575 S.W.3d 673
Mo. Ct. App.2019Background
- KRS 12.028 authorizes the Governor, between legislative sessions, to "temporarily effect a change in the state government organizational structure," including creating, altering, abolishing organizational units or administrative bodies and transferring functions, personnel, funds, etc., and provides legislative review and an automatic termination rule.
- Governor issued Executive Order 2017-364 reorganizing multiple state education bodies (e.g., creating a Charter Schools Advisory Council; altering memberships and sizes of several boards; abolishing and reconstituting some panels; changing appeal routes for the Education Professional Standards Board).
- Franklin Circuit Court upheld EO 2017-364 in large part but struck one portion changing the Education Professional Standards Board appeal process; the Governor did not appeal that ruling.
- Attorney General appealed the remainder, arguing statutory and constitutional infirmities: that education boards were exempt from KRS 12.028; that KRS 12.028 conflicts with statutes fixing board terms/removal protections; and that the statute/EO violate Kentucky Constitution Sections 15 and 183 and separation/nondelegation principles.
- Kentucky Supreme Court granted discretionary review and considered (1) statutory scope of KRS 12.028, (2) limits from board-specific statutes and removal protections, (3) Section 15 (suspension-of-laws), (4) Section 183 (education clause), and (5) separation-of-powers/nondelegation challenges.
Issues
| Issue | Plaintiff's Argument (Attorney General) | Defendant's Argument (Governor) | Held |
|---|---|---|---|
| Does KRS 12.028 apply to the education boards at issue? | KRS 12.295 lists governing chapters and shows the boards are governed exclusively by those statutes, excluding KRS 12.028. | KRS 12.295 itself labels those entities "organizational units and administrative bodies," which falls squarely within KRS 12.028's scope; 12.295 is an index, not an exclusion. | KRS 12.028 applies to the education boards; 12.295 does not exempt them. |
| Do fixed terms and removal-for-cause statutes prevent reorganization/removal under KRS 12.028? | Statutes prescribing terms and limiting removal undermine the Governor's ability to alter boards via EO. | KRS 12.028 expressly permits alteration/abolition and transfer of personnel; terms are ceilings, not absolutes, and some removal authority exists in KRS 63.080. | Governor's temporary reorganization power may remove/alter members; term statutes do not defeat 12.028. |
| Does KRS 12.028/EO 2017-364 impermissibly "suspend laws" in violation of Section 15? | EO changes statutory prescriptions (e.g., board size) and thus suspends or rewrites law, violating Section 15. | The General Assembly expressly authorized the Governor to make temporary reorganizations by statute; that grant constitutes the Assembly's "authority" under Section 15. | No violation: the statute is the General Assembly's authority to permit temporary suspensions under Section 15. |
| Do KRS 12.028/EO 2017-364 violate separation of powers/nondelegation? | Granting lawmaking-like power to Governor usurps legislative power; repeated temporary EOs can effectuate permanent lawmaking. | Legislature validly delegated a limited, reviewable interim reorganization power with statutory safeguards and legislative oversight; action is executive in nature. | No unconstitutional delegation or separation violation on these facts: legislative scheme includes safeguards, review, and temporary limits; not a facial challenge. |
Key Cases Cited
- Lovelace v. Commonwealth, 147 S.W.2d 1029 (Ky. 1941) (legislature may authorize another branch to suspend laws; statutory delegation can supply Section 15 "authority")
- Brown v. Barkley, 790 S.W.2d 186 (Ky. 1989) (transfer of legislatively-created functions among executive agencies is an executive action)
- Legislative Research Comm'n ex rel. Prather v. Brown, 664 S.W.2d 907 (Ky. 1984) (legislature may vest interim reorganization authority in Governor; such action is executive)
- Fletcher v. Commonwealth, 163 S.W.3d 852 (Ky. 2005) (separation/nondelegation principles discussed in context of executive action)
- Rose v. Council for Better Educ., Inc., 204 S.W.3d 589 (Ky. 2006) (addresses constitutional obligations regarding the Commonwealth's system of common schools)