Request By:
Honorable David K. Karem
State Senator
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of January 20 in which you refer to Committee Substitute for Senate Bill No. 13 and particularly to Amendment No. 2 to said bill and raise the question as to whether or not Amendment No. 2 is invalid and in violation of Sections 27 and 28 of the Kentucky Constitution.
The Committee Substitute permits the establishing of a drafting commission in any county containing a city of the first class for the purpose of undertaking a study to promote a more efficient and economical form of local government. Members of the commission are to be appointed by the county judge/executive of the county and the mayor of the largest city within the county as provided in Section 2, subsection (3) and are required to devise a comprehensive plan for a new form of county and local government to be submitted to the electorate for approval or disapproval.
Subsection (3) of Section 2 as amended by Amendment No. 2, as underlined, reads in part as follows:
"(3) Upon the initiation of the process required by subsection (1) of this section, the county judge/executive of the county and the mayor of the largest city within the county shall, after consulting with the senators and representatives whose districts lie within the county, appoint a representative drafting commission composed of one (1) registered voter residing within each of the house of representative districts lying wholly or substantially within the county plus one (1) registered voter residing within each of the senate districts lying wholly or substantially within the county and one (1) person from each house of representatives and senate district lying wholly or substantially within the county, to be selected jointly by the major and county judge/executive from a list of three persons submitted by the senator or representative representing such district. " . . .
The proposed Amendment No. 2 requires the mayor and the county judge to appoint one person from each house and senatorial district lying wholly or substantially within the county, from a list of three persons submitted by the representative and senator representing such district. This amendment does in fact raise a serious constitutional question with respect to the separation of powers doctrine found in Sections 27 and 28 of the Kentucky Constitution and particularly the latter section, which reads as follows:
"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."
The above referred to sections, particularly Section 28, have been construed to prohibit one branch of government from "grabbing power that properly belongs to the other." Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d 584 (1963). In Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136 (1901), the Court declared that the legislature could not give itself power that essentially is administrative in nature. In this case the legislature had given itself the power to appoint members of the state election commission, which the Court declared to be in violation of Sections 27 and 28 of the Constitution. A similar question was raised and answered in the negative in the case of Sebert v. Garrett, 197 Ky. 17, 246 S.W. 455 (1922). See also Huggins v. Caldwell, 223 Ky. 468, 3 S.W.2d 1101 (1928).
The question of the right of the legislature to give itself the power to appoint various state boards and commissions was also raised and answered in the negative in OAG 70-64 which quoted from the Pratt case, as follows:
". . . By Section 29 of the Constitution, the 'legislative power' is vested in a house of representatives and a senate, together styled the 'General Assembly.' The Legislature, being by this grant vested with all legislative power, may do everything that can properly be done by the enactment of a law, and in addition thereto may do everything that by the Constitution it is expressly directed or permitted to do. Each house may perform the executive act of electing its own officers (sections 34 and 249), and the judicial acts of judging of the qualifications, elections, and returns of its members (section 38) punishing disorderly behavior and expelling members (section 39). The framers of the Constitution having deemed it necessary to expressly permit the Legislature to exercise the executive power of appointment in specified cases, this permission, by implication, forbids the Legislature to exercise such power in any other case. The creation of an office is accomplished by the exercise of legislative power. It is done by the enactment of a law. The filling of it, when not exercised by the people, or in some manner directed or permitted by the Constitution, is executive, and must be performed by an executive officer. 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. Only once has it attempted to do so. It is not denied that the legislative department can appoint or elect an officer when the duties of the office appertain to that department. And in this is found whatever justification exists for the Legislature's election of the State Librarian, an office which, without any violent stretch of construction, may be considered as appertaining to the legislative department. But, while the three commissioners provided for in this act are both executive and judicial officers, they are not in any sense legislative. They perform executive functions in appointing to and removing from office and in canvassing the returns, and judicial functions in deciding contests. But they perform no functions connected with the Legislature. 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. . . .
"In City of Evansville v. State, 118 Ind., 426, 21 N.E., 267, 4 L.R.A., 93, the court said: 'The power to appoint to office is an executive function, and, while the Legislature may provide by law for the appointment of all officers not provided for in the Constitution, the appointing power must be lodged somewhere within the executive department of the Government' . . . .
"It is not to be supposed for a moment that, in vesting the General Assembly with legislative power, it was imagined by the convention or the people that that body, by the mere passage of a so-called act conferring upon itself powers which properly belonged to the other departments, could usurp their functions. If it can do so, then we do not live under a constitutional Government, but the General Assembly, like the British parliament, is supreme. . . ."
True, Amendment No. 2 does not authorize the legislature to actually appoint members to the drafting commission; nevertheless, it does control the appointments of certain members by requiring the appointing authority to appoint such members solely from lists submitted by each representative and senator of the districts involved, which would in effect appear to give the legislature or a representative portion thereof, the indirect power of appointment amounting to the exercise of an administrative power outside of its own jurisdiction which the courts have declared to be in violation of the separation of powers doctrine expressed in the referred to sections of the Constitution.
Aside from what appears to be a violation of separation of powers doctrine because of the controlling interest in the appointment of members of the commission, there is the added factor that the commission itself could be composed of certain members of the state legislature by virtue of the selection lists vesting them with the right to perform duties that are essentially administrative in nature outside of those that are essentially tied to their legislative functions as members of the General Assembly as pointed out by the Court in the quoted excerpt from the Pratt case cited above.
Under the circumstances, we express serious reservations concerning the constitutionality of Amendment No. 2. However, this question would ultimately be for the courts to decide.