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CONSTITUTIONAL ISSUES REGARDING THE SEPARATION OF POWERS AND THE POWER OF LEGISLATIVE CONFIRMATION
By LawReader Senior Editor Stan Billingsley May 12, 2008
This paper is a continuation of LawReader’s focus on discussion of The Law Behind the News. We regularly provide an apolitical review of the legal basis of issues and positions taken by public officials. LawReader is Kentucky’s premier online legal research resource providing the case decisions of all state and federal courts and research resources which are highly focused on Kentucky law. Over l500 Kentucky lawyers regularly do research on LawReader. Twenty-one Kentucky libraries currently subscribe to LawReader for the benefit of their public patrons. Every issue and authority in this article were researched on LawReader which is located at www.lawreader.com.
The current situation in Frankfort finds the Senate firmly controlled by the Republican Party and headed by Senate President David Williams. The Governorship is controlled by a Democrat, and while the House or Representatives has a Democratic majority, the leadership was not able to present a unified front on many major issues considered by the recent session of the General Assembly.
Senator David Williams and Governor Steve Beshear are confronting each other on a number of issues relating to the appointment of inferior officers and members of Boards and Commissions and in general they both are protective of their constitutional powers.
In recent years the Legislature has passed legislation to limit the power of the Governor particularly relating to the Power of the Governor to make appointments. The Chief Justice likewise has objected to the exercise of Legislative power that he feels infringes upon the Judicial Branch of government.
We believe that a review of the Constitution, Statutes, and Case Law concerning the Separation of Powers of the three branches of Kentucky government regarding the appointment and confirmation of inferior officers and members of boards and commissions is timely and appropriate.
The author does not approach this discussion on the basis of political persuasion. The author has served briefly in the Legislature (l974-75), has been employed as an Administrative Assistant to a Governor (l966-67) and served 23 years in the Judiciary, thus we believe is able to present a balanced view of the three branches of government.
We have formed our legal opinions not as an advocate of any particular branch, but have enjoyed the freedom granted us as an impartial bystander. We call them as we found them. Where we have applied our personal point of view, we have identified that view as being our own.
The result of this paper is that there is something to be found favoring the individual powers of all three branches of government, and there are limitations recognized on all three branches.
The issue regarding the terms of office for members of the Board of Trustees of the University of Kentucky and the other State Colleges and Universities, and the boards created to the administer the conduct of higher education may be troubling to some, but we believe the Constitution is clearly outlined.
There is currently a constitutional confrontation among the three branches of government in Kentucky on numerous issues. Kentucky was long credited with having one of the most powerful gubernatorial offices. Over the last quarter of a century the Governor’s powers have been incrementally reduced almost session by session by the General Assembly.
We have now seen the attainment of a high degree of Legislative Independence, a movement which began in the Administration of Governor John Y. Brown. In the battle over ascendancy of power, so far the Governorship has been diminished in power, the Judiciary to a much lesser degree and some would argue perhaps correctly that the Judiciary has blossomed since the adoption of the Judicial Amendments in l976, but the power of the General Assembly has grown substantially and at the expense of the Governorship.
Since the House and Senate are in gridlock, and the House Leadership is divided to a degree not seen in modern times, we foresee the potential for a great deal of litigation in Kentucky’s future as the current separation of powers issues most likely can only be settled by an appeal to the Courts.
QUESTION ONE: Does a state officer (i.e. Director of AOC) whose appointment is required by statute, to be confirmed by the Senate, continue in office if the Senate fails to take a vote on the confirmation?
ANSWER: We conclude that the Constitution via Section 93 declares that an officer who is not confirmed may stay in office until his successor is appointed.
We concede that KRS 11.160 mandates that an appointed officer must vacate the office immediately upon losing the confirmation vote, or at the end of the session if no confirmation vote is taken. However, we conclude that those provisions of KRS 11.160 which mandate that an inferior state officer, who loses a confirmation vote or upon which the confirmation vote is not taken, immediately vacate his office, is in contravention of Section 93 of the Constitution and therefore unconstitutional. See analysis of Section 93 below.
We note that our reading of Section 93 of the Constitution complies with the court’s ruling in Bell v. Sampson which held that the unconfirmed officer was to remain in office until his successor is qualified. We note that Section 93 was a part of the Constitution adopted in 1891 and was clearly in existence in 1930 when the state’s highest court considered this issue. While the statutes have changed since 1930, the applicable provisions of Section 93 are still in effect.
Statute 3750 was in effect in 1930, at the time of the issuance of the decision in Bell v. Governor Sampson. We have examined it and compared it to KRS 11.160, the current statute dealing with confirmation issues, and note that the difference is that the current statute has added numerous details concerning what happens in the event of a confirmation vote or the failure of the Senate to actually take a vote, in many other respects KRS 11.160 is consistent with the mandates of Statute 3750.
Further, in our analysis and reading of Section 93 and KRS 11.160 we apply the basic rule that a statutory enactment does not overrule a constitutional provision. That doctrine is recognized in Jones v. Commonwealth, Administrative Office of the Courts, No. 2005-SC-0272-OA (Ky. 08/25/2005) which held:
“..the jurisdiction to hear and determine any cause that has as its ultimate objective a judgment declaring what this court must do or not do is vested exclusively in this court, for the very simple reason that our Constitution makes it the highest court of the state and gives it the authority to "exercise control of the Court of Justice."
“…the General Assembly's constitutional lawmaking authority does not, by itself, render a legislative statute applicable to the AOC, which is within the exclusive province of the judicial branch.
The correct principle, as we view it, is that the legislative function cannot be so exercised as to interfere unreasonably with the functioning of the courts, and that any unconstitutional intrusion is per se unreasonable, unless it be determined by the court that it can and should be tolerated in a spirit of comity.”
The decision in Jones v. Commonwealth, Administrative Office of the Courts, No. 2005-SC-0272-OA (Ky. 08/25/2005), discusses the issue of the General Assembly attempting to interfere in the operation of the Judiciary. The Supreme Court in the Jones decision issued in 2005 clearly says:
“The Judicial Article also provided for the Chief Justice's governance of the administrative arm of the Court of Justice . Ky. Const. § 110(5)(b). This effectively removed the AOC from legislative authority, in the same manner as it did the KBA. See Auditor of Pub. Accounts , 609 S.W.2d at 687 ("[T]he 1975 Judicial Amendment extended the judicial function to include the administration of the business affairs of the judicial branch of government . . . .") ;Farley , 570 S.W .2d at 620 ("Clearly, [the AOC] and its director and employes are part and parcel of the judicial department of the state. They are, in fact, inseparable from the office of the Chief Justice itself .") .”
While Jones appears to dispose of any question about the power of the General Assembly to influence the operations of the Court, the decision in Jones did not discuss the confirmation powers issue, and another look at this specific issue by the current Supreme Court is justified in light of other rulings of the Court defining the confirmation powers retained by the General Assembly. Our review of the Jones decision does not reveal any discussion of the power of the General Assembly to enact a law to require confirmation of judicial assistants. Therefore, Jones is not dispositive of the confirmation powers issue.
Section 93 states appointed or elected officers shall retain their office, “…until their successors are appointed or elected and qualified.”
The clause immediately preceding this one, says they will serve for a “term. The word “AND” then connects the next clause which says officers will continue to serve in their appointed or elected position until their successor is qualified. We therefore read the two clauses are being directly related one to another.
LawReader interprets this clause to apply to anyone who is appointed or elected.
There is no language contained in Section 93 that allows the legislature to mandate that upon failure to obtain confirmation officers automatically vacate their office before their successor is qualified.
Therefore, we believe the General Assembly in adoption of the KRS 11.160 provision which purports to require non-confirmed officers to vacate their office before their successors are appointed and qualified, is unconstitutional.
Confirmation power is not infringement of power of appointment
We note that Kentucky jurisprudence has a long history of decisions which hold that the constitutional power to appoint an official may be delegated to one branch or another. This doctrine holds that the power of confirmation does not interfere or infringe upon the power of appointment.
See: Kraus v. Kentucky State Senate, 872 S.W.2d 433 (Ky., 1993) “An important distinction must be made immediately, and that is that there is a difference between the power to appoint and the power to confirm or reject an appointment by another branch of government.”
“Clearly, for more than the last one hundred years, the independent branches of government have recognized that the General Assembly has authority to confirm nominations from other branches of government.”
“Statutes enacted contemporaneously with the ratification of the Kentucky Constitution of 1891, and much of the case law interpreting those early statutes, supports the conclusion that the Senate has the inherent power to advise and consent on executive branch appointments of inferior state officers. The legislature, the executive and the courts have acquiesced in such a construction.”
Did adoption of Section 124 in 1976 repeal portions of Section 93 with regard to the judiciary?
the adoption of the new judicial amendment in l975, which became law in l976 may provide a basis for the courts to exempt themselves from the confirmation powers granted by Section 93. Section 124 repeals any constitutional provision that conflicts with Sections 110 (“Chief Justice may appoint necessary assistants.”) thru Section 125.
Kentucky Constitution - Section 124 - Conflicting provisions, states:
“Any remaining sections of the Constitution of Kentucky as it existed prior to the effective date of this amendment which are in conflict with the provisions of amended Sections 110 through 125 are repealed to the extent of the conflict…,”
This provision of the l976 judicial amendment has not been discussed in any judicial interpretation regarding Section 110. Only two cases have mentioned Section 124 and neither discuss its effect on Section 110.
The court in Woodward v. Com., 949 S.W.2d 599 (Ky., 1997) held:
“Section 124, part of the 1976 Judicial Article, repeals all other sections of the Kentucky Constitution to the extent that they conflict with the provisions of the reform sections.”
The only other court citation of Section 124 after l976, Roland v. Jefferson County Fiscal Court, 599 S.W.2d 469 (Ky. App., 1980)), is irrelevant to this discussion.
The courts, if provided a future opportunity to review section 124, may choose to find an exemption from the confirmation powers of Section 93 by the language in Section 124, but in doing so they would have to explain away the existence of the clause in Section 93 which says the legislature may pass legislation to allow a requirement of confirmation by the Senate.
Section 110 Composition -- Jurisdiction -- Quorum -- Special justices -- Districts -- Chief Justice. (5) (b) The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary.. The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.
We have reservations about such a repeal, since Section 110 discusses appointment powers and administrative functions, but does not discuss confirmation powers. Since there is no mention of confirmation powers in Section 110, it is difficult to see how the courts could justify any ruling that Section 124 affects the confirmation powers of Section 93.
Section 93 grants the Legislature appointment powers of all inferior state officers, and these appointment powers directly conflict with Section 110 when Section 124 is applied, and therefore there is little doubt that at least with regard to the Judiciary, the legislature is no longer empowered to involve themselves in the “election or appointment” of judicial assistants.
We see no language in Section 124 that repeals the confirmation powers of the legislature regarding judicial appointments.
See the following discussion of the Jones decision.
JONES DECISION DID NOT DISCUSS CONFIRMATION, IT ONLY DISCUSSED APPOINTMENT
While the Jones decision clearly holds that the Chief Justice retains the power to make appointments of “necessary assistants”, the power of confirmation has long been held not to diminish the power of appointment.
Jones clearly held that under Section 110, the Chief Justice could appoint his assistants. In so far as the power of appointment is concerned, then Section 110 diminishes the penumbra of Section 93 on the appointment or election issue, but Jones does not rule out the provisions of Section 93 regarding confirmation powers made available to the Senate.
We again point out the precedent in Kentucky law for the theory that says the power of confirmation is not an infringement or limitation upon the power of appointment.
See: Kraus v. Kentucky State Senate, 872 S.W.2d 433 (Ky., 1993) “An important distinction must be made immediately, and that is that there is a difference between the power to appoint and the power to confirm or reject an appointment by another branch of government.”
“Clearly, for more than the last one hundred years, the independent branches of government have recognized that the General Assembly has authority to confirm nominations from other branches of government.”
(Note: We personally believe the legal argument long held in Kentucky that the power of confirmation does not affect or diminish the appointment powers of the Judiciary or the Executive Branch is hogwash. Of course the power to confirm an appointment limits the ability of the Governor, Chief Justice or other appointing authority to determine who they want to appoint. The power of confirmation forces the appointing authority to negotiate with the Senate as to whether they will confirm a particular nominee.
However we learned long ago, our personal opinion bears no weight whatsoever, and particularly when the history of this legal doctrine is of such long duration. Nevertheless, the court has the power to review this doctrine and to overrule it if it chooses to ignore stare decisis rules. However judicial rejection of old doctrines and rules is clearly within the jurisdiction of the court. )
DID THE AOC DIRECTOR WAIVE THE RIGHT TO AVOID CONFIRMATION BY ACQUIESCENCE?
There is a case which suggests that a right to object to the confirmation process on a constitutional or statutory basis, may be waived by acquiescence. This issue is applicable to the AOC Director because (according to Sen. David Williams) the AOC Director submitted his request for confirmation of his position by the Senate.
In Kraus v. Kentucky State Senate, 872 S.W.2d 433 (Ky., 1993 a nominated officer submitted to a vote of the senate for confirmation, but on loss of the confirmation vote sought relief from the courts. The court held:
“Here, Kraus did not begin any employment. He was not entitled to the payment of a salary because he never rendered any service to the state. No emolument or privileges shall be made to anyone except in consideration of public service. Ky. Const. § 3; K.R.S. 64.410. The right to object to a defect in a contract may be waived. Weil v. B.E. Buffaloe & Co., 251 Ky. 673, 65 S.W.2d 704 (1933). Cf. American Hardware Mutual
Page 439
Ins. Co. v. Fryer, Ky.App., 692 S.W.2d 278 (1985).
Kraus, when recommended to the Senate, had an expectancy of employment, but not a vested right to it. HealthAmerica Corp. v. Humana Health Plan, Ky., 697 S.W.2d 946 (1985); Winn v. First Bank of Irvington, Ky.App. 581 S.W.2d 21 (1978).
Here the nominee has acquiesced in the nomination and confirmation process and waived any challenge by failing to protest until after the Senate vote had been taken.”
We note that the obvious defense that someone in the position of the AOC Director would make is that while he submitted his request for confirmation, no vote was ever taken, and thus Kraus is distinguished because the appointment of the nominee in that instance was actually voted upon. Also we can expect the President of the Senate to respond with an argument that since the creation of the office of AOC Director, (in l976) all nominees for the position of AOC director has requested and submitted to the confirmation process.
how is Section 93 to be interpreted?
In studying the law on this topic one must consider not only Constitutional Sections 93, but Sections 110, 23 and 26. These sections must be given their due in the overall analysis of the intention of Section 93. We will begin with Section 93.
Our interpretation of Section 93, which creates the confirmation power, may require the noted grammar skills of Justice Abramson and some serious “statutory” construction by the Supreme Court, but consider this reading of Section 93:
“… 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,”(This can be read to say the legislature can pass laws regarding the appointment or election process for inferior state officers…it shows how the officer can take office It does not say how he vacates an office.)
“…which may include a requirement of consent by the Senate, (This permissive language allows the legislature to require Senate confirmation of an inferior state officer. It says nothing about what happens if he fails to be confirmed or loses a confirmation vote.)
for a term not exceeding four years,(This limits the maximum term of appointment or election of all inferior state officers or members of Boards and Commissions, to a term of 4 years.) It does not say they vacate the office if confirmation action is negative or is not taken. This provision should be read in conjunction with Section 23 which says the “General Assembly” shall not “create any office the appointment of which shall be for a longer time than a term of years . This language of Ssection 93 defines the maximum period of appointment for any inferior state officer or any member of a board or commission to a maximum term of 4 years, and therefore fits nicely with Section 23. )
“and until their successors are appointed or elected and qualified. “ (this clause says they will serve for a term “AND” they will continue to serve in their appointed or elected position until their successor is qualified. LawReader interprets this clause to apply to anyone who is appointed or elected. There is no language contained herein that allows the legislature to mandate that upon failure to obtain confirmation they automatically vacate their office before their successor is qualified. We further note that this clause comes immediately after the clause setting out the term of office.)
CASE LAW AND STATUTORY LAW REGARDING WHEN NONCONFIRMED OFFICER VACATES HIS OFFICE
In Bell v. Sampson, Governor, 232 Ky. 376 (KY, 1930) , the old Court of Appeals ruled that when an officer was required to be confirmed, and the Senate failed to take a confirmation vote, the officer would continue in office “until his successor was qualified”. That decision also held that the Governor could terminate that person and reappoint someone else after the confirmation was denied or the Senate adjourned without voting on the confirmation.
Current statutory provisions regarding the confirmation process were adopted via enactment of KRS 11.160. This statute now discusses the consequences of the Senate failing to take confirmation action on an appointment in great detail.
Section (1)(g) of KRS 11.160 states:
“ if the Senate declines to consider a nominee, the position shall become vacant as of sine die adjournment. If the Senate declines to confirm the nominee, the position shall become vacant upon the date the Senate declined to confirm.”
Section (1)(g) of KRS 11.160 clearly ignores the ruling in Bell v. Sampson.
So in 1930 the Court of Appeals, says the unconfirmed officer remains in office until his successor qualifies. The Legislature through KRS 11.160 (1)(g) (which was originally adopted in 1990) ignores Section 93 of the Constitution and mandates that the officer who is not confirmed leaves office immediately if voted down, or vacates office upon the adjournment of the Senate if the Senate failed to vote on the confirmation.
Our review of the case law provides a justification for the non-confirmed officer to remain in office until his successor qualifies. If an office was vacated immediately as favored by the General Assembly as evidenced by their enactment of KRS 11.160, the office to which the party had been appointed would be vacant and no one would be authorized to perform his job until such time as the Governor or other appointing authority could recruit another nominee.
We believe the framers of our constitution felt that the necessity of the orderly continuance and operation of state government is better served by leaving every office occupied, as opposed to leaving many offices vacated, until a successor is appointed, elected or otherwise qualified.
If there was a calamitous event (or judicial ruling) which delayed the appointment of successors to such offices, we would be better off having the temporary assistance of incumbents as opposed to a complete absence of all executive authority in such offices pending the replacement of new appointees.
This statute was originally adopted only in l990. The most recent amendment was in 2007. KRS 11.160 now generally requires:
3. Any person not confirmed by the Senate shall not be reappointed by the
Governor, or other appointing authority, to the same position for which
confirmation is required for a period of two (2) years from the date the
Senate declined to confirm the nomination or the date of sine die
adjournment if the Senate declined to consider the nomination.
4. During periods when the General Assembly is not in session, the Governor's
or other appointing authority's power of appointment shall not be diminished,
and nominees may assume the responsibilities of the position pending
confirmation.
5. If the Governor who makes the appointment, or other appointing authority,
fails to submit the name of the nominee or if the House of Representatives or
the Senate declines to consider a nominee, the position shall become vacant as
of sine die adjournment of the regular session of the General Assembly at
which the appointment was to be confirmed
GENERAL ASSEMBLY HAS IMPLIED POWER TO LIMIT RE-APPOINTMENT FOR TWO YEARS
We note that a provision of KRS 11.160 limits the power to reappoint an official for a period of two years after his failure to obtain Senate confirmation. There is no clear constitutional provision which says the General Assembly can limit the appointing power of the Governor, Chief Justice or other appointing authority by imposition of the two year limitation, but there is nothing specifically contrary to that statutory provision.
However, we believe that Section 93 implies that the General Assembly may have such power in the provision contained in Section 93 which grants the General Assembly the power to designate the procedure for appointment and says:
Officer and members of boards and commissions may be “appointed or elected, in such manner as may be prescribed by law”.
We believe the power of the Legislative Branch to place a cooling off period before a nominee could be reappointed is not inconsistent with Section 76 (Executive) and Section 110 (Judiciary) which grant appointment powers to these two branches.
See:
Section 76 - Power of Governor to fill vacancies.
“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. “
Section 110(5)(b) – “The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary.”
(The effect of Section 124 regarding whether or not the confirmation powers of the General Assembly regarding the Judiciary were repealed by passage of the Judicial amendments in l976, may be tested by appeal to the Supreme Court, and the courts are in the unique position of being able to interpret the law on this manner.
We note that the current Chief Justice Joseph Lambert, who is retiring on June 30th. wrote a compelling dissent in Kraus v. Kentucky State Senate, 872 S.W.2d 433 (Ky., 1993 (see dissent at bottom of this page) in which he vigorously defended a strict interpretation of the separation of powers doctrine, and which may provide some guidance in understanding how this argument might be considered by a the Supreme Court in the future.
Justice Lambert who was joined in his dissent by then Justice Sara Combs stated:
“It is inconceivable that the delegates to the Constitutional Convention could have intended to maintain the practice of Senate advice and consent while eliminating from the Constitution the very provision which expressly conferred such authority.”
“The wall of separation between the branches of government declared by Sections 27 and 28 is being dismantled.”)
question two: does the constitution set a maximum period of years for which inferior officers may be appointed?
ANSWER: YES, AND IT IS INCLUSIVE OF ALL INFERIOR OFFICERS AND MEMBERS OF BOARDS AND COMMISSIONS
Once again we must examine Section 93 of the Kentucky Constitution. We cite this section below and purposively omit the words relating to confirmation to demonstrate what we believe is a correct interpretation of Section 93 on this issue.
“THE EXECUTIVE DEPARTMENT - Kentucky Constitution -Section 93Succession of elected Constitutional State Officers -- Duties -- Inferior officers and members of boards and commissions. -
“… 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, …for a term not exceeding four years,and until their successors are appointed or elected and qualified. “
We submit that rules of grammar and legal construction may be argued, and may indeed require judicial interpretation of this Section. Nevertheless, we believe that this Section means that no “inferior state officer” or “members of boards and commissions” may be elected or appointed for a term exceeding four years.
We believe this is consistent with Section 23 of the Ky. Constitution which states:
“The General Assembly shall not grant any title of nobility or hereditary distinction, nor create any office the appointment of which shall be for a longer time than a term of years.”
The prohibition for appointment for a time longer than a term of years is consistent with Section 93 which goes one step further and limits the number of years to “four”.
LEGISLATURE HAS VIOLATED SECTION 93 BY CREATING TERMS IN EXCESS OF FOUR YEARS FOR SOME OFFICES
The Legislature in an apparent attempt to diminish the influence of a sitting Governor has ignored the four year maximum term of office allowed under Section 93 and implied by Section 23 of the Ky. Constitution.
EXAMPLES OF LEGISLATIVE VIOLATION OF SECTION 93 REGARDING OFFICES IN WHICH LENGTH OF TERM ARE IN EXCESS OF FOUR YEARS
KRS 164.005 Governor's Postsecondary Education Nominating Committee --
Membership -- Terms -- Duties. (3) (a) Members of the committee representing Supreme Court districts shall serve six (6) year terms and until a successor is appointed, …
KRS 164.011 Council on Postsecondary Education -- Membership -- Terms – Persons who shall serve in advisory capacity.
(6) Each citizen member shall serve a term of six (6) years,…
KRS 164.131 Board of Trustees of University of Kentucky -- Membership -- Terms.
(2) (a) The terms of the appointed members shall be for six (6) years and until their
successors are appointed and qualified; …
KRS 164.321 Boards of Regents of Eastern Kentucky, Morehead State, Murray State, Western Kentucky, Kentucky State, Northern Kentucky Universities, and
Kentucky Community and Technical College System -- Membership – Terms
(2) The terms of appointed members shall be for six (6) years and until their successors
are appointed and qualified
There may be other Boards, Commissions and officers in which the General Assembly has ignored Section 93 and created terms of office in excess of four years. But the issue is clearly demonstrated with the foregoing examples.
QUESTION Three: Is there constitutional authority for the Senate to have confirmation powers?
ANSWER: YES
Section 93 grants the legislature the authority to pass laws allowing any “inferior state officer” and “members of boards and commissions” to be confirmed by the Senate.
THE EXECUTIVE DEPARTMENT - Kentucky Constitution -Section 93 -Succession of elected Constitutional State Officers -- Duties -- Inferior officers and members of boards and commissions.
“… Inferior State officers and members of boards and commissions, notspecifically 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. “
We believe it is beyond argument that the legislature has the constitutional power to grant itself confirmation powers over any state office with the exception of constitutional officers (Governor, Lt. Governor, Secretary of State, Attorney General, Auditor). However, any enactment enlarging confirmation powers or broadening them to cover more offices, would require the approval of both the House of Representatives and the Senate, and would be subject to the Governor’s veto powers.
Senator David Williams reads Section 93 to mean that the General Assembly may only grant the Senate, confirmation powers.
A contrary view calls for the services of a grammarian and some serious legal construction (i.e. judicial review) but would hold that the phrase “may include a requirement of consent by the Senate” is a permissive phrase which would not necessarily exclude a law granting confirmation powers to both_the House and Senate.
Senator Williams view is “exclusive” and limits confirmation powers to the Senate, and the contrary view is “inclusive” and would read this provision to permit the House to also be included in the confirmation process by appropriate legislation.
DOES THE CONSTITUTION LIMIT THE APPLICATION OF PROVISIONS DISCUSSED IN THE VARIOUS TOPIC HEADINGS ONLY TO THE BRANCH OF GOVERNMENT DISCUSSED UNDER THAT TOPIC HEADING?
Some legal scholars have proposed the theory that since Section 93 of the Ky. Constitution in indexed under the heading of “Executive” that it’s provisions cannot apply to another branch of government.
Section 93 is under the heading of Executive Department, but discusses powers of the General Assembly, why should it not likewise be able to apply to judiciary?
Some may cite the Separation of Powers doctrine in Section 28 for the theory that within the constitution the sections apply onto to their particular heading.
Section 28 (says) -One department not to exercise power belonging to another- “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.”
We recognize a rule that a specific statute within a Chapter or Title of the Kentucky Revised Statutes applies only to that Chapter or Title. However, we find no legal authority for a rule that says one section of the Constitution applies only to that heading in the Constitution.
Here is how the Ky. Constitution is indexed.
The Executive Department - Sections 69 to 108
Under the theory that the heading limits the application of a constitution provision only to that general heading, then one must conclude that the Bill of Rights does not apply to the Executive, Legislative or Judicial branches.
We note that Section 93 is under the heading of “Executive” but grants the Legislative branch confirmation powers. In fact we find numerous instances where Constitutional provisions regarding more than one branch are mentioned throughout the Constitution.
The constitutional provisions under the “Legislative” index heading deal frequently with departments and procedures which regulate the “Executive” branch of government.
We find no authority for such a limitation by headings in the interpretation of constitutional law.
Authorities:
KRS 11.160 Procedure for General Assembly confirmation of appointments by the
Governor or other appointing authority.
(1) When a statute specifically requires Senate confirmation of an appointment by the
Governor or by other appointing authority, the appointment shall be handled in the
following manner:
(a) All names of persons nominated when the General Assembly is not in session
shall be submitted for confirmation no later than the next regular session of
the General Assembly. The Governor who makes the appointment, or other
appointing authority, shall deliver the name of the nominee to the clerk of the
Senate upon appointment or no later than the fifteenth legislative day of the
next regular session of the General Assembly. The Governor may submit a
nominee for confirmation at any special session that occurs between the date
of initial appointment and the next regular session of the General Assembly. If
the Governor desires to submit the name of a nominee for confirmation at a
special session of the General Assembly, he shall place confirmation of the
nominee on the call for special session.
(b) All names of persons nominated to positions during a regular session of the
General Assembly shall be submitted for confirmation at that regular session.
The Governor who makes the appointment, or other appointing authority,
shall submit the name of the nominee, together with such accompanying
information as may expedite the consideration of the appointment to the clerk
of the Senate not more than three (3) legislative days after making the
appointment, unless the appointment is made during the last fifteen (15)
legislative days, in which case the nominee's name and information shall be
submitted not more than one (1) legislative day later.
(c) For each nominee, the Governor who makes the appointment, or other
appointing authority, shall deliver to the clerk of the Senate a letter of
appointment. The letter of appointment shall be accompanied by a resume
which contains at least the following information:
1. Complete employment history of the nominee;
2. Complete educational background of the nominee; and
3. Current and past employment by or financial relationships with the
Commonwealth of Kentucky or any of its political subdivisions held by
the nominee and any member of the nominee's immediate family.
(d) When a statute requires an interim legislative committee to hold a public
hearing on a particular appointment, the Governor who makes the
appointment, or other appointing authority, shall deliver the letter of
appointment and resume for each nominee to the Legislative Research
Commission within seven (7) days after making the appointment.
(e) The Legislative Research Commission may utilize the services of its staff or
other appropriate persons or organizations to investigate the background of
nominees and to verify the information provided. The Department of Kentucky State Police shall conduct and provide a criminal record history on a
nominee if requested by the Legislative Research Commission.
(f) During periods when the General Assembly is not in session, the Governor's
or other appointing authority's power of appointment shall not be diminished,
and nominees may assume the responsibilities of the position pending
confirmation. During that period, they shall be considered for all purposes to
have been appointed and to be lawful occupants of the post to which they have
been nominated, except that they shall be subject to the confirmation process
when the General Assembly is next in regular session or special session called
for the purpose of confirming the nominees.
(g) If the Governor who makes the appointment, or other appointing authority,
fails to submit the name of the nominee or if the Senate declines to consider a
nominee, the position shall become vacant as of sine die adjournment of the
applicable special or regular session of the General Assembly at which the
appointment was to be confirmed. If the Senate declines to confirm the
nominee, the position shall become vacant upon the date the Senate declined
to confirm.
(h) Any person not confirmed by the Senate shall not be reappointed by the
Governor, or other appointing authority, to the same position for which
confirmation is required for a period of two (2) years from the date the Senate
declined to confirm the nomination or the date of sine die adjournment if the
Senate declined to consider the nomination.
(2) When a statute specifically requires Senate and House of Representatives
confirmation of an appointment by the Governor or by other appointing authority,
the appointment shall be handled in the following manner:
(a) All names of persons nominated when the General Assembly is not in session
shall be submitted for confirmation no later than the next regular session of
the General Assembly. The Governor who makes the appointment, or other
appointing authority, shall deliver the name of the nominee to the clerk of the
House of Representatives no later than the fifteenth legislative day of the next
regular session of the General Assembly. The Governor may submit a
nominee for confirmation at any special session that occurs between the date
of initial appointment and the next regular session of the General Assembly. If
the Governor desires to submit the name of a nominee for confirmation at a
special session of the General Assembly, he shall place confirmation of the
nominee on the call for special session.
(b) All names of persons nominated to positions during a regular session of the
General Assembly shall be submitted for confirmation at that regular session.
The Governor who makes the appointment, or other appointing authority,
shall submit the name of the nominee to the clerk of the House of
Representatives not more than three (3) legislative days after making the
appointment, unless the appointment is made during the last fifteen (15)
legislative days, in which case the nominee's name and information shall be
submitted not more than one (1) legislative day later (c) For each nominee, the Governor who makes the appointment, or other
appointing authority, shall deliver to the clerk of the House of Representatives
a letter of appointment. The letter of appointment shall be accompanied by a
resume which contains at least the following information:
1. Complete employment history of the nominee;
2. Complete educational background of the nominee; and
3. Current and past employment by or financial relationships with the
Commonwealth of Kentucky or any of its political subdivisions held by
the nominee and any member of the nominee's immediate family.
(d) When a statute requires an interim legislative committee to hold a public
hearing on a particular appointment, the Governor who makes the
appointment, or other appointing authority, shall deliver the letter of
appointment and resume for each nominee to the Legislative Research
Commission within seven (7) days after making the appointment.
(e) The Legislative Research Commission may utilize the services of its staff or
other appropriate persons or organizations to investigate the background of
nominees and to verify the information provided. The Department of
Kentucky State Police shall conduct and provide a criminal record history on a
nominee if requested by the Legislative Research Commission.
(f) The confirmation shall originate in the House of Representatives. If the House
of Representatives does not confirm an appointment, the Senate shall not
consider the appointment.
(g) When both the Senate and the House of Representatives have confirmed an
appointment, the Senate shall notify the House of Representatives of the final
approval. The clerk of the House shall then notify the Governor, or other
appointing authority, and the appointee in writing of the General Assembly's
action.
(h) During periods when the General Assembly is not in session, the Governor's
or other appointing authority's power of appointment shall not be diminished,
and nominees may assume the responsibilities of the position pending
confirmation. During that period, they shall be considered for all purposes to
have been appointed and to be lawful occupants of the post to which they have
been nominated, except that they shall be subject to the confirmation process
when the General Assembly is next in regular session or special session called
for the purpose of confirming the nominees.
(i) If the Governor who makes the appointment, or other appointing authority,
fails to submit the name of the nominee or if the House of Representatives or
the Senate declines to consider a nominee, the position shall become vacant as
of sine die adjournment of the regular session of the General Assembly at
which the appointment was to be confirmed. If the House of Representatives
or the Senate declines to confirm the nominee, the position shall become
vacant upon the date that a chamber of the General Assembly first declined to
confirm (j) Any person not confirmed by the House of Representatives or the Senate shall not be reappointed by the Governor, or other appointing authority, to the same position for which confirmation is required for a period of two (2) years from
the date that a chamber of the General Assembly first declined to confirm the
nomination, or the date of sine die adjournment if the House of
Representatives or the Senate declined to consider the nomination.
Effective: June 26, 2007
History: Amended 2007 Ky. Acts ch. 85, sec. 4, effective June 26, 2007. -- Amended
1994 Ky. Acts ch. 26, sec. 1, effective July 15, 1994. – Amended 1992 Ky. Acts
ch. 415, sec. 1, effective July 14, 1992. -- Created 1990 Ky. Acts ch. 505, sec. 1,
effective April 13, 1990
KRS 63.190 Vacancies filled by the Governor.
In every case where there is no other provision of law for the filling of a vacancy in any
office, the vacancy shall be filled by appointment by the Governor.
Effective: October 1, 1942
History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.
Stat. sec. 3758.
KRS 164.005 Governor's Postsecondary Education Nominating Committee --
Membership -- Terms -- Duties. (3) (a) Members of the committee representing Supreme Court districts shall serve
six (6) year terms and until a successor is appointed, except the initial
appointments shall be as follows:
1. Two (2) members shall serve a two (2) year term;
2. Two (2) members shall serve a four (4) year term; and
3. Three (3) members shall serve a six (6) year term. (Does this violate Constitution Section 93?)
KRS 164.001 Definitions for chapter. (4) "Board" or "governing board" means the board of trustees for the University of Kentucky or the University of Louisville, the board of regents for a regional university, or the board of regents for the Kentucky Community and Technical College System;
(5) "Board of regents" means the governing board of each regional university and the
Kentucky Community and Technical College System;
KRS 164.011 Council on Postsecondary Education -- Membership -- Terms – Persons who shall serve in advisory capacity.
(6) Each citizen member shall serve a term of six (6) years,
KRS 164.131 Board of Trustees of University of Kentucky -- Membership -- Terms.
(2) (a) The terms of the appointed members shall be for six (6) years and until their
successors are appointed and qualified;
KRS 11A.060 Executive Branch Ethics Commission -- Membership -- Officers --
Compensation -- Removal -- Meetings. all appointments shall be for four
(4) years
Workers Compensation Board 4 yrs.
KRS 6.651 Establishment of Kentucky Legislative Ethics Commission -- Membership --
Terms.Legislative Ethics Commission ….all appointments shall be for a full four (4) years.
Bell v. Sampson, Governor, 232 Ky. 376 (KY, 1930)
“The statute makes it the duty of the Senate to take action upon all such appointments at its first session held thereafter. As the Legislature was unwilling, unless it otherwise provided, to vest the appointments to office in the Governor except with the advice and consent of the Senate, it follows that the requirement that the Senate shall take action at its first session after the appointments is mandatory; otherwise the legislative purpose would be defeated. Wisely or not, it was unwilling to vest such appointments finally to the unfettered discretion and judgment of the Governor. His appointees were to hold office subject to the advice and consent of the Senate. And this body was to take action at its first session held after the appointments. Unless it did so act at such session, inasmuch as our Senate convenes in
Page 388
regular session only biennially, the terms of office of the appointees of the Governor would, in most instances, be practically over before the Senate could take appropriate action. Thus the Governor would be free from the supervisory control over his appointments which the statute designed there should be. Keeping in mind the object sought to be accomplished and the fact that the authority conferred upon the Senate was one concerning the public interest and that to ignore the provision of the statute would be to defeat its purpose, we are convinced that the provision for action at the first session held after appointments is mandatory. McCreary v. Speer, 156 Ky. 783, 162 S.W. 99; Wait v. Southern Oil & Tar Co., 209 Ky. 682, 273 S.W. 473; 25 R.C.L. 770”
"The distinction between consent as some active propulsion or expression of the mind, and mere acquiescence as a nonactive immobile condition, is drawn in the case of Plummer v. Commonwealth, 1 Bush 76. Consent was said to be an `agreement of the mind to what is proposed or stated by another,' and that the mere standing by without volition, the mere acquiescence, was not a consent in the way of participation. In the case of Aull v. Columbia, etc., R. Co., 42 S.C. 431, 20 S.E. 302, it was held that consent implies some positive action as distinguished from a permission manifested by mere passivity. In Cocke v. Gooch, 5 Heisk. (Tenn.) 294, it was said that consent `cannot be substituted for by a passive acquiescence.' In True v. Commonwealth,
Page 389
90 Ky. 651, 14 S.W. 684, 12 Ky. Law Rep. 594, an instruction against an accomplice in a murder was held bad because the consent demanded by the instruction was that of offering no resistance to the crime without the slightest contribution to it by the accomplice's own will. In State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519, it was held that a submissive mind did not necessarily involve a consenting mind. Philomath College v. Wyatt, 27 Or. 390, 31 P. 206, 37 P. 1022, 26 L.R.A. 68, it was held that in respect to suffrage consent meant the active concurrence of the voters, and not a passive acquiescence. In Crabb's Synonyms, the philologist, in differentiating to consent, to permit, and to allow, says that a consent is `an express sanction to the conduct of others.”'
“ In the instant case, as no vote was ever taken in the Senate upon the appointments of Governor Fields, its nonaction as to such appointments cannot be, in the light of the Morgan case, a confirmation of them.”
“ As the title to office of the appointees referred to in section 3750 of the Statutes is finally vested in such appointees when their appointments are confirmed by the Senate, and as the Senate must confirm, if it is going to confirm at all, at its first session held after the appointments are made by the Governor, and as it is charged with notice of the appointments entered on the Executive Journal and may take them up for action without waiting for an executive communication concerning them, and as a nonaction by the Senate is not confirmation, it must follow, to give any effect to the statute at all and to carry out its manifest purpose, that, if the appointments be not confirmed at the first session of the Senate following their making, they expire with the adjournment of the Senate, and while it may be true that, under the statutes which create their offices, the appointees may hold over until their successors are appointed and qualified, there is a vacancy which the Governor may fill.”
****
Bullock v. Peabody Coal Co., 882 S.W.2d 676 (Ky., 1994)
the appointment of ALJs was addressed by KRS 342.230(5), which provided as follows:
(5) Any vacancy in the term of an administrative law judge shall be filled by appointment of the board, with the consent of the Senate, for the remainder of the term. In the event the Senate is not in session at the time of the appointment to fill the vacancy, the consent of the Senate shall be obtained during the time the Senate next convenes.
This provision clearly provided for the appointment of an ALJ at a time when the Senate is not in session. Claimant's argument is that, although an ALJ could be appointed when the Senate was not in session, the ALJ could not serve until the appointment was confirmed. However, such a view would result in vacancies in positions for ALJs for periods of as much as two years between sessions of the General Assembly, seriously hindering the prompt disposition of workers' compensation claims. Because the prompt disposition of claims by injured workers is one of the public policy considerations underlying workers' compensation legislation, as is evidenced by KRS 342.275 and KRS 342.285(3), we do not believe that the legislature intended such an interpretation. Furthermore, had such an interpretation been intended, the last sentence of KRS 342.230(5) would have been redundant.
We also note that our interpretation of the legislature's intent is consistent with KRS 11.160(1), as amended effective July 14, 1992, after this ALJ's confirmation. This provision sets forth in detail the procedure to be followed whenever Senate confirmation is required by statute and provides, in pertinent part, as follows:
(1) When a statute specifically requires Senate confirmation of an appointment by the Governor or by other appointing authority, the appointment shall be handled in the following manner:
....
(e) During periods when the General Assembly is not in session, the Governor's or other appointing authority's power of appointment shall not be diminished, and nominees may assume the responsibilities of the position pending confirmation. During that period, they shall be considered for all purposes to have been appointed and to be lawful occupants of the post to which they have been nominated, except that they shall be subject to the confirmation process when the General Assembly is next in regular session or special session called for the purpose of confirming the nominees.
It is clear that as of July 14, 1992, KRS 342.230(5) and KRS 11.160(1) authorized an ALJ to assume the responsibilities of the position of ALJ pending confirmation by the Senate. We believe that the legislature intended for KRS 342.230(5) to produce the same result with regard to the appointment of ALJs before the effective date of the 1992 amendment to KRS 11.160(1).
***
Kraus v. Kentucky State Senate, 872 S.W.2d 433 (Ky., 1993) An important distinction must be made immediately, and that is that there is a difference between the power to appoint and the power to confirm or reject an appointment by another branch of government.
Page 436
Clearly this is a rather mixed situation involving the three principal functions of government. An ALJ performs certain judicial functions insofar as he or she may take evidence, hold hearings and render final opinions in a worker's compensation matter subject to further appeal both to the Workers' Compensation Board and the established judicial system. The appointments are made by the executive branch, and pursuant to statute are subject to legislative confirmation
***
We recognize that unlike the Federal Constitution, the Kentucky State Constitution contains express separation of powers provisions. Brown; Sheryl G. Snyder and Robert M. Ireland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of LRC v. Brown, 73 Ky.Law Journal 165 (1984-85).
The provisions of constitutional sections 27 and 28 divide the governmental power into three branches, executive, legislature and judicial, and provide that no person in one branch shall exercise power belonging to another branch.
Kraus contends that K.R.S. 342.230(3) is unconstitutional because the Senate has granted unto itself the power of filling or withholding appointments in contravention of authority of the executive branch. See Const. § 76; Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136 (1901). We must also understand that LRC v. Brown determined that any statute which purportedly contravenes Sections 27 and 28 of the Kentucky Constitution must be strictly construed. Brown, supra.
The question of appointment is not before this Court because the Senate does not appoint an ALJ under the statute but only consents to the appointment by the Workers' Compensation Board.
The important distinction between the power to appoint and the power to consent to an appointment has been recognized previously Sewell v. Bennett, 187 Ky. 626, 220 S.W. 517 (1920). In that case, the highest court of this state considered whether the provisions of the Workers' Compensation Act allowing the Governor to appoint members of the Workers' Compensation Board were in conflict with K.S. 3750 which gave the Senate the power to confirm executive appointments. This Court held that the section in question did not in any manner interfere with the power of the Governor to appoint. "It merely provides that, when he does appoint, his appointment shall be subject to the approval of the senate."
The court in Sewell, supra, acknowledged the constitutionality of the legislation of K.S. 3750 because the court stated that this section would be applied by the court only "when there is nothing in the constitution ... in conflict with the provisions of this statute." Sewell, 220 S.W. at 520. The decision in Sewell did not involve the question of whether the legislature had the power to make such appointments because the specific legislation conferred that power on the governor. The only issue in Sewell was whether the power of appointment was subject to a provision requiring advice and consent by the Senate. Similarly, in Kentucky Ass'n of Realtors v. Musselman, Ky., 817 S.W.2d 213 (1991), a statute required a private body to submit a list of nominees to the governor who then was to make an appointment from that list. This was found by the court to not violate Sections 27 and 28 because the statute:
Gives the General Assembly no voice in the selection of committee members; its reach extends solely to providing a method of selection with reasonable criteria to generate commission members qualified for the position....
The delegates to the 1890 Constitutional Convention and the Kentucky Constitution itself acknowledge the authority of the Senate to consent to certain appointments by the executive branch. Section 209 of the Constitution provides that the Governor was given power to appoint the first three members of the railroad commission with the advice and consent of the Senate. Kraus claims that the Senate does not have authority to advise and consent because the constitutional convention amended and deleted specific mandatory "advice and consent" language from Section 76 of the Constitution. The delegates to the convention understood that the mandatory provisions in Section 76 which would have required the Senate to consent had to be changed into the general terms which permitted Senate consent to any inferior state official that the General Assembly determined by legislative enactment should be subject to such senate consent.
Since the enactment of the 1891 Constitution, the General Assembly has understood that the Senate had the constitutional authority to consent to the appointment of inferior state officers. Kentucky Statute 3750 was enacted in 1893 and provided in part:
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.
This section was repealed and amended, but reenacted without change in 1934. Johnson v. Laffoon, 257 Ky. 156, 77 S.W.2d 345 (1935). Although K.R.S. 3750 has been amended over the years, its essential component, which is the recognition of the constitutional authority of the Senate to advise and consent on certain appointments, has never been changed and remains in effect today as K.R.S. 63.080, which states in part, "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...."
Pursuant to Constitution § 93, K.R.S. 342.230(3) was enacted as were ten other statutes which provide for executive appointments subject to Senate and/or House approval. The other statutes are K.R.S. 18A.050(4), State Personnel Board; K.R.S. 27A.050, Director of the Administrative Office of the Courts; K.R.S. 121.110(1), Registry of Election Finance; K.R.S. 131.315(1), Board of Tax Appeals; K.R.S. 154A.030(1), Lottery Board of Directors; K.R.S. 156.029(1), Elementary and Secondary Education Board; K.R.S. 156.665(2), Council for Educational Technology; and K.R.S. 278.050(1), Public Service Commission.
There are also statutory procedures for Senate confirmation of gubernatorial appointments. K.R.S. 11.160. Clearly, for more than the last one hundred years, the independent branches of government have recognized that the General Assembly has authority to confirm nominations from other branches of government.
In addition, this Court has historically acknowledged that the Senate has the power to consent to the appointment of inferior state officers. Sewell, 220 S.W. at 522 notes that the Governor routinely sent appointments to various offices to the Senate for its consent when the legislation creating an office contains such a requirement. Prior to Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455 (1922), no party challenging the application of Section 3750 ever asserted that the statute was unconstitutional. In the Sibert, supra case, the issue was limited to whether the General Assembly had the power to appoint state officers pursuant to Section 93 of the Constitution. Following Sibert, there are several reported cases challenging the validity of appointments made with the advice and consent of the Senate, but no case involving a challenge to the constitutional authority to confirm such nominations or appointments. The parties and the courts recognized that such power was indeed constitutional. See Johnson v. Laffoon, supra; Johnson v. Sampson, 232 Ky. 648, 24 S.W.2d 306 (1930); Bell v.
Page 438
Sampson, 232 Ky. 376, 23 S.W.2d 575 (1930); McChesney v. Sampson, 232 Ky. 395, 23 S.W.2d 584 (1930).
Statutes enacted contemporaneously with the ratification of the Kentucky Constitution of 1891, and much of the case law interpreting those early statutes, supports the conclusion that the Senate has the inherent power to advise and consent on executive branch appointments of inferior state officers. The legislature, the executive and the courts have acquiesced in such a construction.
Legislative or executive construction of constitutional provisions adopted and acted on with the acquiescence of the people for many years is entitled to great weight with the courts and where not manifestly erroneous, it will not be disturbed. The injustice that would inevitably result by the disturbing of such constructions after a long period of acquiescence therein during which many rights will necessarily have been acquired, is a very strong argument against it.
Coleman v. Mulligan, 234 Ky. 691, 28 S.W.2d 980 (1930), citing 12 C.J. 714-715.
It is true that Section 76 of the Kentucky Constitution was changed in 1890 to delete that portion granting the Senate authority to advise and consent to executive appointments. However, the change was made in order to eliminate any possible conflict with what was to become Section 93 of the same constitution. Section 76 had provided that any nonelective officers shall be appointed by the Governor with the advice and consent of the Senate. Section 93 provided that "Inferior state officers, not specifically provided for in the constitution, may be appointed or elected in such manner as may be presented by law...." Section 76 had been included in the Kentucky Constitution of 1890 only to permit the Governor to appoint the state librarian. See Snyder, supra, 73 Ky.Law Journal at 173-74, note n. 59.
The statute in question does not permit the Senate to make appointments of administrative law judges but only to accept or reject the decision of the Workers' Compensation Board. We can determine that the statute does not violate any constitutional provisions and that the circuit court did not err in concluding that the statute is constitutional.
There is a strong presumption of constitutionality which is afforded any enactment of the General Assembly. Jefferson Co. Police Merit Bd. v. Bilyeu, Ky., 634 S.W.2d 414 (1982).
Although K.R.S. 342.230(2) authorizes the Workers' Compensation Board to "employ a commissioner," K.R.S. 342.230(3) on the other hand notes that the Board must employ Administrative Law Judges with the consent of the Senate. Kraus did not obtain the consent of the Senate and he failed to overcome the second statutory section required for him to be "employed" by the Board as an Administrative Law Judge. Consequently, Kraus has not stated a good cause of action against the Board.
Kraus waived his opportunity to challenge the authority of the Senate to vote on his employment by appearing at the confirmation hearing without protest and engaging in the confirmation process. If he had wished to challenge the authority of the Senate to vote at all, such a challenge should have been made before he was damaged. He might have sought an injunction against the Senate to prevent it from holding the confirmation hearings, or he could have appeared under protest, making his question concerning the statute known at that time. He did not appear at the hearing under protest, he willingly appeared and participated. In a supplemental memorandum filed with the circuit court on April 10, 1991, Kraus said he was faced with a "Hobson's choice" and that he decided to appear, be damaged, and challenge the statute. We are unconvinced.
The right to object to a defect in a contract may be waived. Weil v. B.E. Buffaloe & Co., 251 Ky. 673, 65 S.W.2d 704 (1933). Cf. American Hardware Mutual
Page 439
Ins. Co. v. Fryer, Ky.App., 692 S.W.2d 278 (1985).
Kraus, when recommended to the Senate, had an expectancy of employment, but not a vested right to it. HealthAmerica Corp. v. Humana Health Plan, Ky., 697 S.W.2d 946 (1985); Winn v. First Bank of Irvington, Ky.App. 581 S.W.2d 21 (1978).
Here the nominee has acquiesced in the nomination and confirmation process and waived any challenge by failing to protest until after the Senate vote had been taken.
LAMBERT, Justice, dissenting.
The majority has acknowledged that Section 76 of the Constitution of Kentucky was modified in 1890 and the advice and consent provision of the earlier constitution removed therefrom. The majority suggests that this was to eliminate any conflict with Section 93 which provides that inferior state officers "may be appointed or elected, in such manner as may be prescribed by law...." 1 This is a leap of logic which is unsustainable. It is inconceivable that the delegates to the Constitutional Convention could have intended to maintain the practice of Senate advice and consent while eliminating from the Constitution the very provision which expressly conferred such authority. To suggest that the
Page 441
delegates intended advice and consent to be authorized by the vague language which appears in Section 93 is sophistry.
Among the most significant decisions in Kentucky constitutional law is Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984), in which this Court undertook to rigidly enforce Sections 27 and 28 of the Kentucky Constitution, the separation of powers provision.
We should not abandon the philosophical principles that were incorporated by the framers of our present constitution. The purpose of the separation of powers doctrine is uncontroverted. The precedents established by this court have been uniform in retaining the goals set out by the framers. The separation of powers doctrine is set in the concrete of history and legal precedent. We will not overrule those cases and we will not, by the fiat of judicial legislation, change the clear and imperative meaning of our constitution. Such action is within the sole province of the voters of this Commonwealth.
We conclude that any statute subject to the scrutiny of Sections 27-28 of the Kentucky Constitution should be judged by a strict construction of those time-tested provisions.
Id., at 914.
This case and our recent decision Kentucky Association of Realtors v. Musselman, Ky., 817 S.W.2d 213 (1991), amounts to a major retreat from the foregoing principles and authorizes another significant legislative incursion into executive domain. I dissented in Musselman and for the reasons explained therein, I dissent in this case. The wall of separation between the branches of government declared by Sections 27 and 28 is being dismantled and the determination expressed in LRC v. Brown is being ignored.
COMBS, J., joins in this dissenting opinion.
McChesney v. Sampson, Governor, 232 Ky. 395 (KY, 1930) Appointee of Governor takes office, enters on performance of his duties, and is charged with responsibility and holds office subject alone to action of Senate under Ky. Stats., sec. 3750, his status not being that of nominee awaiting confirmation, but that of officer invested with powers, privileges, and responsibilities of position until Senate acts.
Power flowing from act of Governor in making appointment to office is vested in appointee, and may not thereafter be recalled or bestowed on another unless consent of Senate is withheld.
No valid appointment can be made to office in possession of incumbent whose tenure has not terminated
Where Governor appointed members of state text-book commission created under Acts 1926, c. 77, sec. 1 (Ky. Stats., Supp. 1928, sec. 4421a-1), and such appointees were not confirmed by Senate at next session as required by Ky. Stats., sec. 3750, and new appointments were made to fill vacancies created by nonaction of Senate, Governor did not have power to remove unconfirmed appointments when there was no session of Senate subsequent to appointment that could act or fail to act thereon.
***
It is insisted that an appointment to the office in question is not complete without the consent of the Senate, and until the title to the office is thus vested, the Governor is free to designate, revoke, and reappoint at will. On the other
Page 399
hand, it is argued that the power to appoint vested by statute in the Governor is exhausted with its exercise, and that an appointee is not removable, holding the office subject alone to the action of the Senate. The act creating the commission conferred upon the Governor no power to remove members. Such power is not incidental to the power of appointment, except where the authority to appoint is conferred in general terms for an indefinite period, without other provision of law restricting the power of removal. Votteler et al v. Fields, Governor, manuscript opinion by Judge Dietzman, whole Court concurring, filed Jan. 17, 1930. 23 S.W. (2d) 391; Commissioners of Sinking Fund v. Byars, 167 Ky. 306, 180 S.W. 380; Simons v. Scott, 188 Ky. 535, 222 S.W. 1075. It follows that no power of removal exists in the present instance unless it is conferred by some other statute. In so far as we are advised, section 3750, Ky. Stats., is the only provision affecting the matter. It reads:
&nb |