants to negate a gubernatorial policy, the constitution provides the method: it can pass a properly framed law through both houses and override the governor's veto.  The bill, however, has the legislature setting state policy by not acting.  Neat trick.

 

Illustration: Roman statue of Aristotle, first political philopher to outline the benefits of the separation of powers doctrine.