KENTUCKY ASSOCIATION OF REALTORS, INC., Aрpellant, v. Chester W. MUSSELMAN; Wallace G. Wilkinson, Governor of the Commonwealth of Kentucky; and Kentucky Real Estate Commission, Appellees. Frederic J. COWAN, Attorney General of the Commonwealth of Kentucky, Appellant, v. Chester W. MUSSELMAN and Kentucky Real Estate Commission, Appellees.
Nos. 90-SC-664-TG, 90-SC-665-TG.
Supreme Court of Kentucky.
Aug. 29, 1991.
Rehearing Denied Nov. 21, 1991.
213
LEIBSON, Justice.
Peter L. Ostermiller, Robert G. Stallings, Louisville, for Musselman.
Kevin J. Hable, William H. Hollander, Sheryl G. Snyder, Louisville, for Wilkinson.
T. Kennedy Helm, III, Judith A. Villines, Frankfort, for amicus curiae.
John L. Ackman, Jr., Louisville, for Kentucky Real Estate.
Frederic J. Cowan, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, Kelly Mark Easton, Louisville, for Cowan.
LEIBSON, Justice.
This is a declaratory judgment action filed by the appellee, Chester W. Musselman, a licensed real estate agent, against:
(1) The Kentucky Association of Realtors, Inc. (the “Association“), a private, vol-
(2) The Kentucky Real Estate Commission (the “Commission“), a state agency charged with the responsibility of licensing and regulating Kentucky real estate brokers and salesmen;
(3) The Governor of Kentucky; and
(4) The Attorney General of Kentucky.
The appellee seeks to have a portion of
Based on these enumerated sections of the Kentucky Constitution, the trial court entered Judgment on the Pleadings declaring unconstitutional so much of
The portion of the statute in question,
“For each appointment or vacancy, the Kentucky Association of Realtors shall supply a list of not less than three (3) names of licensees to the governor each year from which the broker or sales associate appointments are to be made. The governor may fill vacancies arising in the middle of the year from those remaining on the list or from a new list supplied by the association.”
The statute limits the power of the Govеrnor to appoint two names on a list provided by the Association, but it neither limits appointees to members of the Association nor does it compel the Governor to appoint someone on the list. Strictly speaking, the Association may nominate any licensed real estate agent who meets the qualifications in Subsection (1) of
The Commission consists of fivе persons, four of whom are selected in this manner, and a fifth who “shall be a citizen at large who is not associated with or financially interested in the practice or business regulated.”
We acknowledge that
The appellee concedes the creation of a regulatory commission such as the one in question is a proper exercise of legislative power. So is the designation of qualifications or criteria for persons who shall serve on such a Commission, so long as such qualifications or criteria are not impermissibly “arbitrary” within the context of
In Elrod we held constitutional a section of the statute creating the Kentucky Disabled Ex-Servicemen‘s Board, a state agency with “full executive powers” to administer a claims program for disabled veterans, which specified that “all appointments to the Board shall be made by the Governor from a list of five (5) names ... submitted by” the Kentucky branch of the American Legion. The Legion was, and is, a private, voluntary organization, in the same sense as is the Kentucky Real Estate Association in the present case, and the function designated to it by statute was substantially identical to the same function provided for by
In analyzing the function delegated by statute to the American Legion in Elrod, we stated “the legislature has not attempted to appoint administrative officers, nor has it completely denied the appointive function of the exeсutive.” 203 S.W.2d at 20. It has “simply limited the Governor‘s selection to a list of men named by an organization which is not affected by the limitation of
Almost contemporaneously with the decision in Elrod v. Willis, our Court also decided Fraysure v. Ky. Unemployment Comp. Com‘n., 305 Ky. 164, 202 S.W.2d 377 (1947), a suit to test the constitutionality of the statute structuring the newly created Kentucky Unemployment Compensation Commission. The statute in question provided for:
“... an Employment Service Commission composed of a Director of Employment Service and two members, one representing labor and the other management, to be appointed by the Commissioner of Industrial Relations, with the approval of the Governor, from lists of names submitted to him by representatives of labor and management.” 202 S.W.2d at 379.
It also provided certain criteriа or qualifications for the Director, including “at least four years’ full time paid experience in the administration and supervision of a statewide system of public employment service offices,” 202 S.W.2d at 380, which substantially narrowed the Governor‘s choice for this position.
Discussing first the constitutionality of the limitations on the Governor‘s apрointive powers imposed by the statutory qualifications for the office, we said “it is only where the classifications are arbitrary and unreasonable, so as to exclude one or more of a class without a reasonable basis, that the Act is void.” 202 S.W.2d at 381.
Next, with reference to restricting appointment of Commission members to “list оf names submitted ... by representatives of labor and management,” we stated:
“Nor is it unusual in this jurisdiction for the Governor to be required to make appointments from lists submitted to him. It is provided in
KRS 116.010 that the Governor shall appoint two members of the State Board of Elections Commissioners from a list of names if submitted to him by each major politicаl party.” Id.
As we stated earlier in this Opinion, the question before us is the impact on cases such as Elrod v. Willis and Fraysure v. Ky. Unemployment Comp. Com‘n., of our more recent landmark constitutional law decision on the subject of separation of powers doctrine in LRC v. Brown, supra. LRC v. Brown “address[ed] the constitutionality of several Acts of the Kentucky General Assembly passed by that body‘s 1982 regular sеssion,” including statutes which “empower[ed] the Speaker of the House of Representatives and the President Pro Tem of the Senate to appoint one or more members of particular Boards,” statutes making these two legislative officials “ex officio members of certain existing Boards and Commissions,” statutes “conferr[ing] on the LRC or a joint interim legislative committee the power to advise and consent on the Governor‘s appointment to Boards or Commissions,” statutes “direct[ing] the Governor to make appointments solely from a list submitted to him by the LRC“, and statutes “permitt[ing] the LRC or its Chairman to make appointments to certain Boards and Commissions.” 664 S.W.2d at 920. We held these statutes constitutionally impermissible under the separation of powers doctrine, quoting from Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 457 (1922):
“Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution,....” 664 S.W.2d at 913.
We “conclude that any statute subject to the scrutiny of
We do not now retreat from our decision in LRC v. Brown one iota. Nevertheless, there is a fundamental and critical difference between the statutes held constitutionally flawed in LRC v. Brown and the statutes proved as constitutionally valid in Elrod v. Willis and Fraysure v. Ky. Unemployment Comp. Com‘n. The statutes in LRC v. Brown granted the General Assembly continuing power, either directly through its leadership or indireсtly through the LRC (which we recognized was not an independent agency but an arm of the legislature), to require the Governor to appoint to specified commissions persons who were nominees of the legislature. This transgressed the mandate in
Conceivably, there are circumstances in which designating an organization by statute to participate in the nominating process could raise questions regarding the exercise of “arbitrary power” under
Therefore, for the reasons stated herein, we reverse and vacate the judgment of the trial court and remand the case with directions tо enter a new judgment upholding the constitutionality of the statute and dismissing the Complaint.
STEPHENS, LEIBSON, REYNOLDS, SPAIN and WINTERSHEIMER, JJ., concur.
LAMBERT, J., dissents by separate opinion in which COMBS, J., joins.
LAMBERT, Justice, dissenting.
In my view, the statute under consideration is in clear violation of
In defense of its position, the majority observes that the association has a right to include on its list of possible appointees persons who are not its members, and it is noted that the governоr would be entitled to refrain from making any appointment until the list submitted included the names of persons whom he believed to be suitable. While such facts may provide enough breathing space to prevent a stalemate, if a test of wills should develop between the executive and the association, the executive would have to yield or have his power of appointment thwarted. As the governor can appoint only from the list submitted, the entity which controls the list controls who shall be appointed.
This Court‘s landmark decision in Legislative Research Commission (LRC) v. Brown, Ky., 664 S.W.2d 907 (1984), is believed by many to have inaugurated a new era in the interpretation of
“[T]he Legislature may perform all legislative acts not expressly or by necessary implication withheld from it, but it may not perform or undertake to perform executive or judicial acts....”
It cannot be disputed that the appointment of officials is inherently an executive
The majority has emphatically deсlared, “We do not now retreat from our decision in LRC v. Brown one iota.” Despite such protestation, there is a great similarity between the statutes held unconstitutional in LRC v. Brown and the statute upheld in this case. The majority attempts to distinguish this case from LRC v. Brown on the grounds that “the General Assembly [has] no voice in the selection of committee members; its reach extends solely to providing a method of selection ... which is independent of legislative control.” Said otherwise, the majority has the view that the General Assembly may, by delegation of authority to a trade association, do what it cannot do directly. Such a distinction is without a difference.
We should take the oрportunity provided by this case to reiterate the requirement of
COMBS, J., joins in this dissent.