By McKenna Horsley
Kentucky Lantern
Republican constitutional officers celebrated a ruling from the Kentucky Court of Appeals that upheld a law allowing them to each appoint a member of the Executive Branch Ethics Commission.
Democratic Gov. Andy Beshear, who’s office has said it will ask the Kentucky Supreme Court to hear the case, filed a lawsuit in 2022 to block the GOP law that reduced his authority over appointments to the commission, which enforces the ethics code governing executive branch employees. The governor had been responsible for appointing the five commission members.
The law expanded the commission from five members to seven and gave the governor two appointments with the remaining five seats to be filled by other statewide office holders — attorney general, secretary of state, treasurer, auditor, and agriculture commissioner — who are part of the executive branch.
Jefferson Circuit Judge McKay Chauvin sided with Beshear.
But the three-judge appeals court panel disagreed, ruling that the General Assembly has the power to distribute powers of the governor among constitutional officers.
The decision was written by Judge Audra Jean Eckerle with judges Allison Jones and Sara Walter Combs concurring.
Combs in her concurrence, however, raised concerns about a chipping away of gubernatorial powers and called for the Supreme Court to reexamine the precedent on which Friday’s ruling was based.
The questions raised by the case, she wrote, involve “the very heart of the sacrosanct doctrine of separation of powers.” Combs warned that continued deference to a 1982 ruling by the state Supreme Court in Brown v. Barkley could produce a “practical, de facto” nullification of the governor’s powers as set out in Kentucky’s Constitution.
“We have recently seen a proliferation of cases, at least four major appeals, within the last eighteen months, involving restraints imposed by the legislature on the exercise of executive powers by the Governor. In some form or other, these cases all constitute an incremental but insistent incursion by the legislative branch into the authority of the executive.”
“A balance among these various sections of the Constitution needs to be sought and judicially defined in order to preserve the guarantee that the spirit as well as the letter of the Constitution will be preserved, protected, and defended,” Combs wrote.
In 2021, the Kentucky Supreme Court handed Beshear a defeat, upholding Republican laws to limit the governor’s emergency powers.
Crystal Staley, a spokesperson for Beshear, said the administration plans to ask the Supreme Court to hear the case.
“We strongly disagree with this decision because our constitution is clear – the Governor must make sure our laws are followed,” she said in a statement. “This ruling is dangerous, as it allows the General Assembly to strip the Governor of his authority and give it to others who don’t have that same constitutional duty to uphold our laws.”
In a joint press release, Attorney General Russell Coleman, Secretary of State Michael Adams, Auditor Allison Ball, Treasurer Mark Metcalf and Agriculture Commissioner Jonathan Shell heralded the Court of Appeal’s decision.
“Today’s ruling makes sure the Executive Branch Ethics Commission lives up to its name. The Governor’s attempt to pack the Commission was the type of ‘playing politics,’ that he claims to rise above,” Coleman said. “The people of Kentucky elected divided government to find common ground, and the Constitutional Officers are ready.”
Adams, too, noted the recent lawsuits regarding the governor’s powers in his statement.
“When the Governor attempted to seize power from the Legislature, the courts shut him down. Then he tried seizing power from the other Constitutional Officers. The courts have shut him down again,” Adams said. “I respect the Governor personally and professionally, but this is not an autocracy.”
The struggle for power between Kentucky’s executive and legislative branches is not a new issue. Over the last century, the General Assembly has gained more independence from governors.
Republican House Speaker David Osborne, of Prospect, applauded the decision and thanked the court for “reaffirming the General Assembly’s role as the state’s lawmaking branch of government.”
“Without a doubt, the executive branch has its own constitutionally-granted authority, as well as obligations created by statute,” Osborne said. “The governor should drop his frivolous lawsuits and focus on the challenges within his administration, including the crisis in juvenile justice, issues within our adult prisons, and the continued failure to modernize the state’s unemployment system.”
McKenna Horsely covers state politics for the nonprofit Kentucky Lantern.
