Who’s got the power? KY Supreme Court hears arguments over governor’s authority
The Kentucky Supreme Court Thursday heard arguments in two cases that questioned Democratic Gov. Andy Beshear’s power to make appointments to state boards.
Both cases are related to the separation of powers between the legislative and executive branches.
One of the cases explores whether the power to appoint members to the state fair board belongs to the governor or the agriculture commissioner, and the other seeks to determine whether ethics commission appointments belongs solely to the governor or other executive-level officeholders.
The court cases date back to a pair of laws enacted in the past four years by the Kentucky General Assembly that sought to reduce Beshear’s power to appoint board members.
The governor has fought them in court. Beshear argues in both cases the General Assembly passed laws contrary to the state’s constitution, which Beshear believes gives him ultimate authority.
The cases presented Thursday morning to the Kentucky Supreme Court involve the governor, agriculture commissioner and attorney general, and seek to determine whether the General Assembly, has the power to make changes to longstanding boards. In both instances, legislation changed how the boards were comprised and the key official overseeing appointments.
Kentucky State Fair Board appointments
The first case centers on House Bill 518, passed in 2021, which created a new structure for state fair board appointments.
Beshear sued to challenge the law, saying it was unconstitutional and stripped the governor of power over the board.
H.B. 518 shifted control of the majority of appointees from the governor to the state’s agriculture commissioner, while also and adding the speaker of the House of Representatives and Senate president to the board.
Under the new law, Kentucky’s governor would appoint five members of the board, while the agriculture commissioner, currently Republican Jonathan Shell, would appoint nine members.
Beshear’s lawyer, Travis Mayo, argues the bill violates the constitution by the governor’s authority over an executive branch board and handing that power to another constitutional officer.
Matt Kuhn, an attorney for Shell, argues H.B. 518, a product of the elected General Assembly, should stand.
“If the (Supreme) Court sustains (Beshear’s) argument, it will usher in a sea (of) change not only in how appointments to statutory boards and commissions are made but also to how state government functions day to day,” Kuhn wrote in his brief.
In Kentucky, there are more than 25 boards that do not have majority appointments from the governor.
State Ethics Commission
The second case before the seven-justice panel also calls into question the governor’s appointment authority, this time over the state’s Executive Branch Ethics Commission.
Beshear filed suit in 2022, after the General Assembly passed House Bill 334, which would have eliminated the governor’s power to appoint all members.
Currently, the EBEC consists of five commission members, all appointed by the governor. If enacted, the law would eliminate the current membership and replace it with seven members, five of whom would be picked by the other five constitutional officers: secretary of state, attorney general, treasurer, auditor and commissioner of agriculture.
Beshear’s attorney argues this law is also unconstitutional, calling it a “power grab” by the legislative branch and a “dramatic shift in the longstanding statute.”
If the law stands, Mayo says it would allow the General Assembly to control the executive branch by moving its power to other executive officials whenever they disagree with an executive branch action.
