BERT T. COMBS AND THE LAW

CLE Credit: 1.0 Thursday, May 12, 2016 12:00 p.m. - 1:00 p.m. Cascade Ballroom A Kentucky International Convention Center Louisville, Kentucky

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The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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Kentucky Bar Association TABLE OF CONTENTS

The Presenters ...... i

Bert Combs: Attorney at Law ...... 1

Executive Order: Desegregation in Places of Public Accommodations ...... 5

Executive Order: The State Merit System ...... 7

Letter from President John F. Kennedy ...... 9

Bert T. Combs, Lawyer, Judge, Statesman ...... 11

The Separation of Governmental Powers under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown ...... 13

Creative Constitutional Law: The Kentucky School Reform Law ...... 71

Bert Combs & the Quiet Revolution: The Quest for A New Kentucky Politics, 1955-1960 ...... 81

THE PRESENTERS

Judge Sara W. Combs Kentucky Court of Appeals Post Office Box 709 Stanton, Kentucky 40380 (606) 663-0651 [email protected]

JUDGE SARA W. COMBS serves on the Kentucky Court of Appeals, representing District 7, Division 1. She earned her B.A. and M.A. from the University of Louisville and her J.D. from the Louis D. Brandeis School of Law at the University of Louisville. From 1979-1982, she was an associate with Wyatt, Tarrant, & Combs. From 1982-1989, Judge Combs served as Vice-President of Corporate Development and General Counsel for Naegele Outdoor Advertising Company. Judge Combs maintained a solo practice from 1989-1993. She was appointed as Associate Justice to the Kentucky Supreme Court in 1993 and was later elected to the Court of Appeals, where she served as Chief Judge for six years and now continues her service as a judge on that court. In 1999, she received an Honorary Doctor of Laws degree from Pikeville College and is a member of their Board of Trustees. Judge Combs received the Law Related Education Award of Achievement for the Kentucky Court of Justice in May 1998 and again in 2005. Boards on which she currently serves include: Pikeville College Board of Trustees, Lees College Board of Trustees, E.O. Robinson Foundation, and Thomas D. Clark Foundation. She is a former member of the Boards of the Kentucky Mountain Laurel Festival, the Montgomery County Schools Education Foundation, and the Governors Scholars program. Awards conferred on Judge Combs include: Brandeis School of Law Distinguished Alumna Award, 1994; University of Louisville Alumni Fellow Medallion, 1996; Kentucky Court of Justice Law Related Education Award of Achievement, 1998 and 2005; Pikeville College Honorary Doctor of Laws, 1999; Morehead State University Doctor of Public Service, 2002; Department of Public Advocacy Public Advocate Award, 2006; Union College Honorary Doctor of Laws, 2007; the Justice Thomas B. Spain Award for Outstanding Service in Continuing Legal Education, 2001; and Kentucky Bar Association Outstanding Judge of the Year, 2010. Judge Combs is a member of the Louisville and Kentucky Bar Associations.

i William E. Johnson Johnson Bearse, LLP 326 West Main Street Frankfort, Kentucky 40601 (502) 605-6100 [email protected]

WILLIAM E. JOHNSON is a partner in the law firm of Johnson Bearse, LLP in Frankfort and practices in the areas of civil and criminal litigation. He attended Eastern Kentucky University and received his J.D. from the University of Kentucky College of Law. Mr. Johnson is admitted to practice before the United States District Courts for the Eastern and Western Districts of Kentucky, pro hac vice for the United States District Courts for the Virgin Islands, District of Kansas, Southern District of Ohio, the United States Court of Appeals for the Third and Sixth Circuits, and the United States Supreme Court. He is a member of the American Bar Association, Association of Trial Lawyers of America, Kentucky Academy of Trial Lawyers (President, 1979), Franklin County Bar Association (President, 1980), Kentucky Association of Criminal Defense Lawyers (President, 1990), Kentucky Bar Foundation, and the Kentucky Bar Association (President, 2014-15). In addition, he is a Fellow of the American College of Trial Lawyers, International Academy of Trial Lawyers, American Board of Criminal Lawyers, Roscoe Pound Foundation and the Melvin Belli Society. Mr. Johnson is a contributing author of Kentucky Appellate Handbook, Impeachment of Witnesses, and Kentucky Civil Practice Before Trial. He is the recipient of numerous awards and recognitions. Mr. Johnson is a veteran of the United States Army, reaching the rank of Captain.

Keith L. Runyon Post Office Box 244 Harrods Creek, Kentucky 40027 (502) 396-2192 [email protected]

KEITH L. RUNYON retired in 2012 after forty-three years as a writer and editor with The Courier Journal. For most of his career, he was involved in the opinion functions of the newspaper as opinion pages editor. Currently he is a media specialist who consults for several organizations, including the Center for Interfaith Relations and Preservation Louisville. His weekly commentary on the news appears on WFPL-FM and wfpl.org each Friday. Mr. Runyon received his B.A. from the University of Louisville and his J.D. from the Louis D. Brandeis School of Law at the University of Louisville. He is a member of the Kentucky Bar Association.

ii Sheryl G. Snyder Frost Brown Todd LLC 400 West Market Street, 32nd Floor Louisville, Kentucky 40202-3363 (502) 589-5400 [email protected]

SHERYL G. SNYDER is a member in the Louisville office of Frost Brown Todd LLC where he represents businesses in complex litigation. He is also "the state's premier appellate lawyer" according to Chambers USA. Mr. Snyder received his B.A. from the University of Kentucky and his J.D. from the University of Kentucky College of Law, where he served as Editor-in-Chief of the Kentucky Law Journal. After law school, he served as law clerk to Honorable M.C. Matthes, Chief Judge, United States Court of Appeals for the Eighth Circuit. Mr. Snyder is admitted to practice before the United States Courts of Appeals for the Third, Fourth, Sixth, Seventh, Eighth, Tenth and Eleventh Circuits, and the United States Supreme Court. He is co-author of the treatise "Appellate Practice," Vol. 19 Kentucky Practice. Mr. Snyder is a past president of both the Louisville and Kentucky Bar Associations and a member of the Tennessee, Texas, and Missouri Bar Associations. He is also a Fellow of the American Academy of Appellate Lawyers and the Litigation Counsel of America and a Life Member of the Sixth Circuit Judicial Conference. Mr. Snyder serves on the board of directors of the Louisville Zoo and has served on the boards of directors of numerous community organizations including, Actors Theatre of Louisville, Metro United Way, the Louisville Orchestra, and Leadership Kentucky.

iii

iv BERT COMBS: ATTORNEY AT LAW Judge Sara Walter Combs

I. THE LAW AS VOCATION

For Bert Combs, the practice of law was more than a profession to provide a means of making a living. It was a profound calling, a way of life, and a constant anchor in his life. It was to the practice of law that he always returned after every phase of varied periods of public service.

A. Admission to the Bar: 1937

B. Private Practice of Law: 1937-1942

C. Service in U.S. Army in World War II in the JAG Corps: 1942-1945

He was appointed by General McArthur to serve as the chief investigative officer and prosecutor of war crimes of the Japanese in Manila in the Philippines, again utilizing his legal training in yet another form. These trials were the Southeast Asian counterpart of the Nuremberg trials that later occurred in Europe with respect to the Nazis.

D. Return to Private Practice: 1945-1951

E. Judge, Kentucky Court of Appeals (then the highest court in Kentucky before the passage of the Judicial Article in 1975 and the ensuing restructuring of the courts), 1951-1954

F. Return to Private Practice and an Unsuccessful Bid for Governor in 1955

G. Governor of Kentucky: 1959-1963

H. Return to Private Practice: 1963-1967

I. Judge, Sixth Circuit Court of Appeals: 1967-1970

J. Return to Private Practice and a Second Unsuccessful Run for Governor in 1971

K. Return to Private Practice for the Remaining Twenty Years of His Life (1971-1991)

Became first a member and named partner of Tarrant, Combs, and Bullitt, and then participating in its merger in the summer of 1980 with Wyatt, Grafton, and Sloss, resulting in today's law firm of Wyatt, Tarrant, and Combs.

L. Died in a Flash-Flood, December 3, 1991, en route from His Law Office in Lexington to His Log Home in Stanton

1 M. Prospective Plans for 1992: to Open a Private Practice (two-person firm) in His New Hometown of Stanton, Specializing in Appellate Practice

II. THE GOVERNOR AND THE LAW: 1959-1963

As a lawyer, Bert Combs was cogently aware of the power and the limitations inherent in his executive authority as Governor. That balance, he believed, was an essential component for a chief executive to understand and appreciate.

Highlights of his administration having widespread legal impact include:

A. The Merit System

* Executive order attached

B. State Retirement System

C. Appalachian Regional Commission

D. Desegregation of All Public Facilities by Executive Order

1. Executive order attached.

2. Letter from President Kennedy lauding the impact of the executive order.

His executive order on desegregation was a precursor of the Human Rights Commission later enacted into law under the guidance of Governor Edward T. Breathitt, his successor.

III. COMBS THE PRIVATE LITIGATOR

The law practice of Bert Combs covered both civil and criminal matters and included some of the most complex corporate litigation of the last two decades of his private practice.

Leading examples included:

A. Boggs v. Blue Diamond Coal Co., 590 F.2d 659 (6th Cir. 1979)

This case involved the 1976 Scotia Mine Disaster in Letcher County. Various aspects of the case extended over a period of several years.

B. Central Bank and Trust Co. v. Kincaid, 617 S.W.2d 32 (Ky. 1981)

Another case that produced progeny for several years, this case involved the dissolution of the holdings of Lexington banking magnate Garvis Kincaid.

2 C. Kentucky Utilities Co. v. South East Coal Co., 836 S.W.2d 392 (Ky. 1992)

Combs litigated this case for several years. The case was argued and submitted prior to his death, and the Supreme Court of Kentucky rendered its opinion six months after he died. The case involved the issues of cancellation/foreseeability in a contract dispute over a coal supply agreement between the utility and the coal company.

IV. THE LAW AS LEVERAGE FOR POLITICAL AND SOCIAL CHANGE

A. McSurely v. Ratliff, 282 F.Supp. 848 (E.D. Ky. 1967). Panel consisting of Combs, presiding judge; and Moynahan and Gordon, associate judges.

In a two-one decision, Combs declared the Kentucky sedition law unconstitutional and enjoined prosecution of the McSurelys for sedition.

Back-drop: the eve of McCarthyism during the fifties and the social ferment of the sixties. The motion of The Kentucky Civil Liberties Union to intervene as amicus curiae was granted – as was the motion of Carl and Anne Braden, also charged under the same statute with seditious activities.

Combs wrote as follows:

The statute in question is clearly unconstitutional under even the most flexible yardstick. It is too broad and too vague. It contravenes the First Amendment to the Constitution of the United States because it unduly prohibits freedom of speech, freedom of the press, and the right of assembly. It fails to distinguish between the advocacy of ideas and the advocacy of action. It makes it a criminal offense merely to possess, with intent to circulate, literature on the subject of sedition. It imposes the penalty of imprisonment for advocating an unpopular political belief. It would turn the courts into a forum for argument of political theories with imprisonment the penalty for the loser. It contains no requirement of criminal intent. The unwary and the ignorant could be enmeshed in the dragnet as easily as the covert plotter.

282 F. Supp. at 851.

B. Legislative Research Com'n by and through Prather v. Brown, 664 S.W.2d 907 (Ky. 1984)

A major constitutional case, the LRC case marked the transition from the tradition of gubernatorial supremacy to the erosion of a strong executive power in favor of the legislature of Kentucky. In the words of Sheryl Snyder, who litigated this landmark case with Bert Combs, gubernatorial power went from its zenith to its nadir, a position from which it has never recovered as yet.

3 C. Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989)

This is the most important case of the legal career of Bert Combs. As a private lawyer, he was able to leverage the system to achieve parity in funding for all public schools in a way that he very likely could not have accomplished even as Governor.

At issue was the proper construction of Section 183 of the Kentucky Constitution:

"The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state."

That innocuous, abbreviated mandate in one sentence brought about massive school reform in Kentucky that made headlines from coast to coast in this country – and even resulted in a news story in England's Manchester Guardian.

Combs represented as plaintiffs a group of school superintendents in a class action in which the Governor and the General Assembly were named as defendants.

Ultimately, the Supreme Court of Kentucky ordered compliance with Section 183, requiring both uniformity and adequacy of all schools in Kentucky (as implied by "efficiency") and forcing the General Assembly to fund all school districts to a level of adequacy.

V. IN CLOSING

Bert Combs was fond of noting that "there is nothing as ex as an ex-Governor." But there really is no such thing – at least as far as he was concerned – as an ex-lawyer.

4 EXECUTIVE ORDER: DESEGREGATION IN PLACES OF PUBLIC ACCOMMODATIONS FRANKFORT / JUNE 26, 1963 Taken from The Public Papers of Governor Bert T. Combs 1959-1963, George W. Robinson, Editor © 1979 by The University Press of Kentucky

WHEREAS, the denial of equal opportunity in an access to places of public accommodations because of race, color, creed, or national origin, is unfair, unjust, and inconsistent with the public policy of the Commonwealth of Kentucky as manifested in its constitution and in the Constitution of the United States; and

WHEREAS, the executive branch of the government in executing the laws of the Commonwealth of Kentucky and the United States which prohibit discrimination based on race, religion, creed, color, or national origin, is charged with an obligation and duty to assure that those laws are fairly administered and that benefits thereunder are made available to all Kentucky citizens without regard to race, religion, color, creed, or national origin;

Now, THEREFORE, by virtue of the authority vested in me as governor of the Commonwealth of Kentucky by the constitution and laws of the Commonwealth of Kentucky, it is ordered as follows:

Section 1. All departments and agencies in the executive branch of state government, insofar as their functions relate to supervision or licensing persons or organizations (doing business or practicing a profession) in this state, shall take all lawful action necessary and appropriate to prevent at all times discrimination because of race, color, creed, or national origin.

Section 2. All such executive departments and agencies shall take such other appropriate action permitted by law, including revising the rules and regulations, if required, to promote the abandonment of discriminatory practices by all permittees or licensees under their jurisdiction.

Section 3. Each executive department and agency subject to this order is directed to submit to me within sixty (60) days from this date a report outlining all current programs administered by it which are affected by this order.

Section 4. The chief administrative officers of each executive department or agency of state government administering programs affected by this order is directed to proceed with all deliberate speed toward a program of full compliance with the purposes and intents of this executive order. This responsibility is nondelegable.

Pressed by civil rights leaders in Louisville to ask a special session of the legislature to consider a statewide public accommodations law, Combs resisted. The session was called, he insisted, to keep the UMW hospitals in eastern Kentucky from closing down – something that the governor believed should be done on a nonpartisan basis. To inject the civil rights issue into this situation would threaten the nonpartisan spirit and jeopardize the needed hospital legislation. Even so the clamor continued until Combs

5 finally responded not by referring the matter to the legislature but by using his power as chief executive. The wording was almost identical to that used by Governor Matthew Welsh of Indiana at an earlier time except that Welsh acted on the basis of legislative authorization.

6 EXECUTIVE ORDER: THE STATE MERIT SYSTEM FRANKFORT / DECEMBER 9, 1959 Taken from The Public Papers of Governor Bert T. Combs 1959-1963, George W. Robinson, Editor © 1979 by The University Press of Kentucky

WHEREAS, it is desirable, fitting and necessary for a civil service system to be based upon law; and

WHEREAS, the present "merit system" is without legal foundation and subject to the whim and caprice of arbitrary action; and

WHEREAS, civil service status, bedded in statutory authorization, is necessary for certain employees of the Commonwealth in order to qualify for federal funds; and

WHEREAS, the Kentucky Personnel Council has done valuable work in the field of screening and testing, the benefits of which should not be lost or neglected; and

WHEREAS, I am firmly committed to a merit system created, authorized and established by statute enacted by legislation, so as to give permanence, stability, legality, and continuity to a civil service program for employees of the Commonwealth; and

WHEREAS, a lawful and sound civil service program in certain departments has been jeopardized by the repeal of regulations lawfully promulgated, and substitution of regulations which appear to have been unlawfully promulgated;

NOW THEREFORE, in order to pave the way to a legal and enduring merit system, by virtue of the authority vested in me under the constitution and statutes, as chief executive officer of the state of Kentucky, I, Bert Combs, do hereby direct the continuation of merit system status for the Department of Economic Security, Department of Fish and Wildlife Resources, Department of Health, the Division of State Police and all departments of state government required or authorized by statute to give civil service status to employees thereof. The commissioner of economic security is directed to take immediate steps to adopt regulations, authorized by KRS 195.010, necessary to qualify for federal funds.

Having no basis in law or regulations legally enacted, all other alleged merit systems and civil service status for certain state personnel are declared inoperative and they are abolished.

The commissioner of economic security and the Personnel Council are directed to repeal all alleged regulations inconsistent with this executive order.

Recognizing the valuable testing program conducted by the Kentucky Personnel Council and wishing to preserve for the benefit of the Commonwealth any benefits accruing from this program, the Personnel Council and the director thereof shall complete the testing program in job classifications already completed in part, suspending all others. The Kentucky Personnel Council and the director thereof may perform such testing functions as requested by the commissioner of the Department of Personnel. The commissioner

7 of personnel shall perform his duties pursuant to the provisions of Chapter 18 of the Kentucky Revised Statutes.

The commissioner of economic security shall forthwith initiate steps carrying out the provisions of this executive order applicable to him and the Department of Economic Security.

Nothing in this order is intended to affect or jeopardize the receipt of federal funds by the Commonwealth of Kentucky.

This executive order shall become effective immediately.

On his first full day in office as governor, Bert Combs abolished that part of the state's merit system which Governor A. B. Chandler had extended by executive order to cover nearly all state employees. Governor Combs believed that the merit system should be enlarged but should be based on statutory not executive foundations.

8 9

10 BERT T. COMBS, LAWYER, JUDGE, STATESMAN William E. Johnson

If you knew Bert Combs, you liked him. He was by nature quiet and unassuming. He was brilliant. It was a pleasure to be in a room full of lawyers discussing a legal problem with Bert in attendance. He seemed to believe that it was best to let all the others speak before he joined in the conversation. He was a good listener. But at the same time he was analyzing the situation. When he spoke everyone listened. He could take the most complex legal problem and boil it down to a simple solution. When he finished speaking, which was never very long, you wondered why you had wasted so much time listening to others discuss the problem. Even when his brilliance shone, Bert was always humble.

His actions, whether as lawyer, judge or politician, always followed the same method: he listened and then spoke only if he had something to add. Yet he was never shy about facing the problem at hand. He was very decisive when necessary. For instance, when former governor and U.S. Senator Earle C. Clements wanted to be appointed Kentucky Highway Commissioner, several of Bert's friends told him not to appoint Earle because they feared he would be hard to control. Bert felt a loyalty towards Earle and appointed him Highway Commissioner. Bert's friends were correct – Earle commenced to acting as if he was running the government of Kentucky. Bert, recognizing Earle's actions were not good for the Commonwealth, relieved Earle as commissioner. This took courage.

Bert, while Governor, was a strong supporter of education. He supported equal rights for minorities when this was not a popular position. He put in practice the state merit system to protect state employees. He installed the floral clock on the capitol grounds to the dismay of Happy Chandler. He pushed passage of a sales tax which has had a good lasting effect on Kentucky. Many say he was the most progressive Governor of Kentucky in the 20th century.

He was a pleasure to know. I am pleased that he called me a friend.

11

12 THE SEPARATION OF GOVERNMENTAL POWERS UNDER THE CONSTITUTION OF KENTUCKY: A LEGAL AND HISTORICAL ANALYSIS OF L.R.C. V. BROWN Sheryl G. Snyder and Robert M. Ireland∗ Reprinted with permission from 73 Ky. L.J. 165 (1984).

Table of Contents

INTRODUCTION ...... 14 I. THE HISTORICAL BACKDROP: ...... 14 A. The Constitutional Convention of 1890-91: A Reaction to Legislative Ascendancy ...... 14 B. The Struggle for Legislative Parity ...... 20 1. The Legislative Research Commission – From Research Assistance to Shadow Government ...... 20 2. There is No Fourth Branch of Government ...... 26 C. Palmore’s Prelude Opinions ...... 31 1. Ex Parte Auditor of Public Accounts ...... 31 2. Brown v. Barkley ...... 34 3. Procedural Skirmishes in L.R.C. v. Brown: Old Court – New Court ...... 40 4. The Sub-Silentio Overruling of Barkley’s Dicta in L.R.C. v. Brown ...... 42 II. THE OPINION IN L.R.C. V. BROWN: "KENTUCKY’S MARBURY V. MADISON" ...... 46 A. The Fundamental Constitutional Principles ...... 46 1. The Separation of Powers Provisions Are Strictly Construed in Kentucky ...... 46

∗ Mr. Snyder is a partner in Wyatt, Tarrant & Combs, the firm which represented Governor John Y. Brown, Jr. in L.R.C. v. Brown. He is a 1971 graduate of the University of Kentucky College of Law, where he served as Editor-in-Chief of this Journal.

Dr. Ireland is a Professor of History at the University of Kentucky, and testified in L.R.C. v. Brown on behalf of the Office of the Governor as an expert on the 1891 Kentucky Constitutional Convention. A specialist in American Constitutional and Legal History, Dr. Ireland has written three books on the counties in Kentucky history and articles on the criminal justice system of nineteenth century America.

AUTHORS' NOTE: While the authors are solely responsible for this article and its analyses, it is in many respects based upon the research and ideas of the team of lawyers who represented Governor Brown and (then) Attorney General (now) Lt. Governor Beshear in the litigation. Acknowledgement must therefore be expressed to Bert T. Combs, the late Edward F. Pritchard, Jr., Thomas P. Lewis, Robert K. Cullen, Francis J. Mellen, Jr., Susan T. Barnett, John S. Osborn III and Mary Ann Main of Wyatt, Tarrant & Combs, Robert L. Chenoweth, then of the Office of the Attorney General, and Rush Dozier and James L. Dickinson, then of the Office of the General Counsel to the Governor. Special acknowledgement also goes to Mr. Gage Johnson, a student at the University of Virginia School of Law, for his assistance in preparing this manuscript.

13 2. Legislative Action Having Force of Law Must Comply with all the Constitution’s Procedural Requirements for Enacting Laws ...... 48 B. The Power of Appointment ...... 49 1. Statutes Empowering the Speaker and President Pro Tempore to Appoint Members of Executive Agencies Violate the Separation of Powers Clauses ...... 50 2. Statutes Requiring the Governor to Choose His Appointees from Persons Nominated by the Legislature Violate the Separation of Powers ...... 55 3. Statutes Empowering the L.R.C. to Exercise the Power of Advice and Consent Regarding Executive Appointments Are Unconstitutional...... 56 4. Section 28 Prohibits Legislators from Serving on Executive Boards ...... 56 C. The Legislative Veto of Administrative Regulations ...... 57 D. The Power of the Purse ...... 62 1. Managing Revenue Shortfalls in the Interims between Legislative Sessions ...... 64 2. The Budget Must Be a Bill, Not a Joint Resolution ...... 66 3. Encompassing Federal Block Grants into the Budgetmaking Process ...... 66 E. Executive Reorganizations ...... 68 CONCLUSION: IN PRAISE OF L.R.C. V. BROWN ...... 69

INTRODUCTION

The decision of the Kentucky Supreme Court in Legislative Research Commission v. Brown (hereinafter L.R.C. v. Brown) has been called Kentucky's Marbury v. Madison because of the number of fundamental constitutional issues which were resolved by the Court in that case. The antecedents of the litigation are at least as old as the Constitutional Convention of 1890-91 (Constitutional Convention), and are at least as current as the nationwide era of legislative independence which has marked the the[sic] 1980's[sic]. Accordingly, the following analysis of the Court's decision attempts not only to review the legal issues involved in the case and the Court's disposition of them, but also to analyze both the historical backdrop and the historical impact of the case.

I. THE HISTORICAL BACKDROP

A. The Constitutional Convention of 1890-91: A Reaction to Legislative Ascendancy

A desire to control legislative excesses constituted the principal reason for the convocation of the Constitutional Convention. John D. Carroll, a delegate from Henry County, observed: "[E]xcept for the . . . abuses practiced by the Legislative Department of this State . . . no proposition to call a Constitutional Convention could ever have

14 received a majority of the votes of the people of Kentucky."1 Former Speaker of the Kentucky House of Representatives, William C. Owens of Scott County, told his delegate: ''[E]very reform you attempt will turn to ashes . . . unless you do something to reform the Legislative Department."2

Reflecting a national problem, by 1880 the Kentucky legislature had become bogged down in local and private legislation to the neglect of the problems that affected the state as a whole. This preoccupation with local and private matters in part reflected traditional legislative concerns and in part represented newly institutionalized greed and corruption. American legislatures of the colonial and antebellum periods customarily dealt more with the petitions of individual citizens and their localities than with general concerns.3 What differed about the post-Civil War period in Kentucky and elsewhere was that the quantity of local and private matters had grown unmanageable.4 Further, a relatively new type of ''private'' petitioner, the business corporation, had begun to extract profitable immunities and other benefits from the legislature through the use of paid lobbyists, intense political pressure and, in all probability, legislative bribes.5

The General Assembly of 1883-1884 generated a typical legislative work product. Of the 1,640 statutes enacted, 1,471 were officially described as private or local laws and another sixty­nine in reality fit that description.6 Thus, 1,540 statutes, or nearly ninety- four percent, concerned local or private matters. Sample statutes included: "An act for the benefit of W.M. Davis, late sheriff of Clinton County";7 "An act to legalize the acts of the levy court of Webster County made for certain years";8 "An act to incorporate the Kentucky Paving and Contract Company";9 and "An act to prohibit the chasing of deer with dogs in Jackson County."10

All of this resulted not only in legislative inattention to the newly emerging problems of the Industrial Revolution, which demanded laws applicable to the entire state, but also in legislative inefficiency and incompetence. Confronted with several thousand bills each

1 I Official Report of the Proceedings and Debates in the Convention Assembled at Frankfort on the Eighth Day of September, 1890, to Adopt, Amend or Change the Constitution of the State of Kentucky 1482 (1890) [hereinafter cited as Debates].

2 II Debates, supra note 1, at 3821.

3 R. Luce, Legislative Problems: Development, Status and Trend of the Treatment and Exercise of Lawmaking Powers 538-49 (reprint 1971).

4 Id. at 532-92.

5 II Debates, supra note 1, at 2527-28 (statement of H.R. Bourland).

6 See 1883-1884 Ky. Acts.

7 Act of Apr. 30, 1884, ch. 1131, 1883 Ky. Acts 598.

8 Act of Apr. 30, 1884, ch. 1132, 1883 Ky. Acts 599.

9 Act of Apr. 30, 1884, ch. 1150, 1883 Ky. Acts 642-44.

10 Act of Apr. 30, 1884, ch. 1150, 1883 Ky. Acts 602.

15 session and only a few months to consider them, legislators enacted many bills into law without even reading them.11 This system produced statutes that conferred special privileges on a few, and legislation that was so sloppily drafted that it became the object of public ridicule.12

Not surprisingly, these deficiencies translated into political unrest that produced the Constitutional Convention of 1890-1891,13 and led to the election of delegates who were determined to eliminate as many of the legislative abuses as possible.14 To this end the Constitution of 1891 (Constitution) more resembles a code of laws than a constitution. Although constitutions typically consist of general declarations of powers, rights and limitations, the Constitution of 1891 contains very specific and detailed powers, rights and, especially, limitations. The document prohibits most types of local and private legislation by specifically proscribing twenty-eight types of such legislation and by generally making most other types of local and private laws difficult to enact.15 The Constitution also prohibits the legislature from granting tax immunities except to a few specified activities.16 In an effort to control the tendency of the legislature to create too many counties,17 specific limitations were placed on the future establishment of counties.18

The delegates intended to make the legislature more efficient and less costly. For example, they required each bill to be printed and to be read at least once (and as often

11 See III Debates, supra note 1, at 3868.

12 A Garrard County lawyer, Robert M. Bradley, published a pamphlet in 1879 satirizing the entire Kentucky legislative process as being replete with semiliterate legislators and illogical, self- contradictory legislation. R. Bradley, A Sketch of Granny Short's Barbecue and the General Statutes of Kentucky (1879). At the Constitutional Convention of 1890-91 Governor Simon B. Buckner told his fellow delegates that he had received from the most recent legislature "a bill involving large interests . . . of the people of two large and populous counties, passed through both bodies of the Legislature in thirty-five minutes, . . . [t]he tenor [of which] was unknown entirely to almost every person in those two counties, although it involved their interests very materially." See III Debates, supra note 1, at 3868. Alleging that probably "not ten men in the Legislature knew what they were voting on," Buckner declared that he vetoed the bill, a practice too seldom relied on by chief executives to restrain such ill­considered legislation. See id.

13 H. Tapp & J. Klotter, Kentucky: Decades of Discord 1865-1900, at 258-68 (1977).

14 Id. at 258-60.

15 See KY. Const. §§59-60.

16 See KY. Const. §170. This was a direct response to previously successful efforts of such powerful lobbies as the Louisville & Nashville Railroad which had secured legislative exemptions from taxation, as an incentive for new railroad construction. See H. Tapp & Klotter, supra note 13, at 300.

17 By 1890, Kentucky had more counties per acre than any state except the more densely populated Rhode Island. The legislature created only one additional county after 1891.

18 See KY. Const. §63.

16 as three times), thereby reducing opportunities for clumsy draftsmanship.19 Believing that the elimination of most private and local law-making would reduce the time needed for legislative sessions,20 the delegates specified that each legislative session could last for only sixty legislative days.21 They continued the 1850 Constitution's requirement that regular sessions be held biannually,22 and placed restraints on special sessions by giving the Governor exclusive power to convoke them and to determine their agenda.23 To control and eliminate the problem of coping with job-seekers,24 the drafters also limited to twenty-two the number of employees the legislature could hire.25

Cynicism about the legislature's ability to control two perceived malefactors of the Industrial Revolution, corporations in general and railroads in particular, prompted the delegates to impose very specific limitations and obligations upon these two institutions and upon the legislature.26 Corporations were prohibited from issuing watered stock,27 required to have resident agents,28 and restricted in their ability to own and hold real estate.29 The legislature was required to enact an antitrust statute.30 By general law, the legislature was required to provide for the revocation of the charters of domestic corporations which abused their powers,31 for the regulation of telephone and telegraph companies,32 and for the inspection of grain, tobacco and other produce.33 The Constitution imposed on railroads the duty to maintain equal and uniform rates and services34 and forbade them from operating nonrailroad businesses.35 Fearful that the

19 See KY. Const. §46. See also KY. Const. §§51, 55 (additional mechanical limitations upon the General Assembly's power).

20 III Debates, supra note 1, at 3790 (statement of I.A. Spalding).

21 See KY. Const. §42.

22 See KY. Const. §36.

23 See KY. Const. §80.

24 See III Debates, supra note 1, at 4360-61, 4921-22 (statements of Charles Durbin and H.G. Petrie).

25 See KY. Const. §249.

26 See III Debates, supra note 1, at 3637 (statement of J.D. Clady).

27 See KY. Const. §193.

28 See KY. Const. §194.

29 See KY. Const. §§192, 210.

30 See KY. Const. §198.

31 See KY. Const. §205.

32 See KY. Const. §199.

33 See KY. Const. §206.

34 See KY. Const. §§197, 213.

17 powerful railroad lobby would secure the abolition of the recently established Railroad Commission,36 the delegates made that agency a constitutional body.37 Afraid that future legislators would continue to avoid needed reform,38 the delegates also required the General Assembly to enact a child labor law39 and to establish a state reformatory for adolescent criminals.40

Without discussion, the delegates incorporated into the Constitution essentially the same provisions about the separation of powers which had been in the original Constitution of 1792 and in its two successors, thereby preserving language that originally was probably intended to limit the legislature.41 Although the debates of the Constitutional Convention of 1792 were not recorded, it is clear that they took place at a time in which the separation of powers doctrine had taken on new and important meaning for American constitutional theorists and practitioners. By 1776 Americans had invented and developed the doctrine in order to resist encroachments by the executive branch.42 During the next sixteen years the legislative branch assumed so much power that theorists redefined the separation of powers doctrine to protect the executive and judicial branches from legislative encroachment.43 Thus, when the Constitution of 1792 was adopted, the separation of powers doctrine had evolved into a limitation of the powers of the legislature.44

35 See KY. Const. §210.

36 See IV Debates, supra note 1, at 4984 (statement of Emery Whitaker).

37 See KY. Const. §209. To curtail the legislative influence of the lobby, the delegates prohibited one of the lobby's favorite practices, the granting of free railroad passes to public officials. See KY. Const. §197; III Debates, supra note 1, at 3638-39 (statement of J.D. Clady).

38 "'Delegates to the convention attempted to anticipate future needs of the government and provide for them in specific sections of the constitution.'" H. Tapp & J. Klotter, supra note 13, at 266 (quoting T. Clark, A History of Kentucky 425 (rev. ed. 1960)).

39 See KY. Const. §243.

40 See KY. Const. §252.

41 The relevant sections provide: Section 27. The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to-wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. Section 28. 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. KY. Const. §§27, 28.

42 G. Wood, The Creation of the American Republic, 1776-1787, at 157-58 (1969). See also text accompanying notes 209-12 infra.

43 G. Wood, supra note 42, at 446-54, 547-53.

44 See M. Vile, Constitutionalism and the Separation of Powers 152 (1967).

18 While the framers of the Kentucky Constitution of 1891 did not dwell on the separation of powers provisions (sections 27 and 28), in debates on other issues they did make clear their devotion to the principles contained in those sections.45 In their effort to curtail the practice of enacting private and local legislation, the delegates incorporated into the new Constitution a general provision specifying that ''in all other cases where a general law can be made applicable, no special law shall be enacted."46 Some delegates further suggested that a special committee of legislators "learned in law" be empowered at each legislative session to decide whether "a general law [could] be made applicable"47 to a problem proposed to be solved by special legislation. Believing that this committee would represent an invasion by the legislature on the powers of the judiciary, the delegates rejected this proposal to avoid violating the separation of powers doctrine.48 Despite great dissatisfaction with the Governor's pardoning power,49 the delegates likewise rejected, as violative of the separation of powers doctrine, a proposal requiring the Governor to make an annual report on pardons to the legislature.50

The Governor, whose office was not a strong one during the latter half of the nineteenth century, emerged from the Convention with greater power. Although the Governor lost the authority to appoint the Secretary of State51 and the Railroad Commissioners,52 he acquired the power to make line item vetoes,53 to determine the agenda for special legislative sessions,54 and to commute sentences of convicts.55 Despite vigorous opposition,56 the Governor retained the unconditional power to pardon,57 one of the most complete in the nation.58

45 See, e.g., I Debates, supra note 1, at 1050 (statement of W. Hendrick).

46 See KY. Const. §59(29).

47 III Debates, supra note 1, at 4006 (statement of McDermott).

48 In the words of Thomas S. Pettit, a prominent member of the convention, the proposed legislative committee "mingle[d] the judicial system with the legislative system . . . the theory of this government has always been for the purpose of keeping the several departments entirely independent one of the other ...." ld. Delegates also resisted the proposal because they believed it would involve an undue concentration of legislative power in the hands of a few select legislators. See id. at 4007-09, 4014-15 (statements of T. Pettit and C.F. Burnham).

49 See I Debates, supra note 1, at 1088-90 (statement of C. Bronston).

50 See id. at 1119 (statement of James Blackburn opposing the measure because it violated "[o]ne of the foremost ideas in our form of Government . . . that these three co-ordinate branches of Government are independent, the one of the other, and that neither [sic] shall be tributary to the other").

51 See KY. Const. §91.

52 See KY. Const. §209.

53 See KY. Const. §88.

54 See KY. Const. §80.

55 See KY. Const. §77.

56 See I Debates, supra note 1, at 240-48, 1087-1123, 1245-1301, 1318-50.

19 In 1892, after Kentucky's highest court sidestepped a challenge to the final document,59 the Constitution of 1891 was implemented. This document specifically limited the power of the legislature and, on balance, enlarged the power of the Governor.60 More importantly, the Constitution gave future Governors, faced with much greater and unforeseen demands on state government, the opportunity to expand significantly the powers of their office. Because of the constitutional limitations, the legislature could not meet these demands, and it was thus left to the Governor to fill the void.

B. The Struggle For Legislative Parity

1. The Legislative Research Commission – From Research Assistance to Shadow Government

The Constitution of 1891 resulted in an imbalance of political power between the Governor and the legislature.61 Handicapped by its brief session62 and its lack of legal

57 See KY. Const. §77.

58 C. Jensen, The Pardoning Power in the United States 15-16 (1922).

59 After the voters had overwhelmingly ratified the new constitution in a referendum mandated by the legislature, the delegates reconvened in order to "correct grammatical mistakes, ambiguities and contradictions." IV Debates, supra note 1, at 5636, 5682-83. However, in the process they also made several substantive changes including making the office of Railroad Commissioner elective rather than appointive, see KY. Const. §209; IV Debates, supra note 1, at 5819-56, and deleting §76 which had empowered the Governor to "appoint, with the advice and consent of the Senate, all State officers who are not required by this Constitution or the laws made thereunder, to be elected by the people," see IV Debates, supra note 1, at 5728. As explained by Charles J. Bronston, delegate from Fayette County and principal proponent of the §76 revision, the deletion was necessary to avoid a conflict with what would be §93 which specified: "Inferior State officers, 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." See id. at 5728-29 (quoting KY. Const. §93). Bronston stated that the Constitution of 1850 had not contained a provision similar to §76 and that the provision had been included in the Constitution of 1891 only to permit the Governor to appoint the State Librarian. Id.

Because of these and other post-referendum revisions, a group of "voters and tax­payers" brought an action in the Franklin County Circuit Court to enjoin both the Public Printer from printing the new Constitution at public expense and the Secretary of State from preserving the document in the State Archives as the official Constitution of Kentucky on the grounds that it had been unconstitutionally revised after the voters had ratified it. The Franklin Circuit Court's refusal to issue an injunction was affirmed by the Kentucky Court of Appeals on the ground that the question was political and not judicial. See Miller v. Johnson, 18 S.W. 522, 524 (Ky. 1892).

60 See notes 51-58 supra and accompanying text.

61 One might mark this era's beginning as the passage of the executive reorganization act in 1936, an act which Governor Chandler utilized extensively. Government Reorganization Act of 1936, Carroll's KY. Stat. Ann. §§4618-68 to -148 (Baldwin 1936).

62 See KY. Const. §42.

20 existence after its biennial adjournment,63 the legislature was unable to gather sufficient information to evaluate legislative proposals submitted by the Governor. This lack of information gave the Governor a special advantage in affecting the biennial budget, and thereby all of state government.

A consensus arose that an entity should be created to provide the legislature with the requisite research during the interims between its sessions to enable its members to better discharge their legislative function. Consequently, the Legislative Research Commission (L.R.C.) was born in 1936 as the Legislative Council.64 However, the very existence of the L.R.C. in 1936 was questionable under the Adjournment Clause65 because "[a] legislative body ceases to exist at the moment of its adjournment.''66

In addition to the question raised by the Adjournment Clause, there was a question under section 249 of the Kentucky Constitution concerning employment of the L.R.C.'s staff members. Section 249 expressly limits the number of employees who may be hired by the legislative department, and the L.R.C.'s staff vastly exceeds that number.67 In the leading case construing section 249, Shanks v. Julian,68 the Court extensively reviewed the portion of the Constitutional Convention Debates which led to the adoption of section 249, and noted that the Constitutional Convention voted down a provision which would have permitted the General Assembly to choose "such officers as were necessary for the organization and work of the General Assembly.''69 Although recognizing the

63 See note 66 infra and accompanying text.

64 Act of Mar. 7, 1936, ch. 1, art. XXI, §1, 1936 Ky. Acts 44-48 (Extra Session - Reorganization) (codified at Carroll's KY. Stat. Ann. §§4618-138 to -142 (Baldwin 1936)). See also Lloyd and Singleton, Kentucky Government, L.R.C. Informational Bulletin No. 137 (1980).

65 See KY. Const. §42.

66 Legislative Research Comm'n v. Brown, 664 S.W.2d 907, 915 (Ky. 1984) (citing Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)) [hereinafter cited as L.R.C. v. Brown]. Arguably this constitutional concern was mooted by the adoption of the Kenton Amendment, ch. 440, 1978 Ky. Acts 1400-01 (codified at KY. Const. §§30a, 31a, 36a, 42a, 256). See also notes 113-17 infra and accompanying text.

67 Section 249 provides: The house of representatives of the general assembly shall not elect, appoint, employ or pay for, exceeding one chief clerk, one assistant clerk, one enrolling clerk, one sergeant at arms, one doorkeeper, one janitor, two cloakroom keepers and four pages; and the senate shall not elect, appoint, employ or pay for, exceeding one chief clerk, one assistant clerk, one enrolling clerk, one sergeant at arms, one doorkeeper, one janitor, one cloakroom keeper and three pages; and the general assembly shall provide, by general law, for fixing the per diem or salary of all of said employees. KY. Const. §249.

68 280 S.W. 1081 (Ky. 1926).

69 See id. at 1082 (emphasis in original).

21 legislature's need for additional help and the present day inadequacy of section 249, the Court held that the section prohibited the employment of staff members for the L.R.C.70

In addition to the questions posed by section 249 and the Adjournment Clause, section 28 of the Kentucky Constitution prohibits a member of one department of government from serving in another department.71 Accordingly, had the L.R.C. been composed only of members of the legislature, and not been chaired by either the Governor or the Lieutenant Governor, its constitutionality would have been doubtful under section 28.

To circumvent these problems, the Legislative Council was created in 1936 – with the Governor as its Chair – ostensibly as an agency within the executive department.72 The original Legislative Council was composed of fifteen members – five senators appointed by the Lieutenant Governor, five representatives appointed by the Speaker of the House of Representatives and five state officials appointed by the Governor.73 The Legislative

70 See id. at 1084, 1086. The Court considered the purposes of §249 and the legislature's need for help and stated:

In the light of . . . the debate in the convention on the adoption of this section as a part of our fundamental law, it is very clear that the purpose of section 249 was to forbid the employment of any help by the General Assembly other than that designated in that section . . . . It was thought by the convention that the help authorized by section 249 would be ample for any possible need thereafter of either house of the General Assembly, and, although the lapse of time and march of progress have demonstrated that the convention was mistaken in this, yet this argument . . . goes to the amending of section 249 rather than the ignoring of it.

. . .The main purpose of the section was economy. It may have turned out to be false economy, but, false or true, economy was its main purpose.

. . .We have arrived at this conclusion with regret. We fully realize that the growth of this commonwealth since the adoption of the present Constitution, the development of its natural resources, the expansion of its mineral production; the increasing importance of its manufactories have all brought in their train numerous and perplexing problems, most of which call for the serious attention of and solution by the legislative body. With the growth of business, the need of help to dispatch it necessarily increases. No one who is acquainted with the immense amount of detail work which now confronts our legislative bodies can help but admit the need, at least in part, if not in its entirety, of the extra help provided for in these resolutions. It is to be regretted that the constitutional convention in its wisdom did not foresee our material growth and expansion and did not, at least in this particular, leave a freer rein to the General Assembly. But regrets or no, it did not and there is naught else for us to do until the people by their sovereign will change that instrument, but to abide in letter and in spirit by the mandates of the Constitution.

Id.

71 664 S.W.2d at 924 (interpreting KY. Const. §28).

72 Id. at 910.

73 Id.

22 Council was empowered solely to engage in fact-finding and to employ a director and research assistants for that purpose.74

In 1948, the Legislative Council was renamed the Legislative Research Commission, and its membership reduced to seven – the Governor as Chair, the President Pro Tempore of the Senate, the Speaker of the House of Representatives and the majority and minority floor leaders of both the Senate and the House.75 The powers of the L.R.C. remained substantially the same as those of the Legislative Council, namely, fact-finding and research, and its new name well-described its role. In 1956, the Lieutenant Governor replaced the Governor as Chair of the L.R.C.76

The very existence of the L.R.C. is an example of the "play in the joints" that is often essential for the operation of our system of government. The willingness of the legislative and executive branches to engage in the fiction that the L.R.C. was an agency of the executive department enabled the L.R.C. to function in the interim between sessions and to hire necessary employees to discharge its support functions without violating the Constitution.77 However, with the gradual transformation of the L.R.C. from a titular executive agency conducting research into an administrative arm of the General Assembly, the forces that created L.R.C. v. Brown were set in motion.

Historians might trace this transformation to the 1963-67 gubernatorial administration of Louie B. Nunn, a Republican Governor in a predominantly Democratic state. There was an obvious incentive for Democratic legislative leaders to demand that a minority party Governor share power with them. In addition, during Nunn's administration, two dominant Democratic political figures presided over the legislature: Lt. Gov. Wendell H. Ford and Speaker of the House of Representatives Julian M. Carroll. With these forces at work, it was inevitable that the role of interim committees of the L.R.C. began to expand during this era.

The next change occurred in 1974, after Ford had become Governor and Carroll had become Lieutenant Governor. The Lieutenant Governor was replaced as Chair of the L.R.C. by the Speaker of the House of Representatives and the President Pro Tempore of the Senate, as co-Chairs.78 Consequently, with all members of the L.R.C. being members of the legislature,79 the L.R.C. became a legislative agency. Despite the

74 Id. In 1944, the membership of the Legislative Council was increased to sixteen persons – eight senators appointed by the Lieutenant Governor and eight representatives appointed by the Speaker of the House. The powers of the Legislative Council were expanded to include organizational functions prior to each regular session of the General Assembly, but the Council was limited to a total of sixty meeting days each biennium. Act of Mar. 18, 1944, ch. 149, 1944 Ky. Acts 317-20.

75 See Act of Feb. 27, 1948, ch. 15, 1948 Ky. Acts 59-62.

76 See Act of Mar. 12, 1956, ch. 7, art. XII, §1, 1956 Ky. Acts (Special Sessions) 54-56.

77 Ky. Op. Att'y. Gen. 142 (Feb. 18, 1975); 74 Ky. Op. Att'y Gen. 842 (Dec. 1, 1974); 73 Ky. Op. Att'y Gen. 817 (Dec. 11, 1973).

78 See Act of Apr. 1, 1974, ch. 353, 1974 Ky. Acts 675-76.

79 The ex officio members of the L.R.C. are the President Pro Tempore of the Senate, the Assistant President Pro Tempore of the Senate, the Speaker of the House of Representatives,

23 obvious constitutional problems created by this legislative action, Governor Carroll chose not to challenge the action. Some would attribute Governor Carroll's decision not to challenge the L.R.C.'s new role to his being a product of the legislature and a champion of legislative independence. For example, he supported the Kenton Amendment which subsequently legitimized the interim committee structure of the L.R.C.80 Other pundits would say that Carroll so dominated the legislature that the L.R.C.'s independence existed only in the statute books and legal challenges were unnecessary. In either event, the constitutional issues lurked undecided for a decade.

The ascendancy of John Y. Brown, Jr. to the governorship in December, 1979, signaled a legislative renaissance in Kentucky that strove to redress the nearly fifty-year old constitutional imbalance. As Governor, Brown quickly became a disciple of his father's long-time advocacy of legislative independence, a stance that suited his image as a non- traditional Governor who critics asserted was disinterested in the details of governance and especially in the legislative process.81 The legislative renaissance was continued when the 1980 General Assembly made extensive use of the interim committee system to keep a careful watch on the executive branch. These efforts coincided with a national trend of state legislative revitalization characterized by such actions as legislative vetoes of administrative regulations and the formation of interim legislative committees on capital construction projects.82

The 1982 General Assembly moved more boldly into the national movement of legislative independence by enacting a group of laws, many patterned after laws recently enacted in other states. It amended Kentucky Revised Statutes section 7.090 [hereinafter referred to as KRS] to declare that the L.R.C. was "an independent agency of state government . . . which is exempt from control by the executive branch and from reorganization by the Governor."83 It enacted a series of statutes that, inter alia, empowered the L.R.C. to veto administrative regulations issued by the Governor,84 to nominate persons to the Governor for appointment to certain executive agencies,85 to approve gubernatorial application for federal block grants,86 to determine and/or review

the Speaker Pro Tempore of the House of Representatives, the majority and minority floor leaders of the Senate and the House of Representatives, the majority and minority party whips of the Senate and the House of Representatives, and the majority and minority caucus chairs of the Senate and House of Representatives. KY. Rev. Stat. Ann. §7.090(1) (Bobbs-Merrill 1980) [hereinafter cited as KRS].

80 See text accompanying notes 113-17 infra for a discussion of the Kenton Amendment.

81 See "Brown to Battle Huddleston in Senate Race," The Courier-Journal (Louisville), Mar. 16, 1984, at A1, col. 3 (Metro ed.).

82 See Consumer Energy Council v. Federal Regulatory Comm'n, 673 F.2d 425 (D.C. Cir. 1982), aff'd, 103 S.Ct. 3556 (1983); Enourato v. New Jersey Bldg. Auth., 448 A.2d 449 (N.J. 1982); General Assembly v. Byrne, 448 A.2d 438 (N.J. 1982).

83 See KRS §7.090(1) (1982); notes 99-123 infra and accompanying text.

84 See notes 278-80 infra and accompanying text.

85 See notes 223-26 infra and accompanying text.

86 See note 339 infra and accompanying text.

24 certain reductions in the state budget,87 and to approve or disallow gubernatorial orders reorganizing the executive branch.88 Further, the General Assembly empowered the Speaker of the House and the President Pro Tempore of the Senate to make appointments to certain boards and agencies of the executive department89 and seemed to empower itself to enact laws during organizational sessions.90

Perhaps chastened by the results of his abdication of power in the name of legislative independence, Governor Brown vetoed several of these statutes,91 only to have each of his vetoes overridden by the General Assembly.92 Shortly thereafter, the L.R.C. filed suit for a declaratory judgment on the constitutionality of each of these statutes.93 Governor Brown and Attorney General Steven L. Beshear counterclaimed to insure that every questionable statute was impleaded.94

In their counterclaim, Governor Brown and Attorney General Beshear did not invoke the Adjournment Clause or sections 249 or 28 of the Kentucky Constitution to seek a decree abolishing the L.R.C. or its staff.95 The Court therefore did not reach the issue of whether the L.R.C. could constitutionally exist. However, Brown and Beshear did contest the constitutionality of KRS section 7.090(1), which declared that the L.R.C. was "an independent agency of state government," asserting that this statute was tantamount to declaring either that the General Assembly could sit in continuous session via the L.R.C., or that L.R.C. was an unauthorized fourth branch of government.96 Brown and Beshear conceded arguendo that the L.R.C. is a legislative agency and argued only that

87 See notes 324-34 infra and accompanying text.

88 See note 352 infra and accompanying text.

89 See note 224 infra.

90 See notes110,117 infra.

91 See "Leaders want changes in 2 bills to avoid veto, make peace with Brown," The Courier- Journal (Louisville), Apr. 13, 1982, at A1, col. 1 (Metro ed.).

92 See "A contentious House overrides seven vetoes and ignores another," The Courier-Journal (Louisville), Apr. 14, 1982, at A1, col. 5 (Metro ed.).

93 See 664 S.W.2d at 909; Brief for Appellees at 13, L.R.C. v. Brown, 664 S.W.2d 907 (Ky. 1984) [hereinafter cited as Brief for Appellees].

94 See Brief for Appellees, supra note 93, at 13.

95 See Reply Brief for Appellants at 7, L.R.C. v. Brown, 664 S.W.2d 907 (Ky. 1984) [hereinafter cited as Reply Brief for Appellants].

96 See 664 S.W.2d at 910.

25 it must be limited to its historic fact-finding functions.97 The Court agreed with Brown and Beshear, stating forcefully: "There is, simply put, no fourth branch of government."98

2. There is No Fourth Branch of Government

The effort of Brown and Beshear to circumscribe the role of the L.R.C. rested primarily on the sixty-day limit on legislative sessions.99 Their argument pointed to the dominant purpose of the framers of the present Kentucky Constitution – to limit the power of the General Assembly.100

The sixty-day limit on biennial sessions was the most significant restriction placed on the General Assembly by the Constitutional Convention. Under Kentucky's first two constitutions, the General Assembly met in annual sessions without restrictions as to length.101 Under the Constitution of 1850 the legislature met biannually for sixty-day sessions, but was empowered to extend the length of its session by "a vote of two-thirds of all the members elected to each house,"102 an action often taken by the legislature.103

97 See Brief for Appellees, supra note 93, at 26-36. Ironically, the L.R.C.'s Petition for Rehearing asked the Court to address the §249 issue and overrule Shanks v. Julian. Id. at 35. The Court ignored this entreaty.

98 664 S.W.2d at 917.

99 See KY. Const. §42. Their tacit concessions to the existence of the L.R.C. and the role of the interim committees implicitly recognized the impact of the Kenton Amendment, although for strategic reasons this was never expressly admitted.

100 See Brief for Appellees, supra note 93, at 26-36. See also text accompanying notes 1-60 supra for a discussion of the Constitutional Convention of 1890-1891. A contemporaneous decision of the Kentucky Court of Appeals said:

It is a matter of history that the object which, above all others, was sought to be attained by the adoption of the new constitution, was the placing of a check upon the power of the legislative branch. No one can compare that instrument with its predecessors without being struck by the almost countless restraints which are placed upon that power, and the safeguards provided against legislative usurpation. This central idea gives color and tone to the entire organic law. . . When that instrument was before the people for adoption, there was debate and discussion over its provisions in the press and on the stump. . . . Practically the whole membership of the convention went upon the platform in its defense, and, while they differed in their estimates of its advantages, the burden of each argument was still that it was a shield to the citizen against legislative usurpation, encroachment, and abuse.

Pratt v. Breckinridge, 65 S.W. 136, 142 (Ky. 1901).

101 See KY. Const. of 1799, art. II, §17; KY. Const. of 1792, art. II, §24.

102 See KY. Const. of 1850, art. II, §24.

103 See Defendant's Exhibit No. 4, Legislative Research Comm'n, Constitution of the Commonwealth of Kentucky Bicentennial Edition, Information Bulletin; No. 112, p. ix, L.R.C v. Brown, 664 S.W.2d 907 (Ky. 1984).

26 Thus, under prior constitutions, the legislature had the power to hold continuous sessions.

However, the framers of the present Constitution took that power away from the General Assembly and, for the first time in the history of Kentucky, put an absolute limit on the number of days that the legislature could sit.104 They also eliminated the General Assembly's implicit right to determine the agenda for special sessions by expressly giving that right to the Governor, whose power to convene such sessions was renewed.105 Thus, the concept of the General Assembly as a body sitting in continuous session was abolished by the framers of the Constitution in 1891.

This restriction has survived numerous attempts to delete or modify it. In modern times the General Assembly has thrice attempted to amend the Constitution to enable it once again to become "a continuous body," but each proposed amendment was defeated by the people. The Constitution proposed by the Constitution Revision Assembly in 1966 (and likewise rejected by the people) would have made the General Assembly "a continuous body."106 In 1969, the legislative article of the Constitution Revision Assembly's draft, which also would have made the General Assembly "a continuing body," was submitted to the people as a separate amendment and was defeated.107 In 1972, the General Assembly proposed the so-called annual sessions amendment which omitted any reference to the General Assembly as being a continuous body, but in 1973 it too was defeated.108

When the Kenton Amendment passed, it had omitted the phrase making the General Assembly ''a continuing body,'' as well as the provision for annual sessions. The Kenton Amendment provided only for the limited organizational session described in section 36 of the Kentucky Constitution, during which the General Assembly clearly cannot enact legislation.109

The constitutional issue upon which many of the statutes were contested in L.R.C. v. Brown was what (if any) legislative power may an interim legislative committee (specifically the L.R.C.) exercise after expiration of the sixty-day limit on legislative sessions.110 The concern arises because "the legislative body ceases to exist on the moment of its adjournment."111

104 See KY. Const. §42.

105 See KY. Const. §80.

106 See Act of Mar. 18, 1966, ch. 37, 1966 Ky. Acts 295-347.

107 See Act of Mar. 27, 1968, ch. 201, 1968 Ky. Acts 825-26.

108 See Act of Mar. 30, 1972, ch. 375, 1972 Ky. Acts 1640-41.

109 See Kenton Amendment, ch. 440, 1978 Ky. Acts 1400-01.

110 L.R.C. v. Brown, 664 S.W.2d at 907, 914-16. Some 1982 statutes premised on the Kenton Amendment seemed to confer power upon the General Assembly to enact laws during an organizational session convened in off-numbered years pursuant to KY. Const. §36, including the power to enact a law invalidating any administrative regulation promulgated since the last regular session of the General Assembly. See Act of Apr. 12, 1982, ch. 443, §§11, 12, 13(3), 14, 15,

27 This issue has been previously litigated in various states when legislative councils, interim committees and other analogues to Kentucky's L.R.C. were formed. In every reported decision, the state appellate courts limited these interim legislative bodies to a fact-finding and oversight role. The courts invalidated attempts by interim committees to exercise the lawmaking power by asserting that their acts have the force of law, or to exercise executive powers by becoming involved in the administration of state government.112

16(3), 16 (5), 17 (codified at KRS §6A.090, .100, .110(3), .120, .130, .140(3), .140(3), .140(5), .150). However, by the plain language of KY. Const. §36, the General Assembly, when convened in organizational session during odd-numbered years, has only the power "of electing legislative leaders, adopting rules of procedure and the organizing of committees." The purported exercise of any other power by the General Assembly, when convened pursuant to KY. Const. §36, is invalid. L.R.C. v. Brown, 664 S.W.2d 907 (Ky. 1984) Trial Court Opinion and Judgment at 18. Accordingly, the trial court held the foregoing 1982 statutes giving the legislature lawmaking powers during the organizational session void pursuant to KY. Const. §26:

The provisions of [certain statutes], insofar as they imply that the General Assembly, when convened in organizational session, pursuant to Section 36, Ky. Const., may enact statutes or otherwise give force of law to its enactment when so convened, are void and unenforceable. ld. at 21 (emphasis supplied).

On appeal, the L.R.C. acquiesced in this holding. Brief for Appellants at 20, L.R.C. v. Brown, 664 S.W.2d 907 (Ky. 1984) [hereinafter cited as Brief for Appellants]. Cf. Trenton Graded School Dist. v. Board of Educ. of Todd County, 129 S.W.2d 143 (Ky. 1939); Stickler v. Higgins, 106 S.W.2d 1008 (Ky. 1937); Richmond v. Lay, 87 S.W.2d 134 (Ky. 1935); Royster v. Brock, 79 S.W.2d 707 (Ky. 1935) (cases relating to limited lawmaking power during special legislative sessions).

111 664 S.W.2d at 915 (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)).

112 See In re Opinion of the Justices, 19 So.2d 10 (Ala. 1947); Jewett v. Williams, 369 P.2d 590 (Idaho 1962); State ex rel. Jones v. Atterbury, 300 S.W.2d 806 (Mo. 1957); State ex rel. Judge v. Legislative Fin. Comm., 543 P.2d 1317 (Mont. 1975); General Assembly v. Byrne, 448 A.2d 438 (N.J. 1982); Advisory Opinion in re Separation of Powers, 295 S.E.2d 589 (N.C. 1982); State ex rel. McLeod v. Mcinnis, 295 S.E.2d 633 (S.C. 1982); State ex rel. Robinson v. Fluent, 191 P .2d 241 (Wash.), cert. denied sub nom Washington Pension Union v. Washington, 335 U.S. 844 (1948); State ex rel. Hamblen v. Yelle, 185 P.2d 723 (Wash. 1947).

The cases from Montana provide an excellent example of the evolution of this area of the law. The Montana Supreme Court initially invalidated its Legislative Council, holding in State ex rel. Mitchell v. Holmes, 274 P.2d 611 (Mont. 1954), that the Montana constitutional provision limiting the legislature to sessions of 60-days' duration prohibited the exercise of any legislative power, including fact-finding and oversight functions, after adjournment. This decision was overruled in State ex rel. James v. Aronson, 314 P.2d 849 (Mont. 1957), in which the court upheld the existence of the Legislative Council, emphasizing that it could do nothing more than engage in fact-finding. When the Montana legislature later enacted a law giving an interim committee a role in administering the state budget between sessions, that statute was invalidated in State ex rel. Judge v. Legislative Fin. Comm., 543 P.2d 1317 (Mont. 1975).

28 In L.R.C. v. Brown, the legislature contended that the constitutional basis for Kentucky's interim committee system is the "Kenton Amendment,"113 arguing that it conferred upon the L.R.C. and its interim committees the power to act legislatively between legislative sessions.114 Had the Court held that interim committees may exercise the lawmaking power, the General Assembly would have become a continuous body composed of the Senate and House of Representatives for sixty days and the L.R.C. for the remainder of the biennium.115

The Court recognized that the Kenton Amendment merely provides that the General Assembly may convene in odd-numbered years "for the purposes of electing legislative leaders, adopting rules of procedure and the organizing of committees."116 The Kenton Amendment does not empower those committees to legislate in the interims between sessions.117

The power of a legislature is the power to make laws, although necessary incidents to the lawmaking power are the fact­finding function and the informing function. The classic

113 Act of Mar. 31, 1978, ch. 440, 1978 Ky. Acts 1400-01 (codified at KY. Const. §§30a, 31a, 36a, 42a, 256). 114 Brief for Appellees, supra note 93, at 33.

115 Id. at 34.

116 See KY. Const. §36.

117 The wording of the Kenton Amendment must be contrasted with the wording of the "annual sessions amendment" that was defeated three times in the decade preceding adoption of the Kenton Amendment. The defeated amendment would have reverted to the language of pre-1891 constitutions and declared the General Assembly to be "a continuing body." Those words were deleted from the Kenton Amendment, leaving an historical gloss refuting the L.R.C.'s contention that the Kenton Amendment was intended to give interim committees lawmaking powers. See notes 106-09 supra and accompanying text.

A similar case arose when Alabama amended its constitution in 1947 to add an organizational session. Pursuant to that amendment, which is identical to Kentucky's Kenton Amendment, the Alabama legislature created interim committees. Suit was brought contending that these committees violated the prohibition against the legislative action after adjournment of either an organizational or regular session. The Alabama Supreme Court held:

An interim committee does not legislate, it merely makes inquiry and obtains data so that it may properly report to the regular session, their findings. This, in our opinion, is not doing business within the meaning of the constitutional provision above noted, but is merely in preparation to that end when the Legislature reconvenes in its regular session.

In re Opinion of the Justices, 29 So.2d at 13.

The L.R.C. erroneously cited this Alabama opinion for the proposition that, even absent the Kenton Amendment, the inherent powers of the General Assembly would enable it to confer upon the L.R.C. those powers conferred by the challenged 1982 statutes. See Brief for Appellants, supra note 110, at 26. That is obviously a misreading of the Alabama case which involved implementation of an organizational sessions amendment identical to the Kenton Amendment and not the exercise of any inherent legislative power. See ALA. Const. §1901.

29 description of "legislative oversight" combines both the fact-finding function and the informing function of the legislative body. Legislators often exercise their fact-finding function through statutory interim committees which investigate the actions of the executive or judicial branches. They may exercise their informing function by exposing the results of their investigation to public scrutiny and debate. Through this process of ventilating issues, the executive branch may alter what it is doing. Alternatively, the next session of the General Assembly may exercise its law­making power to correct what it perceives as incorrect. Thus, there is a clear distinction between "oversight" in the interim and "lawmaking" in the interim.118

Under section 42 of the Kentucky Constitution, Kentucky legislators may not exercise the lawmaking power after expiration of the sixty-day period for legislative sessions. Upon adjournment, Kentucky legislators may exercise only fact-finding and informing functions, which together constitute "oversight," not "lawmaking." The constitutional infirmity of the statutes invalidated in L.R.C. v. Brown was their attempt to empower the L.R.C. to go beyond oversight and exercise the lawmaking power after the constitutional limit of sixty days. The Court refused to permit the L.R.C. to be transformed into a fourth branch of government and to conduct annual sessions through the back door:

It is patently clear that the LRC as it currently exists, and as it has existed since 1974, is as appellants concede, an "arm" of the General Assembly. It is beyond cavil that the primary role, if not the exclusive role, of the LRC has been historically that of a research, fact-finding, secretariat and general support agency for the General Assembly . . . The legislative power lies solely within the province of the General Assembly and its entire, publicly elected membership. Our constitution makes that clear. Ky. Const. Sec. 29 states, "[T]he legislative power shall be vested in a House of Representatives and a Senate, which, together shall be styled the 'General Assembly of the Commonwealth of Kentucky'[sic]." Whatever else the LRC may constitutionally do, it may not legislate. . . . . Two major legal questions dominate this area: (1) can the General Assembly delegate its authority to legislate to the LRC and (2) can the General Assembly legislate through its agent, the LRC, while the General Assembly is in adjournment? The answers to these legal questions are inextricably intertwined and relate to the nature and role of the LRC.

KRS 7.090(1) declares that the LRC is an "independent" agency of state government. This does not comport with our previous analysis of the nature of the LRC, nor does it comport with our constitution which recognizes only three branches of government.

There is, simply put, no fourth branch of government. The LRC was created by, is controlled by, and is a service type agency of the General Assembly. It is independent of the Governor; it is not subject to reorganization by the Governor, it is subject to the control of its creator, the General Assembly. It is an "oversight" and service organization for and on behalf of the General Assembly. As such, it is a part, albeit an

118 See generally 664 S.W.2d at 915-17.

30 important part, of the General Assembly, the legislative branch of government. It is part of the General Assembly by reason of its statutory birth and its statutory nourishing. We therefore, conclude that KRS 7.090(1), which declares the LRC to be an independent agency of state government is constitutionally invalid.119

In sum, the Court placed its imprimatur upon the ''play in the joints" which the executive and legislative departments had long permitted by acquiescence. Relying sub silentio upon the Kenton Amendment to disregard Shanks v. Julian,120 the Court permitted the L.R.C. to exist as an agency of the legislative department and to engage in the service and fact-finding functions inherent in its support role.121 Upholding the statute which exempts the L.R.C. from reorganization by the Governor122 was simply a reiteration of the holding in Brown v. Barkley123 that the Governor has no inherent power to reorganize government and has only the reorganization powers conferred by statute. Thus, while the L.R.C. is an agency controlled by the legislature, its powers have been properly limited to lending administrative support to legislators.

C. Palmore's Prelude Opinions

L.R.C. v. Brown was the third chapter in a separation of powers trilogy decided by the Kentucky Supreme Court during the Brown administration. The first two opinions, both written by then Chief Justice John S. Palmore, were Ex parte Auditor of Public Accounts124 and Brown v. Barkley.125 These opinions are important to understanding L.R.C. v. Brown, not only because they were decided in chronological proximity to it, but also because they obviously encouraged members of (and attorneys for) the General Assembly to believe that the legislation they enacted in 1982 would be upheld by the Palmore Court.126

1. Ex parte Auditor of Public Accounts

The precise issue in Ex parte Auditor of Public Accounts was whether the elected Auditor of Public Accounts could audit the books and records of the Kentucky Bar

119 Id. at 911, 914, 916-17 (emphasis both in original and added) (footnotes omitted).

120 280 S.W. 1081 (Ky. 1926). See text accompanying notes 68-70 supra for a discussion of the case.

121 See 664 S.W.2d at 917. See notes 285-91 infra and accompanying text for a discussion of the legality of interim committees in conjunction with a discussion of the Adjournment Clause.

122 See 664 S.W.2d at 917.

123 628 S.W.2d 616 (Ky. 1982).

124 609 S.W.2d 682 (Ky. 1980).

125 628 S.W.2d 616.

126 See notes 192-205 infra and accompanying text.

31 Association (KBA).127 Kentucky has an integrated bar, so all practicing attorneys must pay dues to the KBA. The Auditor argued that these dues are therefore in the nature of occupational license taxes exacted by the Court through the Association, making them public funds.128 The Auditor contended that he had the constitutional and statutory right and obligation to audit these allegedly public funds.129

The Court held that the Auditor may audit any general fund monies appropriated to the judiciary by the legislature, but may not audit those revenues, including bar association dues, raised independently by the Court of Justice.130 The Court reasoned that the language of the 1975 constitutional amendment known as the Judicial Article vested plenary control of the Court of Justice and the bar association in the Supreme Court.131

Instead of deciding the precise issue presented, the Court seized the opportunity to sound a clarion call asserting its own independence from the other two branches of government, particularly its fiscal independence from the Governor.132 In so doing, the Court wrote an essay on the separation of powers133 which served as a prelude to L.R.C. v. Brown.134 It also discussed the powers of lesser Executive Officers135 in a fashion which served as a prelude to Brown v. Barkley,136 and analyzed the Court's power over its own budget137 in a manner repeated in L.R.C. v. Brown.138

127 609 S.W.2d at 682.

128 Id. at 683-84.

129 The Auditor had filed the case directly with the Kentucky Supreme Court. The Court held that there was an actual case or controversy, so its opinion was not advisory, and that, since the Court was a disputant, no lower court had jurisdiction. Id. at 683.

130 See id.

131 See id. at 684.

132 See id. at 686. The Court asserted:

What we have in this case . . . are funds that have not been collected pursuant to any statute and have not been appropriated by the legislative body and are not subject to legislative appropriation. Both the Association and the Board of Bar Examiners exist solely by virtue of rules of this Court expressly and exclusively authorized by Const. Sec. 116. There is no constitutional authority by which they can be made accountable to either of the other two branches of government except for their stewardship of such funds or property as may come into their possession through [appropriations from the General Assembly].

Id.

133 See id. at 684-85.

134 664 S.W.2d at 911-14.

135 See 609 S.W.2d at 686-87.

136 628 S.W.2d at 621-22.

137 See 609 S.W.2d at 685.

32 In its discussion of the separation of powers, the Court emphasized the clarity of Kentucky's constitutional separation of powers provisions.139 However, the Court then proceeded to denigrate the power of the Governor in language that cropped up in both Brown v. Barkley and L.R.C. v. Brown:

Sections 69-108 . . . provide for the executive branch of government and delegate certain specific and exclusive powers to its officers. Any further powers this branch of government may possess – that is, beyond those expressly delegated or necessarily implied by the Constitution itself – must be conferred upon it by the legislative branch, which has all governmental authority not delegated elsewhere and not prohibited by the Constitution.140

In a prelude to its holding in Brown v. Barkley that the lesser Executive Officers have only those powers delegated to them by the legislature,141 the Court also denigrated the power of the Auditor of Public Accounts.142

138 See 664 S.W.2d at 926-28.

139 See 609 S.W.2d at 684-85. The Court said:

[T]he Constitution . . . divide[s] all governmental authority among "three distinct departments, and each of them to be confined to a separate body of magistracy . . . ." Const. Sec. 27. This distribution of authority concludes with an unusually forceful command: "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 expresssly[sic] directed or permitted." Const. Sec. 28.

Id. (emphasis added). Governor Brown quoted a portion of this language in his brief in L.R.C. v. Brown. See Brief for Appellees, supra note 93, at 16.

140 609 S.W.2d at 685 (emphasis added). See notes 195-205 infra and accompanying text.

141 See 628 S.W.2d at 624.

142 See 609 S.W.2d at 686-87. The Court said:

As we have previously demonstrated, the duties and responsibilities of the Auditor are those and only those legally prescribed by the legislature. Consequently, he has no inherent powers. For example, prior to the effective date of the Governmental Reorganization Act of 1936, KS 4618-68 et seq., the Auditor served only as the bookkeeper for the state. KS 4618-137 et seq. He had no authority or duty to conduct post or performance audits. These were the function of the State Inspector and Examiner. KS 1992b-59. The effect of the reorganization act was to transfer the duties of Auditor to the Department of Finance, to transfer the duties of the State Inspector and Examiner to the Auditor, and to abolish the office of State Inspector and Examiner. A clearer history of subjugation to the legislature cannot be found.

Id. at 687.

33 Finally, the Court seemed to go out of its way in Ex parte Auditor to assert its own control over the judicial budget. The Court of Justice, like all other arms of state government, was suffering from the revenue shortfall during Governor Brown's tenure. The Court used this case to set forth as constitutional dictum its view that the Chief Justice, not the Governor, controls the judicial budget.143

In sum, Ex parte Auditor was the antithesis of judicial restraint. It resolved a rather narrow issue with so broad a brush that the opinion unnecessarily opened several new constitutional issues, one of which would soon be resolved in Brown v. Barkley.

2. Brown v. Barkley

If hard cases make bad law, then unnecessary cases make even worse law. Brown v. Barkley should never have been litigated and, not surprisingly, sowed the seeds of bad law. Fortunately, however, the bad law was never harvested because the Court overruled Brown v. Barkley's troublesome dicta, albeit sub silentio, in L.R.C. v. Brown.144

Brown v. Barkley raised the chicken-and-egg questions inherent in statutes which permit Governors to reorganize the governmental structure previously created by the legislature. Since the United States Congress enacted the first executive reorganization act,145 commentators have disagreed whether such statutes are constitutional. One viewpoint is "that government is organized by statute and the power to reorganize government, being the power to amend those statutes, is a lawmaking power which cannot constitutionally be delegated to the chief executive.146 Another viewpoint is that the chief executive has inherent power to reorganize executive agencies subservient to him and, therefore, that it is unconstitutional to permit the legislative branch to

143 See id. at 685. The Court stated:

[W]hereas the Governor's authority with regard to the presentation of a biennial budget to the General Assembly is purely statutory . . . the authority of the Chief Justice to submit the budget for the Court of Justice comes directly and expressly from the Constitution itself. Const. Sec. 110(5)(b). Hence that function can be neither assumed by nor delegated to the executive branch. . . . .

The purpose and significance of the judicial budget is that it provides a means by which the legislative body may assess how much it must appropriate from the treasury for the operation of the judicial system. Once it has made that appropriation, the authority for and responsibility of determining the necessity for and the propriety of expenditures from that source rest exclusively with the judicial branch itself, and are not subject to executive or legislative regulation.

Id. (footnote omitted).

144 See notes 192-205 infra and accompanying text.

145 See Reorganization Act of 1932, ch. 314, §§401-408, 47 Stat. 413 (repealed 1966).

146 See Note, "Administrative Law – Delegation of Legislative Power to President Under National Industrial Recovery Act," 12 N.C. L. Rev. 44, 44-45 (1933-34).

34 retroactively veto such a reorganization by joint resolution.147 A third compromise view is that the chief executive has no inherent reorganization power, but may "faithfully execute" a law delegating that power to him.148 At the federal level, the two branches of government have seen fit to avoid litigating these issues. Congress has permitted the President to effectuate reorganizations, and the President has permitted Congress by joint resolution to veto those reorganizations of which it disapproved.149

A similar rapprochement existed in Kentucky until the Brown Administration. Kentucky's first reorganization act was enacted in 1936 during the administration of Governor A.B. Chandler.150 The statute was unusually sweeping in its scope, permitting, for example, the abolition of agencies.151 Because the legislature was limited to biennial, sixty-day sessions, this statute gave the Governor virtually unlimited power to reshape state government. Only when the legislature reconvened biennially could it veto a Governor's reorganization of state government. Because the re­organization had become the status quo by that time, it was virtually impossible politically to unscramble the eggs.

The event that led to the litigation in Brown v. Barkley was Governor Brown's attempt to reorganize the Department of Agriculture, a department headed by an elected constitutional officer. The threshold issue in the case was whether KRS section 12.025(1)152 authorized the Governor to undertake such an action.153

When enacted in 1960, KRS section 12.020 divided state agencies into three categories: "Constitutional Administrative Departments" headed by an elected constitutional officer, "Statutory Administrative Departments" reporting to the Governor and "Independent Agencies."154 The Court stated that, when enacted in 1960, the Governor's power to reorganize state agencies under KRS section 12.025(1) did not extend "to those departments, including Agriculture, that were classified in KRS 12.020 as 'constitutional' rather than 'statutory.'"155 The Court observed that, as enacted in 1960, the

147 Cf. Nathanson, "Separation of Powers and Administrative Law: Delegation, the Legislative Veto, and the 'Independent' Agencies," 75 N.W. U. L. Rev. 1064 (1981) (discussing Congressional limitations on the presidential removal power).

148 See Note, supra note 146, at 46.

149 See Nathanson, supra note 147, at 1089. But see E.E.O.C. v. Hernando Bank, Inc., 724 F.2d 1188, 1190 (5th Cir. 1984) (invalidating legislative veto while upholding remainder of Reorganization Act of 1977, 5 U.S.C. §§901-912 (1982)).

150 See Government Reorganization Act of 1936, Carroll's KY. Stat. Ann. KRS §§4618-68 to -169 (Baldwin 1936).

151 See, e.g., KRS §§4618-150, -154, -163.

152 KRS §12.025 repealed by Acts of 1982, ch. 447, §23, effective Jan. 1, 1984, states in pertinent part: "[T]he governor may . . . (1) [e]stablish, abolish or alter the organization of any agency or statutory administrative department. . . ."

153 Brown v. Barkley, 628 S.W.2d at 619.

154 Id.

155 See id.

35 reorganization powers contained6 in KRS section 12.025(1) referred only to "statutory administrative departments" and not to "constitutional administrative departments."156

Over the next twenty years the reorganization statute was amended several times, with resulting changes in the names of the categories of departments.157 However, the 1980 General Assembly added a proviso to KRS section 12.020, which the Court construed to say that the Governor could not, ''under KRS 12.025, transfer functions, funds, personnel, etc.," from an administrative body headed by a "constitutionally elected officer.''158 Governor Brown argued that Agriculture was a statutory administrative department and, hence, within the scope of his reorganization powers.159 The Court agreed that Agriculture and every other executive department were statutory in the sense of being created by statute.160 However, the Court held that the General Assembly had not intended in 1960 to classify departments headed by elected constitutional officers as statutory departments for the purposes of the reorganization act and that the 1980 proviso reaffirmed this intent.161

The case should have ended on this issue of statutory interpretation. However, the Court was obliged to consider Governor Brown's argument that the power to reorganize the executive branch of government was an inherent executive power which could not be limited by the General Assembly.162 He argued that despite contrary legislation by the General Assembly, "the supreme executive power'' conferred upon the Governor by section 69 of the Kentucky Constitution permitted him to reorganize departments headed by lesser Executive Officers.163 In making this contention, the Governor ignored the homily that certain aspects of our constitutional system of government depend upon compromise and are too fragile to be litigated to their logical conclusions. When the Governor asserted an unbridled constitutional prerogative to abolish state agencies, he risked a holding by the Court that reorganization is a legislative power that can never be delegated to the Governor. Fortunately, the Court did not choose between extremes; it left the Governor those reorganization powers conferred upon the office by statute.164

In deciding whether the Governor has inherent power to reorganize the executive branch, or only has such reorganization powers as are statutorily conferred upon the office, the Court in Barkley reached the politically and constitutionally solomonic

156 Id.

157 Id. at 619-20.

158 Id. at 620.

159 Id.

160 See id. at 620 n.8.

161 See id. at 620.

162 Id. at 622.

163 Id. at 620-22.

164 See id. at 623.

36 conclusion that, while the power to reorganize government is executive in nature, it exists only to the extent created by statute.165 Since the General Assembly has already organized the government, the Governor cannot displace that organization without enabling legislation.166

In reaching this conclusion, however, the Court made several statements of constitutional law that were so unnecessarily sweeping in their scope that they inevitably led to the enactment of the 1982 statutes which produced the litigation in L.R.C. v. Brown.167 For example, in Brown v. Barkley, the Court embellished the analysis first mentioned in Ex parte Auditor of Public Accounts,168 that is, Executive Officers other than the Governor are geldings, having only those powers conferred upon them by the General Assembly.169 The Court further held that the General Assembly could diffuse

165 Despite the holding in Brown v. Barkley that reorganization is an executive power, the opinion in L.R.C. v. Brown refers to it as legislative in nature. See L.R.C. v. Brown, 664 S.W.2d at 930.

166 The Court stated:

Whether the Governor, in the exercise of his authority as the "supreme executive power of the Commonwealth" (Const. Sec. 69), can do the same thing in the absence of legislative authority is another matter. Though we are satisfied that the transfer of an existing, legislatively-created function from one executive agency or department to another is essentially an executive action . . . and is not an exercise of legislative power by the chief executive, we do not believe that the chief executive has the power to do it without legislative sanction unless it is necessary in order for him to carry out a law or laws that the legislature has created without prescribing in sufficient detail how they are to be executed.

. . . We do not doubt that if the General Assembly should pass a law that requires implementation, and appropriate funds for that purpose but omit specifying the manner in which it is to be carried out, the chief executive would be required to carry it out and have the right to choose the means by which to do it. That would not be so because of any implied or inherent power, however, but because it would be within the scope of authority and duty expressly conferred upon him by Const. Sec. 81.

In any event, whether the problem be largely semantic or otherwise, if it be postulated that the chief executive does possess implied or "inherent" powers, they would be subordinate to statute, as the inherent prerogatives of the Attorney-General were so held in Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942). This means, we think, that when the General Assembly has placed a function, power or duty in one place there is no authority in the Governor to move it elsewhere unless the General Assembly gives him that authority. And in this case, as we have indicated already, KRS 12.025 does not give him that authority. 628 S.W.2d at 622-23.

167 See notes 223-26 infra and accompanying text.

168 See 609 S.W.2d at 687.

169 The Court observed:

It is interesting to observe that in dealing with the General Assembly, and with the office of Governor the Constitution speaks in terms of "powers," but with

37 executive power among these elected Executive Officers and thereby weaken the Governor.170 The Court noted that once those functions are conferred by the legislature, the empowered Executive Officers may discharge them without any interference by the Governor.171 This question had never before been litigated in Kentucky and therefore constituted a considerable diminution of the power and influence previously possessed by the Governor. The Court's opinion appears to be constitutionally sound; the unsoundness of Brown v. Barkley inheres in Governor Brown's decision to litigate the issue.172

In addition to telling the General Assembly in unambiguous terms that it could diffuse the executive powers of the Governor among the various Executive Officers, the Court proceeded bluntly to denigrate the power of the Governor in words that appeared again and again in L.R.C. v. Brown:

regard to the Sec. 91 officers mentions only "duties" and "responsibilities." Except for the Attorney-General . . . and . . . Secretary of State . . . , the other officers named in Const. Sec. 91 have only such powers and responsibilities as are prescribed by statute.... 628 S.W.2d at 622.

170 The Court stated:

[T]hese independent executive offices provide convenient receptacles for the diffusion of executive power. As the Governor is the "supreme executive power," it is not possible for the General Assembly to create another executive officer or officers who will not be subject to that supremacy, but it definitely has the prerogative of withholding executive powers from him by assigning them to these constitutional officers who are not amenable to his supervision and control.

Id. (emphasis added).

171 The Court noted:

To round out this analysis of the respective powers and duties of the Governor, the General Assembly, and the officers established by Const. Sec. 91, we need to consider the relationship between the Governor and the Const. Sec. 91 officers. That the Const. Sec. 91 officers are to be elected by the people suggest that, whatever their duties, they are not answerable to the supervision of anyone else. This inference finds support in that provision of our Constitution (Sec. 78) which empowers the Governor to require information in writing from the officers of the executive branch upon any subject relating to the duties of their offices. Had the framers of the Constitution intended the Governor to have any further authority over these officers, Sec. 78 would have been unnecessary and, indeed, an anomaly.

Id. at 623 (emphasis in original).

172 The dilemma arises from the fact that KY. Const. §69 grants the Governor "supreme executive power" and therefore all other executive officers are "subject to that supremacy." See id. Thus, at what point would diffusion of executive power by the General Assembly under §91 violate §69 prerogatives? Cf. Rouse v. Johnson, 28 S.W.2d 745, 752 (Ky. 1930) (concluding that the Governor's power to fill executive vacancies under §152 was limited to vacancies in elective offices).

38 It is interesting as well as instructive to consider the constitutional contrast between the executive and judicial branches in their respective relationships to the legislative branch. Whereas the judicial branch must be and is largely independent of intrusion by the legislative branch, the executive branch exists principally to do its bidding.173

As fate would have it, the opinion in Brown v. Barkley was rendered on March 5, 1982, when the 1982 General Assembly was in session considering the bills that were later to be at issue in L.R.C. v. Brown.174 The dicta in Brown v. Barkley concerning the separation of governmental powers obviously encouraged the legislators to enact these bills.

The legislators' enthusiasm was further bolstered by a curious event which occurred after the Brown v. Barkley opinion was issued. The Court's original opinion contained the following statement:

The real power of the executive branch springs directly from the long periods between legislative sessions, during which interims the legislature is powerless to function and must, perforce, leave broad discretionary powers to the chief executive. It is ironic, but a historical fact of life, that in the past most chief executives have used this very power, given to them by the legislature, to influence the actions of individual legislators and thus exercise control over the legislative process itself.175

Legislative leaders proceeded immediately to interrogate the Chief Justice about this portion of the opinion when he appeared before the Appropriations and Revenue Committee on behalf of the judicial budget.176 Within a few days, the Court sua sponte modified the opinion by deleting the statement that the legislature is "powerless to function" in the interims and substituting the following sentence: "The real power of the executive branch springs directly from the long periods between legislative sessions, during which interims the legislature customarily has left broad discretionary powers to the chief executive."177 The Court's sua sponte modification of the Barkley opinion, together with its statements that ''the executive branch exists principally to do its [the legislature's] bidding"178 and that "the General Assembly has all the powers not denied to it or vested elsewhere by the Constitution,"179 understandably encouraged attorneys

173 628 S.W.2d at 623 (emphasis added).

174 See notes 223-26 infra.

175 See Brown v. Barkley, No. 81-SC-592-DG, slip op. at 13-14 (Ky. Mar. 5, 1982).

176 See The Courier-Journal (Louisville), Mar. 13, 1982, at E7, col. 1 (Metro ed.).

177 See 628 S.W.2d at 623 (emphasis added).

178 ld.

179 ld.

39 advising the legislature to assume the Palmore Court would uphold the 1982 statutes then being enacted.180

One primary reason why that prediction was not fulfilled is the dramatic change in composition of the Supreme Court between Brown v. Barkley and L.R.C. v. Brown. Thus, before analyzing the portions of the opinion in L.R.C. v. Brown which overrule sub silentio the aforementioned statements in Brown v. Barkley, it is important to discuss the historical happenstance of the Court's change in membership between the rendering of those two opinions.

3. Procedural Skirmishes in L.R.C. v. Brown: Old Court – New Court181

In November, 1982, while L.R.C. v. Brown was winding its way from the trial court to the Supreme Court, four of the seven seats on the Supreme Court changed hands, with three of them being won by Judges of the Court of Appeals.

Chief Justice Palmore and Justice Marvin J. Sternberg had announced their retirement and did not stand for re-election. The seat vacated by Chief Justice Palmore was won by Court of Appeals Judge William N. Gant. The seat vacated by Justice Sternberg was won by Jefferson Circuit Judge Charles M. Leibson. After Justice Robert O. Lukowsky died, Governor Brown appointed John J. O'Hara to the Court. O'Hara was defeated for election, however, by Judge Donald Wintersheimer of the Court of Appeals. Justice Boyce Clayton was also defeated by Court of Appeals Judge Roy Vance.

These changes in the Court's composition were significant in many respects. Chief Justice Palmore and Justice Lukowsky had intellectually dominated the Palmore Court, with dissenting opinions being a rare occurrence. Also, when the intermediate Kentucky Court of Appeals was created in 1975, the friction between it and the Palmore Court was instantaneous. The Kentucky Supreme Court promulgated rules that denigrated the Court of Appeals, such as requiring memoranda instead of briefs,182 preventing the Court from deciding for itself which of its opinions to publish,183 and preventing its judges from sitting in the districts from which they were elected.184 The Kentucky Supreme Court also published opinions expressing criticism of Court of Appeals opinions in uncharacteristically blunt language.185 Many Court watchers therefore predicted that, having chafed under the Palmore regime, the three justices arriving from the Court of Appeals would be reluctant to follow the former Chief Justice's excessive rhetoric in Brown v. Barkley.

180 For a discussion of the pertinent statutes, see notes 223-26 infra and accompanying text.

181 Cf. Arndt M. Stickles, The Critical Struggle in Kentucky, 1819-1829 (1929) (discussing a similar "old court-new court" controversy occurring in the early nineteenth century in Kentucky).

182 For a discussion of KY. R. App. P. 1.095 [hereinafter cited as RAP], see Martin, "Kentucky's New Court of Appeals," 41 KY. Bench & B. 8, 29 (April 1977).

183 See KRS §21A.070(19) (Baldwin 1984); KY. R. Civ. P. 76.28(4) [hereinafter cited as CR].

184 See KY. S. Ct. R. 1.030(7)(b) [hereinafter cited as SCR].

185 See, e.g., Robinson v. Murlin Phillips & MFA Ins. Co., 557 S.W.2d 202, 204 (Ky. 1977).

40 The change in the Court's composition, however, did not become effective until December, 1982. The delay produced a litigation stratagem by the L.R.C. which is an interesting historical footnote. The Kentucky Rules of Civil Procedure permit the appellant to bypass the Court of Appeals and move to transfer the case directly to the Supreme Court.186 As soon as the trial court entered its judgment, the L.R.C. made such a motion.187 Attempting to have its appeal heard by the Palmore Court, the L.R.C. also moved the Supreme Court to dispense with the requirement of additional briefs and to permit submission of the case on the briefs filed in the trial court. The only proceeding in the Supreme Court would have been an oral argument before the Palmore Court.188

The historical footnote is that this request was seriously considered by some members of the "old Court." There was even discussion of the old Court and new Court sitting en banc at oral argument and all eleven Justices joining in the decision, a stratagem that had no apparent purpose other than permitting Chief Justice Palmore to author the opinion of the Court after the expiration of his term.

Attorneys for the executive branch, seeking to avoid that result, filed a strongly worded response to the motion.189 After this response was filed, the Court immediately ruled that

186 See CR 76.18.

187 The judgment of the Franklin Circuit Court was entered Nov. 3, 1982.

188 The Motion to Transfer Appeal From The Court of Appeals to the Supreme Court was made Nov. 6, 1982. Paragraph 10 of the L.R.C.'s Motion to Transfer requested that the Supreme Court:

a) Dispense with the requirement of printed briefs required by the Rules and to accept the briefs filed in the Franklin Circuit Court as the briefs in this Court; b) Rule on this Motion without the necessity of a response to Respondents and to deem said Motion to be controverted; c) Advance the times for oral arguments, and all other hearings in this case; and d) Enter an Order transferring the Record directly from the Franklin Circuit Court to this honorable Court.

Motion to Transfer Appeal From The Court of Appeals to the Supreme Court of Kentucky at 4, L.R.C. v. Brown, 664 S.W.2d 907 (Ky. 1984).

189 The Response said, in part:

The decision this Court will be called upon to make may well serve as a blueprint for Kentucky's system of government for generations to come. That decision should not appear to those future generations to be flawed by having been made with undue haste.

. . . [W]ith the impending change in the composition of this Court, LRC's motion presents a serious issue of judicial administration. Even if this Court were to so expedite this case that briefing time was curtailed and oral arguments were heard in early December, preparation of a reasoned opinion adequately explaining this Court's decision to the public would prevent the parties' petitions for rehearing from being determined by the Court as presently constituted. Whether the new Court deferred to its predecessor by denying rehearing, or granted the rehearing, the circumstances would present the unseemly inference that the result in this

41 the request to dispense with briefs would be denied and the case would proceed under ordinary procedural rules.190 Thus, the case was argued to and decided by the new Court.191

4. The Sub-Silentio Overruling of Brown v. Barkley Dicta in L.R.C. v. Brown

Despite the language of section 28 of the Kentucky Constitution directing that each branch may exercise only its own powers and may not exercise the powers of another branch, except as expressly permitted by the Constitution, the legislature argued in L.R.C. v. Brown that the General Assembly may exercise all governmental powers (whether legislative, executive or judicial) not expressly reposed in some other body.192

most important case could depend more upon the identity of the Justices than upon neutral principles of law. That appearance should be avoided in every case, but it should especially be avoided in a case having the political ramifications that are inherent in this appeal. The only way for the Court to avoid such an inference is for the Court to handle this case according to the Rules applicable to other cases.

Response by Respondents to Movant's "Motion to Transfer Appeal From Court of Appeals to Supreme Court" Filed November 5, And to Advance the Case, Dispense with Briefs in This Court, Etcetera at 3-4, L.R.C. v. Brown, 664 S.W.2d 907 (Ky. 1984).

190 Order Granting Transfer, Establishing Briefing Requirements and Scheduling Oral Arguments, Nov. 15, 1982, C.J. Stephens, L.R.C. v. Brown, 664 S.W.2d 907 (Ky. 1984).

191 The last significant act of the Palmore Court was to choose Palmore's successor. Interestingly, it was the new Chief Justice, Robert F. Stephens, who authored L.R.C. v. Brown.

192 See Brief for Appellants, supra note 110, at 16-17. In its Brief, the L.R.C. asserted "that the legislature possesses all powers and authority to act which are not specifically denied it by the Constitution and has the authority to act in exercising those powers." Id. at 17 (citing Brown v. Barkley, 628 S.W.2d 616 (Ky. 1980); Duke v. Boyd County, 7 S.W.2d 839 (Ky. 1928); McCreary v. Fields, 147 S.W. 901 (Ky. 1912); Bullitt v. Sturgeon, 105 S.W. 468 (Ky. 1907)).

The testimony of the principal sponsors of the statutes contested in this litigation, especially the testimony of former Speaker Pro Tempore Thomason, clearly evidenced this misinterpretation of the Constitution:

A. (Mr. Thomason): I don't think there is a constitutional provision that specifically relates to the Legislature. I think it's the absence of a constitutianal[sic] provision that allows the Legislature to create the Legislative Research Commission, because all other powers ... reside in the Legislature that are not specifically granted to the Executive or Judicial Branch. Q. 13 (Mr. Combs): Would you agree that the Legislature only has legislative function? A. Under the Consitition[sic] as interpreted recently in the Brown versus Barkley decision, I would say that the Legislature has all functions that are not specifically granted to the Governor or that are not specifically granted to the Judicial Branch. All other powers are inherent in the Legislature. Whether you term them legislative functions or whatever they're still in the Legislature.

Trial Record at 125-26, L.R.C. v. Brown, 664 S.W.2d 907 (Ky. 1984). These legislators obviously read Brown v. Barkley literally and based all the statutes contested in L.R.C. v. Brown upon the resulting misinterpretation of the Constitution.

42 The L.R.C. predicated its theory of constitutionality on the dictum in Brown v. Barkley that "[i]t is axiomatic that under our Constitution the General Assembly has all powers not denied to it or vested elsewhere by the Constitution."193

The L.R.C. asserted this statement meant that all governmental powers of whatever kind (executive, legislative or judicial) reside in the General Assembly except where a particular attribute of a power is specifically vested by the Constitution in another branch of government.194 The obvious fallacy in the L.R.C.'s contention was two-fold. First, sections 27 and 28 of the Kentucky Constitution respectively confine the General Assembly to exercising legislative power and deny it the right to exercise executive or judicial power. Second, all of the executive power and all of the judicial power are ''vested elsewhere by the Constitution"195: section 69 of the Constitution vests the "[s]upreme executive power in . . . the Governor" and section 109 of the Constitution vests ''the judicial power . . . exclusively in one Court of Justice.'' Thus, after considering the pertinent constitutional provisions, a literal reading of the excerpt from Barkley does not support the L.R.C.'s expansive interpretation of it.

The cases relied upon by the L.R.C. actually stand for the proposition that the General Assembly, in exercising its lawmaking power, may legislate on any subject in any manner except insofar as the Constitution restrains the lawmaking power.196 The L.R.C.'s interpretation of these cases had been rejected in Sibert v. Garrett.197 In Sibert, the General Assembly had enacted a statute arrogating the executive power of appointing members of an agency of the executive branch. The Court rejected the same argument which the L.R.C. would later extrapolate from Brown v. Barkley, saying:

[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, except in such instances as may be expressly or by necessary implication directed or permitted by the Constitution of the particular state. To adopt the latitudinous construction that the Legislature may do anything not expressly or impliedly prohibited by the Constitution would to our minds at once destroy the separation of the powers of government into the three great departments.198

In L.R.C. v. Brown, the Court had to reconcile Sibert and Barkley. Chief Justice Stephens deftly accomplished that task by reasserting the rationale of Sibert and

193 628 S.W.2d at 623 (emphasis added). Cf. Ex parte Auditor, 609 S.W.2d at 684.

194 See Brief for Appellants, supra note 110, at 16-17.

195 628 S.W.2d at 623.

196 See 628 S.W.2d 616; 147 S.W. 901; 105 S.W. 468; 7 S.W.2d 839. See also 664 S.W.2d at 913-14.

197 246 S.W. 455 (Ky. 1922).

198 Id. at 457.

43 overruling the obiter dictum in Barkley, while stating that nothing in Barkley could reasonably be read to contradict Sibert:

Appellants urge this court to adopt a so-called liberal construction of the separation of powers doctrine and argue that the General Assembly is the "dominant" branch of government. In support of this argument, they claim that in Brown v. Barkley, . . . we denigrated the power of the Governor and gave the General Assembly a dominant role in the tripod, by allegedly giving to the General Assembly all "residual" powers. We do not agree and we do not so interpret Barkley.

In Barkley, following a lengthy discussion of the inherent or implied powers of the Governor, we said:

The extent that the Governor has any implied or inherent powers in addition to those the Constitution expressly gives him, it seems clear that such unexpressed executive power is subservient to the overriding authority of the legislature. . . .

Practically speaking, except for those conferred upon him specifically by the Constitution, his powers like those of the executive officers created by Const. Sec. 91, are only what the General Assembly chooses to give him. . . .

These words, plus the following, are seized upon by appellants in their argument as proof that somehow, this Court has sawed off one of the legs of the tripod, viz., that of the executive, and that we have made that branch of government less than equal to the other two branches. Appellants remind us that we also said in Barkley:

It is axiomatic that under our Constitution the General Assembly has all powers not denied to it or vested elsewhere by the Constitution . . . . Whereas the judicial branch must be and is largely independent of intrusion by the legislative branch, the executive branch exists principally to do its [the legislature's] bidding . . . .

The inference appellants draw from this language is that the General Assembly possesses all powers and authority to act which are not specifically denied it by the Constitution and has the authority to act in exercising those powers. It is argued that all powers, residual in nature, belong to the legislative branch. We do not agree.

To place this interpretation on that language would be tantamount to saying that we were repealing Sections 27 and 28 of the Kentucky Constitution. We would in effect be eliminating the separation of powers doctrine. We would reach a result which would fly in the face of history and the legal precedents of this Commonwealth. Our review of that doctrine's history and our description of its language most assuredly confirm this. Nothing in Barkley can be construed to deny the existence of

44 the doctrine of separation of powers and the equality of the three coparceners in government. Implicit in Barkley is that the General Assembly as the legislative branch, has all powers which are solely and exclusively legislative in nature. To argue that any other power is given to the General Assembly simply won't wash. The power referred to in Barkley is legislative power and legislative power only.199

When the provisions of Kentucky's Constitution are considered together,200 it is clear that the legislative, executive and judicial powers are delegated exclusively to the legislative, executive and judicial branches, respectively. The sole exceptions to this rule are those instances in which the Constitution "expressly" provides otherwise.201 Accordingly, except in those instances where the Constitution expressly confers an executive or judicial power upon the General Assembly, it may exercise only legislative power.202

The other basis upon which the L.R.C. asserted the validity of the 1982 statutes was its contention that the Governor is but a conduit through which the legislature controls state government.203 This view rested on Palmore's statement in Brown v. Barkley that the Governor "exists principally to do its [the legislature's] bidding."204 But the notion that the Governor is merely an agent of the General Assembly was as erroneous as it was audacious. The Office of Governor exists to faithfully execute the laws enacted by the General Assembly.205 Thus, the executive branch is an agent of the law, not of the legislature.

199 664 S.W.2d at 913.

200 See KY. Const. §§27, 28, 29, 69, 109.

201 See KY. Const. §28. There are instances in which the Constitution expressly deviates from a pure separation of powers. For example, the judicial power to try impeachments is given to the Senate. See KY. Const. §67. That does not mean that governmental powers cannot be classified as intrinsically executive, legislative or judicial. It means only that the Constitutional Convention chose to allocate those particular functions to a particular branch. To make sure those would be the only deviations from the principle of separating powers, the framers included §28.

202 As stated by the Court in Pratt v. Breckinridge, 65 S.W. 136 (Ky. 1901):

From this it seems clear that the makers of the constitution intended the legislature to discuss and enact laws, and to do nothing else. . . .

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 [sic] 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.

Id. at 140 (emphasis added).

203 See 664 S.W.2d at 913.

204 See 628 S.W.2d at 623.

205 KY. Const. §81. See 664 S.W.2d at 919.

45 II. THE OPINION IN L.R.C. V. BROWN: "KENTUCKY'S MARBURY V. MADISON"

After Governor Brown's vetoes were overridden, the lawsuit was commenced on June 14, 1982, when the L.R.C. filed a petition for a declaration that the various statutes were enforceable.206 Governor Brown and Attorney General Beshear filed a counterclaim impleading additional statutes in order to ensure resolution of the entire controversy.207

The Court rejected the common description of the controversy as a power struggle between the executive and legislative branches. Instead the Court correctly analyzed the issue as whether the General Assembly could delegate to the L.R.C. certain powers to be exercised while the General Assembly is adjourned.208 The fundamental question presented in L.R.C. v. Brown related primarily to the constitutional role of the L.R.C. in state government and secondarily to the scope of the Governor's duty to faithfully execute the laws.

A. The Fundamental Constitutional Principles

The dispositive questions in L.R.C. v. Brown related pre­dominantly to two principles: (1) the separation of governmental powers mandated by sections 27 and 28 of the Kentucky Constitution and (2) the sixty-day limit on the General Assembly's biennial sessions and the constitutional requirement of bicameralism. Accordingly, before discussing the statutes which the Court invalidated, it is necessary to analyze these basic constitutional principles.

The provision expressly incorporating the doctrine of separation of governmental powers into Kentucky's Constitution was drafted by Thomas Jefferson,209 and composed the first

206 See Brief for Appellees, supra note 93, at 13; statutes cited infra notes 223-26 and accompanying text.

207 "In their pleadings, all parties admitted that there was a justiciable controversy presented as to each statute impleaded. A two-day evidentiary hearing was held before the Franklin Circuit Court . . . in which members of the legislature and members of the Governor's Cabinet testified regarding their understanding of the meaning and practical effect of the contested statutory provisions. Following that, all parties submitted detailed briefs, and oral arguments were heard. On November 3, 1982, Judge Williams rendered his Opinion and Judgment," invalidating every statute at issue. Brief for Appellees, supra note 93, at 13-14. The L.R.C. appealed and the appeal was transferred directly to the Supreme Court on Appellants' motion. Id. at 14. See notes 186-88 supra and accompanying text.

208 See L.R.C. v. Brown, 664 S.W.2d 907, 909 (Ky. 1984).

209 The significance of Jefferson's authorship is that the Constitution of the United States does not contain an express separation of powers provision such as KY. Const. §§27, 28. In fact the federal Constitution, drafted principally by James Madison, contained neither a Bill of Rights nor an express separation of powers provision. These were the two principal objections of Thomas Jefferson to Madison's document. See The Federalist, Nos. 47, 48 (J. Madison). Contra The Federalist, No. 50 (A. Hamilton). The First Congress submitted the Bill of Rights to the States as the first ten amendments to the federal Constitution. However, Jefferson's other proposed amendment, an express separation of powers provision, was not added to the federal Constitution. It is against that historical backdrop that one must judge the importance of the fact that Thomas Jefferson personally wrote Kentucky's separation of powers provisions. A detailed account of Jefferson's authorship of this provision is contained in Commissioners of Sinking Fund

46 two paragraphs of Kentucky's first, second and third Constitutions.210 Jefferson's words appear in the present Constitution of Kentucky immediately after the Bill of Rights211 and form "an unusually forceful" Separation of Powers Clause.212

Despite the clarity of Kentucky's separation of powers doctrine, the L.R.C. contended that the provisions should be liberally construed in the modern era.213 The Supreme v. George, 47 S.W. 779, 785 (Ky. 1898) (Du Relle, J., dissenting). See also Rouse v. Johnson, 28 S.W.2d 745, 752 (Ky. 1930) (Willis, J., dissenting).

210 See KY. Const. of 1792 art. I, §§1, 2; KY. Const. of 1799 art. I, §§1, 2; KY. Const. of 1850 art. I, §§1, 2.

211 See KY. Const. §§27, 28 which are set out in note 41 supra.

212 Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 684 (Ky. 1980). See also Sibert v. Garrett, 246 S.W. 455 (Ky. 1922). In Sibert, the Court stated:

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, which history tells us came from the pen of the great declaimer of American independence, Thomas Jefferson, when delegates from Kentucky, just after it was admitted to the Union, waited upon him, and he penned for them the substance of what is now section 28 . . . of our Constitution, containing an affirmative prohibition against one department exercising powers properly belonging to the others, and which without it contained only the negative prohibition found in section 27 of that instrument, and which was the extent of the separation of the powers found in the federal Constitution and in those of a number of the states composing the confederated Union at that time.

Id. at 457.

213 See L.R.C. v. Brown, 664 S.W.2d at 910. In making this argument, the L.R.C. relied exclusively upon Kansas and New Hampshire cases – State ex rel. Schneider v. Bennett, 547 P.2d 786, 791 (Kan. 1976) and Opinion of the Justices, 431 A.2d 783, 786 (N.H. 1981) – for the contention that the doctrine of separation of powers should be liberally construed in the modern era. See Brief for Appellants, supra note 110, at 13-14. However, "the Constitution of Kansas contains no express provision requiring the separation of powers," 547 P.2d at 790, and the New Hampshire Constitution contains perhaps the weakest separation of powers provision in the country. See N.H. Const. pt. I, art. 37 ("the three essential powers [of government] . . . ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the Constitution in one indissoluble bond of unity and amity"). Obviously, these cases were not authority for construing the "unusually forceful" language of KY. Const. §§27, 28. See e.g., State v. Hunter, 447 A.2d 797, 799-800 (Me. 1982) (Federal separation of powers cases are not authority for construction of the Maine Constitution because, unlike the federal Constitution, the Maine Constitution has an express separation of powers provision.).

The L.R.C.'s argument also overlooked the fact that there are two types of separation of powers cases: (1) cases in which one branch of government usurps powers properly belonging to another branch of government; and (2) cases in which one branch of government exercises powers properly belonging to it, but encroaches upon the responsibilities of a coequal branch of government in the course of exercising its rightful powers. An example of a case involving the usurpation of power is the famous steel mill seizure case, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (seizure of steel mills by Presidential order an unlawful exercise of

47 Court of Kentucky was not persuaded: "[I]t has been our view, in interpreting Sections 27 and 28, that the separation of powers doctrine is fundamental to Kentucky's tri-partite system of government and must be 'strictly construed.'"214

The Court was not called upon in L.R.C. v. Brown to apply a political science concept of checks and balances, nor was it required to adjust that amorphous concept to changing times. Quite the contrary, the Court was called upon to apply the plain and "unusually forceful" language of sections 27 and 28 of the Kentucky Constitution to the statutes enacted by the 1982 General Assembly.215

2. Legislative Action Having Force of Law Must Comply with All the Constitution's Procedural Requirements for Enacting Laws

The American idea of diffusing governmental power was accomplished not only by separating the government into three branches, but also by imposing specific limitations upon the process of enacting laws. The Court of Appeals for the District of Columbia noted in Consumer Energy Council v. Federal Energy Regulatory Commission:216 "Perhaps the greatest fear of the Framers was that in a representative democracy the Legislature would be capable of using its plenary lawmaking power to swallow up the other departments of the Government.''217

The remedies fashioned by the framers were bicameralism and the executive veto, both of which have become part of the American form of government218 and are specifically embodied in sections 46, 56, and 88 of the Kentucky Constitution. All four Kentucky Constitutions have embodied the concept of bicameralism and the executive veto.219

congressional power). An example of an encroachment case is United States v. Nixon, 418 U.S. 683 (1974) (grand jury exercised rightful power of issuing subpoena and President Nixon argued that subpoena should be quashed because it encroached upon core functions of executive branch).

214 664 S.W.2d at 912 (quoting Arnett v. Meredith, 121 S.W.2d 36, 38 (Ky. 1938)).

215 See statutes cited infra notes 223-26.

216 673 F.2d 425 (D.C. Cir. 1982), aff'd, 103 S.Ct. 3556 (1983). See also The Federalist, No. 46 (J. Madison).

217 673 F.2d at 464.

218 See id. at 464-65. The court observed:

What emerges from our analysis of the purposes of the lawmaking restrictions in Article I is that the Framers were determined that the legislative power should be difficult to employ. The requirements of presentation to the President and bicameral concurrence ultimately serve the same fundamental purpose: to restrict the operation of the legislative power to those policies which meet the approval of three constituencies, or a supermajority of two.

Id. at 464.

219 Having as its primary objective limiting the legislative power, the Constitutional Convention wrote into the present Constitution a number of other preconditions to exercising the lawmaking

48 These concepts, and the procedures embodied in the Enactment Clause,220 were intended to insure that the legislative process is a deliberative one.221 These constitutional requirements are fatal to any scheme which purports to allow a legislative committee, such as the L.R.C., to exercise the lawmaking power, whether during or between legislative sessions.222

In sum, the issues in L.R.C. v. Brown involved application of the Separation of Powers Clauses, the Bicameral Clause, the Adjournment Clause and the Enactment Clause. Pursuant to a strict construction of those provisions, the Court invalidated all the questioned statutes except two relating to the budget process.

B. The Power of Appointment

Several enactments of the 1982 General Assembly encroached upon the Governor's power to appoint members of executive boards and agencies. These statutes generally fell into four groups: [i] statutes permitting legislators to serve as members of executive boards and agencies;223 [ii] statutes permitting legislators to appoint members of executive boards and agencies;224 [iii] statutes permitting the L.R.C. or an interim power. See KY. Const., §§37, 46, 51, 55, 56, 59. See also notes 209-10 supra and accompanying text.

220 KY. Const. §51.

221 Cf. State v. A.L.I.V.E. Voluntary, 606 P.2d 769, 772 (Alaska 1980). (Alaska Constitution's procedural requirements for the enactment of legislation are designed to prevent duplicity and insure a fair hearing and due deliberation). Accord State ex rel. Barker v. Manchin, 279 S.E.2d 622, 633 (W. Va. 1981).

222 Cf. 606 P.2d at 773 ("[W]hen the legislature wishes to act in an advisory capacity it may act by resolution. However, when it means to take action having a binding effect upon those outside the legislature, it may do so only by following the enactment procedures.")

223 See KRS §151.560(1)(a) (Cum. Supp. 1983) (requiring Governor to appoint two members of General Assembly to the Flood Control Advisory Commission); KRS §154.675(1) (Cum. Supp. 1982) (Speaker and President Pro Tempore made ex officio members of the Enterprise Zone Authority).

224 The statutes permitting the Speaker of the House of Representatives and/or the President Pro Tempore of the Senate to appoint one or more members of boards and agencies within the executive department included: KRS §31.015(1)(b)-(c) (Cum. Supp. 1983) (Public Advocacy Commission); KRS §42.500 (Cum. Supp. 1983) (State Investment Commission); KRS §103.2101(1)(a)-(b) (Cum. Supp. 1983) (Industrial Revenue Bond Oversight Committee); KRS §117.015(2) (Cum. Supp. 1983) (State Board of Elections); KRS §163.505 (Cum. Supp. 1983) (Commission on Deaf and Hearing Impaired); KRS §164.010 (Cum. Supp. 1983) (Council on Higher Education); KRS §174.105(2) (Cum. Supp. 1983) (Motor Carrier Regulatory Board); KRS §230.220(1) (Cum. Supp. 1983) (State Racing Commission); KRS §230.620 (Cum. Supp. 1983) (Kentucky Harness Racing Commission); KRS §247.090(1)(f) (Cum. Supp. 1983) (State Fair Board); KRS §441.615(1)(g) (Cum. Supp. 1983) (Kentucky Local Correction Facilities Construction Authority). See also, KRS §151.560(1)(b) (Cum. Supp. 1983) (L.R.C. authorized to appoint nine members of the Flood Control Advisory Commission); KRS §153.380(3) (Cum. Supp. 1983) (L.R.C. authorized to appoint five members of the Kentucky Oral History Commission).

49 committee to exercise power of advice and consent over gubernatorial appointments in the interim between legislative sessions;225 and [iv] statutes requiring the Governor to choose his appointees from lists composed by legislators.226 The decision in L.R.C v. Brown invalidated all of these statutes.

1. Statutes Empowering the Speaker and President Pro Tempore to Appoint Members of Executive Agencies Violate the Separation of Powers Clauses

The Kentucky Constitution does not contain an Appointments Clause. Indeed, there was an Appointments Clause in the Constitution as submitted by the 1890 Convention to the voters, but when the Convention reconvened after the referendum, it deleted the Appointments Clause.227 As approved, section 93 of the Constitution, which provides for the constitutional officers, Governor and Lieutentant[sic] Governor, states:

The duties and responsibilities of these officers shall be prescribed by law, and all fees collected by any of said officers shall be covered into the treasury. Inferior State officers, 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.228

The L.R.C. contended that, in the absence of an Appointments Clause, section 93 gives the General Assembly not only the power to prescribe the method by which executive officers are to be selected, but also the power to appoint those Executive Officers.229 However literally sensible that interpretation might be, it is completely inconsistent with the ''unusually forceful'' separation of powers provisions contained in the Kentucky Constitution.230

It is generally recognized that the power to appoint Executive Officers is inherently executive, and that to hold otherwise is to deprive the Chief Executive of the right to control his own branch of government.231 The Governor's obligation to faithfully execute the law implies, as a necessary incident, the power to appoint those who will act under his direction in discharging this obligation.232

225 See KRS §248.510(1)(b) (1981) (Kentucky Tobacco Research Board); KRS §278.050(1) (Cum. Supp. 1984) (Public Service Commission).

226 See KRS §18A.050(2) (Cum. Supp. 1984) (State Personnel Board); KRS §151.560(1)(b) (Cum. Supp. 1982) (Flood Control Advisory Commission).

227 See note 59 supra.

228 KY. Const. §93.

229 See Brief for Appellants, supra note 110, at 32-33.

230 See KY. Const. §§27, 28. See also notes 209-15 supra and accompanying text.

231 See, e.g., Springer v. Philippine Islands, 277 U.S. 189, 203 (1928).

232 Cf. Myers v. United States, 272 U.S. 52, 117 (1926). The Supreme Court observed:

50 L.R.C. v. Brown was not the first case in which it was argued that section 93 should be interpreted to permit the Speaker and President Pro Tempore to appoint members of executive agencies. In fact, the same argument was rejected in Sibert v. Garrett.233 In a post-Sibert decision, Judge Simeon Willis stated: ''It is settled in this state that . . . the appointment to a state office is an executive function. . . .''234

The L.R.C.'s hopes of getting Sibert v. Garrett overruled did not rest solely upon the Palmore Court's constitutional viewpoint as expressed in Brown v. Barkley that the executive branch exists principally to serve the legislature. It also rested upon the Court's previously inconsistent interpretations of section 93. In advancing this argument and asking that Sibert be overruled, the L.R.C. was merely asking that precedents adopted prior to Sibert be reinstated.

The earliest interpretations of section 93 came during the tumultuous political era of 1898-1901 that culminated in the assassination of William Goebel.235 The first case that interpreted section 93 was Commissioners of Sinking Fund v. George,236 in which Senator William Goebel was the successful appellate advocate. The Court held that the General Assembly in joint session could elect the members of the Board of Penitentiary Commissioners.237 This seemingly innocuous result led to the controversial "Goebel election law," which created a three-person State Election Commission.238 The Election Commission, whose members were appointed by the General Assembly, had the power to resolve certain disputes and the power to appoint the members of every local Election Commission.239 The statute was upheld in Poyntz v. Shackelford240 and Purnell v. Mann241 by votes of four to three.

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. . . . As he is charged specifically to take care that they be faithfully executed, the responsible implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws.

Id. (citations omitted).

233 See 246 S.W. at 458.

234 See Rouse v. Johnson, 28 S.W.2d 745, 752 (Ky. 1930) (Willis, J., dissenting).

235 See Poyntz v. Shackelford, 54 S.W. 855, 856-58 (Ky. 1900) (members of State Board of Election Commissioners to appoint new Commissioners to fill vacancies); Purnell v. Mann, 48 S.W. 407, 410 (Ky. 1898) (legislature to appoint members of State Board of Election Commissioners); Commissioners of Sinking Fund v. George, 47 S.W. 779, 781-82 (Ky. 1898) (legislature may appoint members of the Board of Penitentiary Commissioners).

236 47 S.W. 779.

237 See id. at 781-82.

238 See An Act to Further Regulate Elections, Mar. 10, 1898, ch. 13, §1, 1898 Ky. Acts 43.

239 See id.

51 The Goebel election law led to the General Assembly's reversal of the 1899 election.242 The General Assembly threw out the elections of the Republican candidates for Governor and Lieutenant Governor, thereby seating Goebel as Governor and Beckham as Lieutenant Governor.243 These events, unfortunately, culminated in the assassination of Goebel and a state of anarchy in Frankfort.244

The Goebel election law was subsequently invalidated in Pratt v. Breckenridge,245 with the Kentucky Court of Appeals thereby overruling its previous decisions in George, Poyntz and Purnell.246 Pratt involved a contest of the 1899 election for Attorney General.247 Relying upon George and its progeny,248 appellants argued that the language in section 93 which states that additional inferior officers "may be appointed or elected, in such manner as may be provided by law,'' does not give the Governor exclusive power of appointment.249 The Court in Pratt rejected this interpretation of section 93, thus overruling George and its progeny. The Court held that section 93 was intended to permit the General Assembly to determine whether inferior state officers are to be popularly elected or appointed by the Governor.250 The Court went on to conclude that if section 93 were not limited to that interpretation then the General Assembly would be the dominant branch of government, a result that is completely contrary to the political sentiment that sought to restrict legislative power in the Constitution.251

240 54 S.W. 855.

241 48 S.W. 407.

242 See Taylor v. Beckham, 56 S.W. 177, 178 (Ky. 1900).

243 See id.

244 See H. Tapp & J. Klotter, supra note 13, at 447-50.

245 65 S.W. 136 (Ky. 1901).

246 See cases cited supra note 235.

247 See note 238 supra and accompanying text.

248 See cases cited supra note 235.

249 See 65 S.W. at 137.

250 See id. at 140-41.

251 See id. at 140, 142-43. But see IV Debates, supra note 1, at 5728-29 for the Revisory Committee report that a clause granting the Governor exclusive power to appoint state officers not required to be elected would conflict with §93. "[I]t would disturb that settled principle which, we believe, has been approved by the people, that as to all these subordinates, it should be left to the power of the General Assembly to say whether they should be elected or appointed, and if not elected by the people, by whom they should be appointed." Id. at 5728. The next case chronologically after Pratt was Sewell v. Bennett, 220 S.W. 517 (Ky. 1920). The issue in Sewell was whether a generally applicable statute requiring the advice and consent of the Senate to all gubernatorial appointments applied to the newly-created Workmen's Compensation Board since the act creating that board did not require such advice and consent. The Kentucky Constitution does not contain an advice and consent clause. In the course of holding that the legislature may impose the advice and consent requirement upon gubernatorial appointments by statute, the

52 Pratt was expressly reaffirmed in Sibert v. Garrett, which involved the State Highway Commission created by the 1922 General Assembly. The Act named two members of the Commission and provided that the remaining two would thereafter be elected by the General Assembly.252 Expressly rejecting the argument that section 93 permits the General Assembly to appoint members of executive agencies,253 the Court invalidated this statute as violative of the separation of powers embodied in section 28 of the Constitution and refused to ignore Pratt or to follow the George case and its progeny.254

Sewell Court unfortunately referred to the holding in Commissioners of Sinking Fund v. George saying the legislature could have made the appointment itself. See id. at 519. Thus, "[t]he Court, indeed, seemed to retreat from Pratt and revitalize George." L.R.C. v. Brown, 664 S.W.2d at 922. However, Sewell v. Bennett did not deal directly with the power of appointment, and was chronologically sandwiched between Pratt and Sibert. Thus, the Court in L.R.C. v. Brown had no difficulty in determining that the controlling precedent was Sibert v. Garrett: "It is our view that Sibert has been unchanged and is therefore dispositive of the central issue present in these contested statutes." 664 S.W.2d at 923.

252 See An Act to Amend an Act, app. §1, 1922 Ky. Acts 459, 460.

253 246 S.W. at 460. The Court concluded:

[W]ere we to adopt the opposite construction . . . it would lead to a virtual overthrow of [the Constitution's] sections 27 and 28, separating the functions of the state government into three grand departments. . . .

[T]he power of the Legislature . . . is broad enough in section 93 to confer the power on the Legislature, if appellants' contention be true, to appoint all inferior state officers, . . . whether their functions be strictly legislative, executive, or judicial. The logical result of the contention, if adopted and followed, would empower the Legislature to appoint or elect [inter alia] the private secretary to the Governor. . . . If such power would not tend or serve to destroy the purpose and intention sought to be accomplished by separating the powers of government in the Constitution, it would be difficult to conceive of one that would. Id.

254 See id. at 458. The Court stated:

To begin with, the latest utterance of this court in the Pratt-Breckinridge Case . . . holds that under no provisions of our present Constitution is it competent for the Legislature to itself elect, designate, or appoint officers whose duties are of the nature and character attempted to be conferred on appellants in this case. But it is said that the opinion in that case was what might be termed a political one, and which in a sense may be accepted as true, and that its reasoning should not be followed on that account, but rather should the doctrine of Sinking Fund Commissioners v. George . . . be applied in this case. Answering that contention, it might be conceded that there would be much force in it if the George opinion and those following it were supported by reasoning as sound or sounder than is found in the Pratt-Breckinridge opinion, which, however, we are not prepared to admit. Without incorporating excerpts from the latter opinion, we are convinced, beyond doubt, that its reasoning is jar more convincing than that contained in its short-lived predecessors, and, according to our view, is practically unanswerable. Besides, the doctrine of stare decisis has not lost its place in the law, and . . . it is entitled to great weight and is adhered to by most courts, unless the principle established by the prior decisions is clearly erroneous.

Id. (emphasis added).

53 Directly addressing the argument that section 93 permits the General Assembly itself to appoint members of executive agencies, the Court in Sibert held that only the executive branch can appoint the officers who are to serve in its departments.255

In spite of the Court's definitive holding in Sibert that the legislature may not constitutionally usurp the Governor's power of appointment, the Court held two years later in Craig v. O'Rear256 that the legislature may choose the members of a temporary agency. Craig involved the General Assembly's creation of a temporary commission for selecting Morehead and Murray as college towns.257 The members of the commission were appointed by the Speaker and President Pro Tempore.258 The Court distinguished Craig and Sibert by observing that Craig involved selecting members of a temporary agency ''appointed to perform a particular task, who serve without term and whose functions cease when the purpose is accomplished. . . .''259

255 See id. at 460. The Court stated:

[W]hen sections 93 and 107 conferred the power upon the Legislature to provide for the "filling of inferior state officers in such manner as may be prescribed by law," or to "provide for the election or appointment" of created county or district officers, the conclusion is inevitable, from the language employed and in the light of the purpose of the constitutional requirement segregating and separating the functions of government, that the authority of the Legislature is limited to making such provisions by exercising its authority to pass an act containing them and directing upon whom or with whom the power to appoint or elect was lodged, which electing and appointing agency should, perhaps, be selected from the department to which the duties of the office necessarily appertain. ld. At most, the absence of an express gubernatorial appointments clause means that the power of appointing some executive subordinates may be reposed in elected Executive Officers other than the Governor. See Rouse v. Johnson, 28 S.W.2d at 751.

256 251 S.W. 828 (Ky. 1923).

257 See id. at 829-30.

258 See id.

259 Id. at 830-31. The Court stated:

The act is assailed on the ground that it violated sections 27 and 28 of the Constitution. . . . The first objection to the act is that it is an assumption of executive power by the Legislature. Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, is relied on. That case merely held that appointment to office was an executive function which could not be exercised by the Legislature itself. The court, however, was careful to point out that the rule was confined solely to the appointment of officers and was not intended to apply to mere temporary agents. While the purpose of the language employed was to call attention to the exception to the rule, and cannot be regarded as controlling, practically all of the courts hold that mere temporary agents appointed to perform a particular task, who serve without term and. without pay, and whose functions cease when the purpose is accomplished, may be appointed by the Legislature itself, or in any manner that it may provide, and we have no doubt of the correctness of this view. Id.

54 In L.R.C. v. Brown the L.R.C. argued that Craig diluted Sibert's holding that the power of appointment is purely an executive function.260 The Court rejected such a broad interpretation of Craig and held that the rationale of Sibert was dispositive of the issue in L.R.C. v. Brown, that is, whether the legislature could constitutionally appoint Executive Officers.261

If, rather than operating under the American tripartite system of government, the power to appoint state executive officials was reposed in the General Assembly, our government would more resemble the British parliamentary system in which the executive branch is little more than a committee of members of Parliament. Political scientists may well debate whether the bi­partite or tripartite system is preferable, but so long as the Jeffersonian doctrine of separation of powers continues to be embodied in sections 27 and 28 of the Kentucky Constitution, the tripartite form of government is constitutionally mandated. The Court was therefore correct in rejecting the L.R.C.'s interpretation of section 93 and holding that the power of appointment is intrinsically executive and therefore, under section 28, only to be exercised by an Executive Officer.262

2. Statutes Requiring the Governor to Choose His Appointees from Persons Nominated by the Legislature Violate the Separation of Powers

Another question raised in L.R.C. v. Brown was whether the General Assembly can require the Governor to choose his appointees from a small list of nominees prescribed by the Speaker or the President Pro Tempore (or any other member of the General Assembly).263 The Court held that the constitutional infirmity in this bill is the same as in the bills purporting to empower the Speaker and President Pro Tempore to make the actual appointments.264 The executive branch must be able to choose its own subordinates to discharge its duty to faithfully execute the law.265

260 See 664 S.W.2d at 923. The Court stated:

Appellants urge the Craig v. O'Rear, 199 Ky. 553, 251 S.W. 828 (1923), decided two years after Sibert, constituted another veer by the court and is controlling. We do not agree. In that case, the Court ruled that the General Assembly could appoint "temporary" agents to perform a particular task, to serve without term and without pay and whose functions cease when the purpose of such appointment was accomplished. Id.

261 See 664 S.W.2d at 913. See also notes 197-99 supra and accompanying text for a discussion of Sibert.

262 Under Rouse v. Johnson, Brown v. Barkley and Ex parte Auditor of Public Accounts, the executive power of appointment can be conferred on other elected constitutional Executive Officers. At what point would that infringe upon the Governor's "supreme executive power" under §69?

263 See 664 S.W.2d at 920.

264 See id. at 923.

265 Id. at 924. Accord Myers v. United States, 272 U.S. 52; Bradner v. Hammond, 553 P .2d 1, 6-7 (Alaska 1976).

55 If the power of appointment is intrinsically executive, the legislature may not so restrict the field from which the executive may choose the appointee that it amounts to a legislative appointment.266 The statutes involved in L.R.C. v. Brown attempted to limit the Governor's power of appointment to nominees chosen by members of the General Assembly.267 This indirect method of conferring the executive power of appointment upon legislators was held invalid for the same reasons as were the statutes purporting to permit the Speaker and President Pro Tempore to actually make appointments.268

3. Statutes Empowering the L.R.C. to Exercise the Power of Advice and Consent Regarding Executive Appointments Are Unconstitutional

Statutes giving the L.R.C. or an interim committee the power of advice and consent over the Governor's appointments to the Public Service Commission and the Kentucky Tobacco Research Board constituted the final encroachment upon the executive power of appointment.269 Perhaps because it does not have an Appointments Clause, Kentucky's Constitution does not have an Advice and Consent Clause.270 But that was not the issue in L.R.C. v. Brown. The infirmity in these statutes was that whatever power of advice and consent may be exercised by the General Assembly when in session, that power may not be delegated to an interim committee to be exercised after expiration of the constitutional, sixty-day limit on legislative sessions.271

4. Section 28 Prohibits Legislators from Serving on Executive Boards

Even under an elastic version of the separation of powers, the power to execute laws must be kept separate from the power to enact laws. This concept is embodied in section 28 of the Kentucky Constitution which provides that "[n]o person . . . being [a member of one branch of government], shall exercise any power properly belonging to either of the others." Thus, it is clear that section 28 prohibits a legislator from sitting as a

266 Mow Sun Wong v. Hampton, 435 F.Supp. 37, 41 n.6 (N.D. Cal. 1977) ("[Q]ualifications prescribed by Congress [may] not amount to a 'legislative designation' of the appointee ...."), aff'd sub nom. Mow Sun Wong v. Campbell, 626 F.2d 739 (9th Cir. 1980), cert. denied, 450 U.S. 959 (1981).

267 664 S.W.2d at 923.

268 Id. Subsequent to the Court's denial of the petition for rehearing, the L.R.C. asserted that the portion of the Court's opinion stating that the Governor may make appointments "without limitation by the General Assembly" required repeal of statutes relating to such matters as the partisan or gender membership ratios of boards and commissions. However, that issue had been disposed of in Elrod v. Willis, 203 S.W.2d 18 (Ky. 1947), and was never an issue in L.R.C. v. Brown.

269 See KRS §248.510(a)(b)(1981); KRS §278.050(1) (Cum. Supp. 1984).

270 The Court did, however, uphold a statute requiring Senate approval of appointments in Sewell v. Bennett, 220 S.W. 517. See note 251 supra for a discussion of Sewell.

271 See 664 S.W.2d at 921, 924 (While the trial court held that it was improper for the General Assembly to delegate the power of advice and consent to the L.R.C., the Supreme Court merely declared the statute invalid.).

56 member of a board or agency within the executive department.272 A Kentucky case directly on point is Meagher v. Howell,273 in which the Court held that a state Senator's acceptance of appointment as State Banking Commissioner caused the Senator to have immediately vacated his Senate seat by operation of law.274

Kentucky is not unique in adhering to this view. Indeed, the great weight of authority holds that statutes permitting legislators to be members of executive agencies are void for violating the constitutional principle of separation of powers.275 The L.R.C. nevertheless contended that the statutes were valid as a mere exercise of legislative oversight through minority membership on executive boards and commissions.276 The Court had little difficulty dismissing this argument and invalidating those statutes making certain legislators ex officio members of executive boards and agencies.277

C. The Legislative Veto of Administrative Regulations

Perhaps the most sweeping power conferred upon the L.R.C. by the 1982 General Assembly was the power to veto administrative regulations.278 Prior to 1982, the L.R.C. merely reviewed and commented upon administrative regulations.279 The new legislation gave the L.R.C. the power to grant or withhold legal effect from any administrative regulations promulgated by the executive branch when the General Assembly was not in session.280 Thus, these statutes embodied the so-called "legislative veto of

272 Responding to a petition for rehearing, the Court modified its opinion to divide the invalidated statutes into two categories. Those statutes providing for appointment of Executive Officers by the legislative branch were held to create valid offices which must constitutionally be filled by the executive branch. Those statutes creating executive offices filled ex officio by legislators were held to have created unconstitutional offices. L.R.C. v. Brown, 664 S.W.2d at 924.

273 188 S.W. 373 (1916).

274 Id. at 374.

275 See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976); Greer v. State, 212 S.E.2d 836 (Ga. 1975); Book v. State Office Bldg. Comm'n, 149 N.E.2d 273 (Ind. 1958); People v. Tremaine, 168 N.E. 817 (N.Y. 1929); State ex rel. Wallace v. Bone, 286 S.E.2d 79 (N.C. 1982); State ex rel. State Bldg. Comm'n v. Bailey, 150 S.E.2d 449 (W. Va. 1966).

276 See Brief for Appellants, supra note 110, at 34. The L.R.C.'s reliance on State ex rel. Patzer v. Kansas Turnpike, 273 P.2d 198 (Kan. 1954), was misplaced. The Kansas Constitution contains no express separation of powers provision. See id. at 206; State ex rel. Schneider v. Bennett, 547 P.2d at 790.

277 See 664 S.W.2d at 924.

278 See KRS §13.088 (repealed by Acts of 1984, ch. 417, 36, effective Apr. 13, 1984). The statute had a nonseverability clause which provided that, if the power of the L.R.C. to veto administrative regulations were to be declared invalid, the executive department would have no power whatsoever to promulgate administrative regulations. See KRS §13.092(3). See also text accompanying note 301 infra.

279 See KRS §§13.080-.125 (repealed by Acts of 1984, ch. 417, §36, effective Apr. 13, 1984).

280 See KRS §13.092(1) (repealed by Acts of 1984, ch. 417, §36, effective Apr. 13, 1984).

57 administrative regulations" that Congress and some state legislatures have experimented with in recent years. Significantly, every decided case involving the validity of such statutes has declared them unconstitutional.281

The L.R.C. attempted to evade the holdings in these cases by belittling the Kentucky procedure. The L.R.C. noted that the review and comment provisions of the bill had been in effect since 1980 and inaccurately asserted that the only substantive change enacted in 1982 was that which prevented the executive department from issuing emergency regulations when the L.R.C. vetoed a proposed regulation.282 Obviously, however, that change was critical. Under preexisting law, the L.R.C.'s objections were merely precatory and did not have force of law.283 Agencies could still implement the desired regulations by simply labeling them emergency regulations.284 Thus, the change wrought by the 1982 bill was the attempt to give legal effect to the L.R.C. 's disapproval of administrative regulations. This change violated the Constitution because it amounted to exercising the lawmaking power in the interim after adjournment by less than all the members of the General Assembly.285

The L.R.C. also asserted that the 1982 bill did not really permit the L.R.C. to veto administrative regulations, but rather only permitted it to suspend the legal effect of the regulation until the General Assembly re-convened.286 The L.R.C. steadfastly contended that there was a difference of constitutional dimension between vetoing administrative regulations – which the General Assembly can do by joint resolution – and merely suspending their legal effect.287 However, when the L.R.C. suspends the effectiveness of a regulation, it deprives the regulation of force of law. This action is both an improper encroachment into the power of the executive branch to issue regulations and an

281 See Consumers Union of U.S., Inc. v. FTC, 691 F.2d 575 (D.C. Cir. 1982) (en banc), aff'd, 103 S.Ct. 3556 (1983); Consumer Energy Council v. Federal Energy Regulatory Comm'n, 673 F.2d 425 (D.C. Cir. 1982); Chadha v. INS, 634 F.2d 408 (9th Cir. 1980), aff'd, 462 U.S. 919 (1983); State v. A.L.I.V.E. Voluntary, 606 P.2d 769; Opinion of the Justices, 431 A.2d 783; General Assembly v. Byrne, 448 A.2d 438 (N.J. 1982); State ex rel. Barker v. Manchin, 279 S.E.2d 622 (W. Va. 1981).

282 See Brief for Appellants, supra note 110, at 54-55.

283 See 664 S.W.2d at 918.

284 See KRS §13.087(4) (repealed by Acts of 1984, ch. 417, §36, effective Apr. 13, 1984).

285 See notes 216-22 supra and accompanying text. See also 664 S.W.2d at 918-19 (scheme of legislative or L.R.C. review as anected[sic] is an encroachment into the power of the executive branch).

286 Brief for Appellants, supra note 110, at 57.

287 Id. The L.R.C. relied upon Opinion of the Justices, 431 A.2d 783. The precise holding in that advisory opinion was that a New Hampshire statute was an unconstitutional violation of the concept of bicameralism because it vested the veto power in a legislative committee. See 431 A.2d at 789. The New Hampshire Court did suggest that the legislature investigate the Wisconsin procedure of suspending a regulation's effectiveness. See id. However, the Wisconsin procedure had already been ruled unconstitutional because suspending regulations constitutes lawmaking by an interim committee. See 1974 Wise. Op. Att'y Gen. 159.

58 impermissible exercise of the lawmaking power after adjournment of the General Assembly.288

The Court found that these statutes did "have the effect of creating a legislative veto of the actions of the executive branch."289 Whatever power the General Assembly, while in session, may have to veto an administrative regulation, it is constitutionally impermissible for the General Assembly to attempt to delegate that lawmaking power to a committee, such as the L.R.C., to be exercised in the interim after adjournment.290 In addition to noncompliance with the Enactment and Presentment Clauses, the Kentucky bill was a delegation of legislative power to a small group (in violation of the Bicameral Clause) to be exercised in the interims between legislative sessions (in violation of the Adjournment Clause).291 The L.R.C. attempted to rationalize its veto power over administrative regulations by contending that it could veto a proposed regulation only if it did not comply with the legislative intent of the statute being implemented by the regulation.292 There are a number of fallacies in this argument.

First and foremost, it overestimates human nature to believe that legislators ignore current political forces when they "judicially review" proposed regulations.293 Legislators will not limit themselves to objective evidence of an earlier legislative intention, but "will inevitably" work out a present intention – a decision based on what is presently politically desirable or acceptable.294 This, of course, is the essence of the lawmaking power. The legislative process is by design "political" in the sense that it works by compromise responsive to the popular will, but the faithful execution of the laws is supposed to be a rational response to previously established policy.295

288 664 S.W.2d at 918-19 n.12.

289 Id. at 918.

290 See notes 216-22 supra and accompanying text. See also 664 S.W.2d at 918-19.

291 See KY. Const. §§46, 56, 88. See also State ex rel. Barker v. Manchin, 279 S.E.2d at 635-36 (legislative committee veto is unconstitutional vesting of legislative power in the hands of a few).

The Court rejected the L.R.C.'s contention that L.R.C. oversight was necessary to prevent the executive branch from exceeding its authority and to preserve the balance of power between the legislative and executive branches. See 664 S.W.2d at 919.

292 See Brief for Appellants, supra note 110, at 59-60; 664 S.W.2d at 919 & n.14 (anyone may form an opinion as to whether an action is legal or not, but not to the point of vetoing executive action). See also KRS §13.087(4) (repealed by Acts of 1984, ch. 417, §36, effective Apr. 13, 1984).

293 See 279 S.E.2d at 632 n.5; Schubert, "Legislative Adjudication of Administrative Legislation," 7 J. Pub. Law 134, 157-58 (1958).

294 See 673 F.2d at 478.

295 See Bruff & Gellhorn, "Congressional Control of Administrative Regulation: A Study of Legislative Vetoes," 90 Harv. L. Rev. 1369, 1419 (1976-77). After studying how the Congressional veto had actually been implemented, the authors concluded:

59 Second, the long-standing rule in Kentucky is that the power to determine whether an administrative regulation is invalid as exceeding the scope or intent of the underlying statute is a judicial power.296 By giving the L.R.C. the power to determine whether administrative regulations comply with legislative intent, the General Assembly was attempting to confer upon its leadership (who ex officio comprise the L.R.C.) an inherently judicial power. However, under sections 27 and 28 of the Kentucky Constitution, the legislative branch may not exercise any judicial powers other than those expressly conferred upon it by specific provisions of the Constitution.297 Accordingly, the Court held the statute unconstitutional for delegating to members of the General Assembly an inherently judicial power.298

Third, L.R.C. review of proposed regulations for conformity with legislative intent also violates the doctrine of separation of powers by seriously encroaching upon the judiciary's ability to discharge its constitutional function of reviewing administrative regulations.299 For example, when the courts are determining whether an administrative regulation is valid, they often look to legislative intent. Under the scheme prescribed by KRS 13.087(4), however, the courts would also be required to look at the L.R.C.'s intervening review and approval of the regulation. This could become a special problem where the regulation was implementing a statute enacted decades before the regulation was promulgated. When the L.R.C.'s interpretation differed from the court's, what would the court have done? If the L.R.C. had approved the regulation, would the court have been precluded from invalidating it?300 Thus, injecting the L.R.C. into the process of judicial review was not only a usurpation of judicial power by legislators, but also an encroachment upon the judicial power which has been exclusively vested in the Court of Justice by the Constitution.

Once the Supreme Court invalidated the legislative veto of administrative regulations, it became necessary to decide the validity of the draconian nonseverability clause included in the statute. This clause provided that, if the L.R.C. could not veto proposed

[I]n all cases congressional review was primarily based on policy. The reason is not hard to divine: the traditional and constitutional role of Congress is the formulation and alteration of policy . . . . Members of Congress are unaccustomed, and the institution is ill-equipped, to make a restrained and judicious examination of a rule's subservience to statutory purpose.

Id.

296 See 664 S.W.2d at 919.

297 For example, the Constitution specifically confers judicial powers on the legislative branch in KY. Const. §§67 and 109.

298 664 S.W.2d at 919.

299 See id.

300 Cf. 634 F.2d at 430-32. This problem is compounded when one considers the well-settled rule that the testimony of legislators after enactment of a statute is not admissible in court on the issue of legislative intent. See, e.g., Epstein v. Resor, 296 F.Supp. 214, 216 (N.D. Cal. 1968), aff'd, 421 F.2d 930 (9th Cir.), cert. denied, 398 U.S. 965 (1970); Decker v. Russell, 357 S.W.2d 886 (Ky. 1962); Wheeler v. Board of Comm'rs, 53 S.W.2d 740, 742 (Ky. 1932).

60 regulations, then the executive department would thereafter be prohibited from issuing any regulations pursuant to any other statute.301

The nonseverability provision raised questions that go to the heart of modern administrative law. The doctrine of delegation of legislative power to administrative agencies has generally fallen into disuse and disrepute. In fact, it has been disavowed in Kentucky.302 By enacting this provision, however, the General Assembly advanced the constitutional and political argument that, because administrative agencies have only those powers delegated to them by the legislature, the legislature may withdraw those powers, including the power to issue administrative regulations.

The Court resolved this fundamental question when it invalidated the nonseverability clause. The Court held that, when the legislature has enacted a statute, it becomes the constitutional duty of the Governor and his subordinates to "faithfully execute" that law.303 It is often necessary to issue regulations in order to faithfully execute the law. Administrative regulations inform the public of the interpretation placed on the statutes by the enforcement officials '''so those concerned may know in advance all the rules of the game, so to speak, and may act with reasonable assurance.'"304 Statutory enactments often have ambiguities which must be clarified in the enforcement process. Indeed, "[t]he chief function of executive agencies is to implement statutes through the adoption of coherent regulatory schemes.''305 Thus, the issuance of administrative regulations is a necessary incident to the constitutional duty to faithfully execute the law, and it therefore cannot be totally abrogated by the legislature.306

The cornerstone of administrative law is that the legislature must make policy decisions when enacting statutes so that the executive department is doing nothing more than faithfully executing the law when it issues a regulation. If the legislature enacts a statute conferring standardless discretion on an administrative agency, it is the statute (not just the regulation) that is invalid as an unlawful delegation of legislative power.307 Similarly, any regulation that exceeds the scope of the statutes being implemented is unlawful because it exceeds the duty to execute the law and amounts to a seizure of legislative power by the executive branch.308 Although it is true that without statutes there is nothing

301 See KRS §13.092(3) (repealed by Acts of 1984, ch. 417, §36, effective Apr. 13, 1984).

302 See Butler v. United Cerebral Palsy, 352 S.W.2d 203 (Ky. 1961). But see Miller v. Covington Dev. Auth., 539 S.W.2d 1 (Ky. 1976).

303 See 664 S.W.2d at 919.

304 A.2d at 443 (quoting Boller Beverages Inc. v. Davis, 183 A.2d 64 (N.J. 1962)).

305 Id.

306 Cf. Burton v. Mayer, 118 S.W.2d 161 (Ky. 1928) (Court has inherent power to promulgate judicial rules of practice).

307 539 S.W.2d at 1. The Supreme Court adopted this position in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), but later limited Schechter to its facts. Fahey v. Mallonee, 332 U.S. 245, 249 (1947).

308 664 S.W.2d at 919. See generally Preston v. Clements, 232 S.W.2d 85, 88 (Ky. 1950) (proper delegation to agency).

61 for the executive branch to execute, the power to execute arises from section 81 of the Kentucky Constitution and not from any particular statute.309

This is not to contend that the executive branch has unbridled power to issue regulations. There are many statutes that are self­executing and others that can be implemented without regulations. Furthermore, future General Assemblies can restrict the power to issue regulations by amending the underlying statutes. However, there are some statutes that cannot properly be executed without statements by the executive branch clarifying its enforcement policy. Whether these announcements are called interpretive bulletins, rules, regulations, or whatever, it is unconstitutional for the General Assembly to totally prohibit the executive branch from issuing them.310

D. The Power of the Purse

It is an axiom of American government that the legislature holds the purse strings. The federal and most state constitutions, for example, require that the budget originate in the House of Representatives, the arm of government most representative of the populace.311 This is traditionally viewed as the means by which the representatives of the people hold their most powerful check and balance upon the executive branch. Therefore, this is the area in which Kentucky's sixty-day limitation upon the legislature's biennial sessions had perhaps its greatest political impact.

The sixty-day limitation afforded the Governor the opportunity to withhold presentation and enactment of the budget until late in the session.312 This strategy gave the Governor a monopoly upon budgetary information so that his critics would not be well armed to oppose his proposal. Withholding the budget until the end of the session also functioned as a powerful logrolling tool, as legislators bargained for the inclusion of their pet projects in the budget. The reformation of the budgetary process was perhaps the most politically important aspect of the drive towards legislative parity that culminated in the 1982 General Assembly.

309 664 S.W.2d at 919.

310 Id. at 919-20. The Court stated:

The statute in question not only impliedly reorganizes the executive duties of the Governor, but also attempts to usurp these powers. Having failed at the first part, it further attempts to restrict the ability of the Governor to carry out his sworn duties. The General Assembly, by enacting the clause, has restricted the power of the Governor to carry out his duties . . . .

The restriction placed on the executive by KRS 13.092(3) effectively and unconstitutionally limits and interferes with the Governor's mandated duties.

Id. at 920. See also Kenton Water Co. v. City of Covington, 161 S.W. 988, 992 (Ky. 1913) (legislature may not accomplish by a condition that which is excluded from its power). See generally Note, "Unconstitutional Conditions," 73 Harv. L. Rev. 1595 (1959-60).

311 See, e.g., U.S. Const. art. I, §7, cl. 2; KY. Const. §47.

312 See KY. Const. §§46, 56, 88.

62 The 1982 General Assembly enacted several changes in the budgetary process, many of which were not contested by Governor Brown and his Secretary of Finance and Administration, Robert Warren.313 For example, the Governor did not oppose the requirement that the budget be presented on the tenth legislative day.314 There were, however, several budgetary enactments of the 1982 General Assembly which were impleaded in the litigation,315 and this is the one area of the case in which the legislature prevailed on almost all of the issues.

The 1982 Budget Bill316 gave the L.R.C., rather than the Governor, the power to promulgate the budget instructions used by all executive agencies in preparing the Governor's proposed budget.317 It also required the budget to be presented as a joint resolution, rather than as a bill,318 and provided that the budget resolution could not implicitly repeal any provisions of the Kentucky Revised Statutes.319 The bill also contained provisions requiring the Governor's proposed budget, as well as the budget enacted by the General Assembly, to specify how the respective branches would cope with revenue shortfalls during the interims between sessions of the legislature.320

A related issue involved block grants. With the federal government's shift from grant-in- aid programs targeted by subject matter to block grants, state legislatures became increasingly interested in subjecting the block grant revenues to the power of appropriation. The 1982 General Assembly tried to do this by requiring that "[n]o state administering agency shall submit any block grant application to a federal administering agency unless approved by the [L.R.C.]."321 The act also provided that, if the court invalidated the provision requiring L.R.C. approval of the expenditure of block grant monies, then no block grant monies could be expended until the next session of the General Assembly.322

313 Mr. Warren had served as Deputy Auditor of Public Accounts under George Atkins and had participated directly in the efforts of the so-called "Black Sheep" to open the last budget proposed by Governor Julian Carroll. Mr. Warren favored many of the reforms enacted by the 1982 General Assembly.

314 See KRS §48.100(1) (Cum. Supp. 1984).

315 See Brief for Appellants, supra note 110, at 36 for a list of statutes impleaded.

316 See Act of Apr. 12, 1982, ch. 450, §§1-30, 1982 Ky. Acts 1568 (codified at KRS chapter 48 (1983)).

317 See KRS §48.040 (Cum. Supp. 1984).

318 See KRS §48.300 (Cum. Supp. 1984).

319 See KRS §48.130 (Cum. Supp. 1984).

320 See id.

321 See KRS §45.3511(2) (Cum. Supp. 1984).

322 See KRS §49.359 (Cum. Supp. 1984). See also 664 S.W.2d at 928-29.

63 In L.R.C. v. Brown, the Court acknowledged the legislature's preeminence in budgetary matters, while invalidating some of the statutes as an infringement upon the Governor's constitutional obligation to "faithfully execute" the budget.323

1. Managing Revenue Shortfalls in the Interims Between Legislative Sessions

The Governor's ability to spend surplus revenues during the interims between sessions of the legislature, or to determine budget cuts in the event of a revenue shortfall, has been a traditional source of political power to the Governor and, consequently, a source of considerable irritation to legislators. Nevertheless, this power had withstood challenges in the courts because the General Assembly had delegated the power to the Governor by statute.324

The governorship of John Y. Brown, Jr. was one of deficits, not surpluses. During the first biennium of his administration he was required to make severe cuts in the budget enacted by the legislature. This situation, together with the general wave of legislation asserting legislative independence, produced a new statute prescribing how revenue shortfalls would be handled.325

The executive branch argued that these statutes were unconstitutional because they permitted the L.R.C. to determine whether budget cuts proposed by the Governor could be implemented.326 The Court simply disagreed with that reading of the statute. The Court held that requiring the executive branch to implement a legislatively enacted spending reduction plan for revenue shortfalls of less than 5 percent is not an intrusion into the constitutional powers of the executive branch.327 The Court also construed the statute as not permitting the L.R.C. to veto actions by the Governor pertaining to the

323 See 664 S.W.2d at 919-20. It is well-settled that the administration of a budget act, after its enactment, is an executive function which cannot be delegated to an interim legislative committee. See, e.g., Anderson v. Lamm, 579 P.2d 620 (Colo. 1978); State ex rel. Schneider v. Bennett, 547 P.2d 786 (Kan. 1976); In re Opinion of the Justices, 295 S.E.2d 589 (N.C. 1982).

324 See, e.g., Hopkins v. Ford, 534 S.W.2d 792 (Ky. 1976).

325 See KRS §§48.040, .130, .400, .600 (1983) (Cum. Supp. 1984).

326 See Brief for Appellees, supra note 93, at 98-101.

327 See id. at 925-27. The executive branch had also contended that KRS §§48.130 and 48.500 permitted the L.R.C., in the interims between sessions of the legislature, to veto decisions of the executive branch implementing the budget. See Brief for Appellees, supra note 93, at 103-05. The Supreme Court narrowly construed the statutes as limiting the L.R.C. to oversight functions. In upholding the statutes, the Court said:

If the [L.R.C.] disagrees with [any] branch's interpretation [of the appropriations act], that branch may not implement its plan unless and until: its interpretation is amended to conform to that of the [L.R.C.], or (2) the branch notifies the [L.R.C.] of its intention not to agree with the [L.R.C.] and explains its view for noncompliance. When the branch complies with either of the conditions, it may proceed with its own interpretation.

664 S.W.2d at 927 (emphasis in original).

64 executive budget in revenue shortfalls exceeding five percent, but only requiring the Governor to report those actions to the L.R.C. Thus, the statute was narrowly construed to avoid the constitutional question.

The revenue shortfall issues were the only issues in this case having a financial impact upon the judicial branch, and it is interesting to note the Court's disposition of those issues. For example, the Court was careful to emphasize, albeit subtly, that revenue shortfalls are dealt with separately and specifically by the head of each branch of government.328 In other words, no longer can the Governor reduce the budget of the Court of Justice in the event of a revenue shortfall; only the Chief Justice has that right.329

The impact upon the judiciary may also explain its curious treatment of KRS section 48.600. The language of that statute as enacted and codified makes it applicable to a ''projected deficit ... of less than five percent (50%)."330 There is no provision in the statute for revenue shortfalls exceeding five percent. Many observers thought this meant that if the shortfall exceeded five percent, the Governor would be required to call a special session of the legislature to cope with the problem. Nonetheless, the Court's original slip opinion said: "KRS 48.600 provides for the situation when revenue shortfalls exceed 5% of the estimates."331 In their Response to the Petition for Rehearing, attorneys for the executive branch pointed out this seeming inconsistency to the Court.332 The Court's response was two­fold. It added a footnote which cites KRS section 48.130, a statute which also applies to revenue shortfalls of ''not more than 5%."333 Viewing KRS sections 48.130 and 48.600 as being in apparent conflict with each other, the Court – in a novel use of grammatical signals to resolve an issue of statutory constructions – added the word "sic" to its quotation from KRS 48.600, thereby making the statute applicable to revenue shortfalls exceeding five percent.334 This resolution of the seeming conflict in the statutes comports with the Court's preferences for the allocation of power among the three branches. It permits the Chief Justice, rather than the Governor, to allocate reductions in the budget of the Court of Justice, and it obviates the necessity of a special session of the legislature.

328 See 664 S.W.2d at 927.

329 Id. One might envision that even if the statutes upheld by the Court in L.R.C. v. Brown had been repealed, the Court would have relied upon Ex parte Auditor of Public Accounts to hold as a matter of constitutional law that this result is required. See notes 127-43 supra and accompanying text.

330 See KRS §48.600(1) (Cum. Supp. 1984) (emphasis added).

331 L.R.C. v. Brown, 664 S.W.2d 907 Slip op. at 40.

332 Appellees' Response to Petition for Rehearing at 9, L.R.C. v. Brown, 664 S.W.2d 907 (Ky. 1984).

333 See 664 S.W.2d at 925 n.24.

334 Id.

65 2. The Budget Must Be a Bill, Not a Joint Resolution

The new legislation also required that the budget bill be a joint resolution.335 Furthermore, it provided that the budget resolution could not implicitly repeal any statutory provision.336 The obvious problem is that, should the General Assembly inadvertently overlook some obscure statute that was inconsistent with the funding level prescribed in the budget resolution, the inconsistent statute would not be impliedly repealed.

The Court also held that the Constitution requires that the budget take the form of a bill.337 The Kentucky Constitution requires the budget to be enacted by "a bill" which the Governor may veto line-by-line.338

3. Encompassing Federal Block Grants into the Budgetmaking Process

The 1982 block grant bill conferred upon the L.R.C. final authority for approval of block grant applications: "No state administering agency shall submit any block grant application to a federal administering agency unless approved by the legislative research commission. . ..''339 The Court invalidated this provision for two reasons.340 First, "[t]he

335 See KRS §48.300 (Cum. Supp. 1984).

336 See KRS §48.310 (Cum. Supp. 1984).

337 See 664 S.W.2d at 928.

338 KY. Const. §§47, 88. Concurrent resolutions, in Kentucky, must be enacted as statutes and presented to the Governor for veto. KY. Const. §89.

339 See KRS §45.3511(2) (Cum. Cupp.[sic] 1984).

340 The Court's holding made it unnecessary to respond to two L.R.C. arguments. One of the L.R.C.'s arguments in support of this bill was that federal law required this procedure. See Brief for Appellants, supra note 110, at 44. However, federal law neither authorizes nor requires legislative veto of block grant applications. See 42 U.S.C. §§9901-12 (1982). While it does require citizen participation via "public hearings" conducted by a legislative committee, see 42 U.S.C. §9904(b), there is a substantial distinction between "public hearings" and "legislative hearings.'' Legislative hearings envision a decision-making and information gathering process by the legislators, whereas public hearings envision a public forum for citizen participation, without any requirement of legislative decision-making following the hearing. Both the legislative history and regulations implementing the relevant federal statutes demonstrate that Congress was concerned with participation by the public, not with a veto by state legislators. See 47 Fed. Reg. 29, 474-75 (1982). See also 1981 U.S. Code Cong. & Ad. News 893.

The L.R.C. also argued that block grant funds are really state funds and therefore must be appropriated by the General Assembly. See Brief for Appellants, supra note 110, at 44. There is a split in authority as to whether federal grants are state funds subject to legislative power of appropriation or federal funds to be administered by a state's executive branch. Compare Shapp v. Sloan, 391 A.2d 595 (Pa. 1978) (federal funds subject to General Assembly's power to make appropriations) and Opinion of the Justices, 381 A.2d 1204 with Tribe v. Arizona Dept. of Adm'n, 528 P.2d 623 (Ariz. 1974) (legislature lacks authority); MacManus v. Love, 499 P.2d 609 (Colo. 1979) (legislature could create a health planning and development agency to appropriate federal monies); Opinion of the Justices, 378 N.E.2d 433 (Mass. 1978) (legislature may not appropriate

66 preparation and adoption of a budget is a legislative matter and the General Assembly may not delegate this law making power to the LRC."341 Second, the General Assembly may not circumvent the Adjournment Clause by attempting to "legislate through its agent, the [LRC]" during the interims between legislative sessions.342 By holding that the L.R.C. may not appropriate block grants, the Court had to determine the validity of the nonseverability clause of that bill, which provided: "If any other section of [this Act] is declared unconstitutional, any other statute to the contrary notwithstanding, no block grant money received from the United States government shall be spent or allocated unless appropriated by the general assembly in regular or special session."343

The trial court had invalidated this provision as an unconstitutional condition because, in practical terms, Kentucky's receipt of millions in federal funds between the 1982 and 1984 sessions of the General Assembly would have been jeopardized if the state government had spent this money illegally.344 Constitutionally, however, the provision was valid as an exercise of legislative "responsibility for the preparation and adoption of the state budget."345

The Supreme Court was able to moot the practical problem by waiting until the 1984 session convened to issue its opinion.346 The legislature could then respond to the problems created when the Court upheld the nonseverability provision.347 The result is that block grant monies, along with all other revenues, are now estimated and appropriated in the biennial budget.348

money received in trust from the federal government); and State ex rel. Sego v. Kirkpatrick, 524 P.2d 975 (N.M. 1974) (legislature lacks authority).

341 664 S.W.2d at 928-29. This holding comports with the holdings in the only other reported decisions on the issue. See Advisory Opinion In re Separation of Powers, 295 S.E.2d 589 (N.C. 1982); State ex rel. McLeod v. McInnis, 295 S.E.2d 633 (S.C. 1982).

342 664 S.W.2d at 928-29.

343 KRS §45.359 (Cum. Supp. 1984).

344 L.R.C. v. Brown, 664 S.W.2d 907 Opinion and Judgment at 14.

345 See 664 S.W.2d at 930.

346 Oral argument was held in March, 1983 and the opinion was rendered January 19, 1984, a few days after the 1984 General Assembly convened.

347 See 664 S.W.2d at 930.

348 KRS §45.305 (Cum. Supp. 1984).

67 E. Executive Reorganizations

Prior to 1982, the Governor was empowered by statute to reorganize the executive department, with certain statutory exceptions.349 The L.R.C. was permitted to comment upon interim reorganizations, but its comments did not have the force of law. 350 However, if the Governor's reorganization was not approved by the next General Assembly, it became inoperative.351

This procedure was altered by the 1982 General Assembly. Under (new) KRS section 12.028(2), the Governor's temporary reorganization plan was required to be "approved by the [L.R.C.]" before it could go into effect.352 The Supreme Court correctly held that, as with the veto of regulations, this statute purported to give the L.R.C.'s veto the same force of law as that of the General Assembly in regular session.353

The L.R.C. sought to justify this exercise of lawmaking power by asserting that an L.R.C. veto "does not constitute a legislative act since [the L.R.C. does] not affirmatively take any action, [but] merely react[s] to action initiated by the Governor."354 However, absent the provisions of that statute, an executive order reorganizing the executive branch would have legal effect the instant it was promulgated by the Governor. Thus, regardless of the label affixed to the L.R.C.'s action under the bill, the L.R.C.'s ability to refuse to approve a reorganization would have prevented executive branch action and would have had the force of law. However, a group of legislators may not give force of law to its action without complying with all constitutional provisions for the enactment of a statute.355

Furthermore, Brown v. Barkley leaves no doubt that, in Kentucky, reorganization is an executive power.356 Thus, once the General Assembly determines that the power to reorganize state government during the interims between legislative sessions must exist and enacts an enabling statute, Brown v. Barkley makes it clear that the exercise of that

349 See L.R.C. v. Brown, 664 S.W.2d at 930. See also Brown v. Barkley, 628 S.W.2d 616 (Ky. 1982) (Statute does not authorize Governor to transfer certain functions, personnel, and funds from Dep't of Agriculture to newly created Energy and Agriculture Dep't.).

350 664 S.W.2d at 930.

351 Id.

352 See KRS §12.028(2)(4) (Cum. Supp. 1984).

353 See 664 S.W.2d at 930.

354 Brief for Appellants, supra note 110, at 54 (emphasis in original).

355 See, e.g., Consumer Energy Council v. Federal Energy Regulatory Comm'n, 673 F.2d at 465- 68. See also General Assembly v. Byrne, 448 A.2d 438.

356 See 628 S.W.2d at 622.

68 power constitutes an executive function.357 The L.R.C. cannot exercise executive functions.358

In sum, the Governor has no inherent power to reorganize government absent an enabling statute.359 Accordingly, executive orders effecting reorganizations can, by statute, be rendered inoperative if not approved in the next session of the General Assembly.360 However, the legislature cannot condition the Governor's reorganization power upon approval by the L.R.C.361 Consequently, the Court invalidated that portion of KRS section 12.028(2) that vested the L.R.C. with power to veto executive reorganizations.362 The remainder of the reorganization statute continues in force.

CONCLUSION: IN PRAISE OF L.R.C. V. BROWN

No decision of the Kentucky Supreme Court prior to L.R.C. v. Brown involved as many historically significant constitutional issues. The Court's resolution of those issues produced an opinion of historic magnitude, not merely because it disposed of so many significant issues, but because it disposed of them in an extremely well-crafted opinion which convincingly explains the correctness of the Court's decision.

357 See 664 S.W.2d at 930.

358 See id.

359 See id. at 931.

360 Id. at 930-31.

361 Id.

362 See id. at 930.

69

70 CREATIVE CONSTITUTIONAL LAW: THE KENTUCKY SCHOOL REFORM LAW Bert T. Combs∗ Reprinted with permission from Harvard Journal on Legislation, Vol. 28, No. 2, Summer 1991

The news media from San Antonio, Texas to London, England have lauded Kentucky's School Reform Law enacted by the General Assembly in the spring of 1990.1 It was "[o]ne of the most comprehensive restructuring efforts ever undertaken by a Legislature," said Education Week.2 "The most sweeping education package ever conceived by a statute Legislature," noted the New York Times.3 Kentucky was singled out by President Bush as a state that used "creative thinking" to transform its public schools.4

The extensive publicity of the Kentucky School Reform Law5 seemed to be partially based on the surprise of the news media that a bold, revolutionary reform movement in education would be born in Kentucky. Excellence in education had never been a hallmark of the state. As Circuit Judge Ray Corns stated in his Findings of Fact, Kentucky's school system was one of the most severely deficient in the nation.6 Kentucky ranked nationally in the lowest twenty-five percent on almost every indicator of educational performance.7 Relative to other states, Kentucky was very near the bottom of the ladder in functional literacy, and it had one of the lowest percentages of citizens

∗ Partner at Wyatt, Tarrant & Combs, Mr. Combs was governor of Kentucky from 1959 to 1963. President Johnson appointed him to the U.S. Court of Appeals for the Sixth Circuit in 1967. He held this position until 1970.

1 See, e.g., "Kentucky's Bold Reforms," Express-News (San Antonio, Tex.), Apr. 4, 1990; "Kentucky Ahead of Fields in LMS," Education Guardian (London), July 3, 1990, at 1, col. 1; "The Kentucky Plan," Valley News (Hanover, N.H.), Apr. 3, 1990; "Starting Over," N.Y. Times, Apr. 8, 1990, at 34, col. 1; "Kentucky Radically Reforms Public Education, Courier-News (Bridgewater, N.J.), Apr. 20, 1990, at A7, col. 1.

2 "Lawmakers in Kentucky Approve Landmark School Reform Bill," Educ. Week, Apr. 4, 1990, at 1, col. 4.

3 Fiske, "Lessons in Kentucky, Teachers, not Legislators, Will Be Writing the Lesson Plans," N.Y. Times, Apr. 4, 1990, at B6, col. 1.

4 "Bush Lauds Kentucky for Efforts to Reform Schools," Lexington Herald-Leader, Apr. 5, 1990, at A8, col. 1.

5 Ky. Rev. Stat. §§156.005-156.990 (1990).

6 Council for Better Educ. v. Collins, No. 85-CI-1759, slip op. at 11 (Franklin Cty. Ct., Ky. May 31, 1988).

7 Bureau of the Census, U.S. Department of Commerce, Statistical Abstract of the United States 1986, at 134 (Table 217) (1985).

71 completing high school.8 Kentucky students also ranked very low in performance on standardized testing.9

The Kentucky School Reform Law was enacted in response to a Kentucky Supreme Court decision declaring the state's entire system of public schools unconstitutional.10 That decision was the culmination of a 1985 lawsuit led by sixty-six of Kentucky's 178 local school districts. The genesis of the suit itself involved a visit in early 1985 to my law office in Louisville by a small group of old friends with whom I had worked in the field of education during my term as Governor in the early 1960's.[sic] These people, who were still working in education, reminded me that I had at one time claimed to be Kentucky's education Governor. They also pointed out that I was now holding myself out as a top-notch lawyer. I had to admit that both of these statements were true. They further reminded me that Kentucky's school system, in addition to being inefficient, was completely inadequate at providing even basic skills to our children. There is no question that the state educational system was in imminent danger of becoming the weakest in the country.

My friends cited a litany of grave facts about education in Kentucky, highlighting that not a single school district in the state was financed to the level of the national average; indeed, many of the districts were in such dire poverty that there was no pretense that the school system was even minimally "efficient" as that term is used in the state Constitution. They also reminded me that Kentucky's General Assembly had never (at least within the memory of any living person) adequately financed the state's public schools. The result, according to them, was that the children of Kentucky were being deprived of their constitutional right to a decent and equal education and that we as onlookers were wasting our "seed corn" for the future.

The group concluded their discourse by saying that they wanted to bring a lawsuit against the Governor and the General Assembly to require them to provide an efficient system of public schools. More significantly to me, they wanted me to represent them in their proposed lawsuit.

As a name partner in one of Kentucky's largest law firms, I needed to sue the Governor and the General Assembly about as much as a hog needs a side saddle. It would be inevitable that the lead counsel in the lawsuit would be projected into the political arena and I was trying hard to forget that I had ever been in politics. I had found it difficult enough to make the transition from Governor to private attorney and was reluctant to expose myself again to the brickbats that could be expected on the political firing line. Being in Kentucky politics is a little like being in the Mafia – once in, it's next to impossible to get out.

I expressed my admiration and respect for these people who wanted to improve Kentucky's schools but explained that I was not in a position to represent them in their

8 Id.

9 Office of Planning Budget and Evaluation, U.S. Department of Education, "State Education Statistics Supplement, Student Performance and Resource Inputs, 1986 and 1987" (1988).

10 See Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989).

72 proposed lawsuit. I knew, of course, that there was very little money available and that as a practical matter, I would have to handle the case pro bono if I agreed to serve as counsel. My friends said that they understood my position, but nevertheless they persisted. To shorten this personal aside, I agreed after two or three more meetings to serve as lead counsel pro bono with the understanding that my staff would be paid minimal compensation for their services.11

That was the beginning of the lawsuit that produced one of the most dramatic and significant constitutional law decisions in the history of Kentucky. The Supreme Court of Kentucky relied upon section 183 of the Kentucky Constitution, an innocuous-looking, very succinct provision, in dealing a fatal blow to the entire scope of the educational framework of Kentucky. Section 183 of the Kentucky Constitution states: "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state."12 It was in light of that provision that the court scrutinized the allegations of the sixty-six property-poor school districts and then held: (1) that Kentucky's elementary and secondary system was inadequate and inefficient within the meaning of Section 183 of the Kentucky Constitution;13 (2) that the opportunity to obtain an adequate education is a fundamental right protected by the Kentucky Constitution;14 and (3) that the wide disparity in funding between the affluent districts and the poor districts was discriminatory to the children in the poor districts, violating the equal protection clause of the fourteenth amendment to the United States Constitution and section 183 of the Kentucky Constitution.15

Between the genesis of the lawsuit and the dynamic constitutional conclusion was an intriguing dialectic between constitutional theorizing and pragmatic legal strategizing. Hovering over both the constitutional implications and the legal in-fighting was, inevitably, the specter of political interests.

The most compelling question of constitutional law that arose dealt with the separation of powers issue. Section 183 of the Kentucky Constitution rests the obligation to provide an efficient system of state schools solely with the General Assembly.16 But how far could the judiciary go in telling the General Assembly to perform its constitutional obligation to provide an "efficient" school system? A political question of decisive proportions – never publicly discussed – was how would the court attempt to enforce its judgment if the General Assembly refused to obey its mandate? The fear of a constitutional "show-down" was heightened by Kentucky's uniquely strong language concerning separation of powers. The Kentucky Constitution provides in section 27 for a

11 Debra Dawahare, then an associate in my firm and now a partner, served as associate counsel with high distinction. Ted Lavit, a good lawyer with previous experience in school cases, also served very capably as associate counsel.

12 Ky. Const. §183.

13 Rose, 790 S.W.2d at 189.

14 Id. at 215.

15 Id. at 198.

16 Ky. Const. §183.

73 division of governmental powers among the legislative, executive, and judicial departments.17 At section 28 it emphasizes the division beyond a doubt: "no person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others . . . ."18

Strategy and procedural questions assumed even more importance in this case than in the usual one. We knew that the defendants would raise as a defense every technical obstacle known to the law. We would have preferred to file our case in federal court in view of the general belief that federal courts are less subject to political pressure than state courts. Kentucky state judges are elected by the people. But we were aware of the Texas case, San Antonio Independent School District v. Rodriguez,19 in which the United States Supreme Court held that education is not a fundamental right under the federal Constitution. We knew, too, that in Brown v. Board of Education, the Court held that "education is perhaps the most important function of the state and local governments";20 and that "such an opportunity [the right to an education], where the state has undertaken to provide it, is a right which must be made available to all on equal terms."21 We decided that we had no choice but to file the suit in state court. It was filed in the Franklin Circuit Court, which has statutory jurisdiction over state officials.22

Another troublesome question was who should be named as plaintiffs and defendants. There was no precedent in Kentucky and little elsewhere. We incorporated the sixty-six complaining school districts into a non-profit corporation called "The Council for Better Education." The corporation, seven other school districts, and twenty-two public school students suing as individuals were named as plaintiffs.

Even more difficult was the question of who should be named as defendants. The Governor was named by reason of her constitutional duty to make recommendations to the General Assembly and her control over the budget. The Superintendent of Public Instruction was named because of her constitutional authority to supervise the state school system. The State Board of Education, which had limited statutory authority over the school system, was also named as a defendant. The State Treasurer was named by reason of her presumed control over state funds.

It was obvious that the Kentucky General Assembly should be named as a defendant. The crucial question was how to get the General Assembly properly before the court in a manner that would not cause the case to become bogged down by procedural problems.

17 Id. §27.

18 Id. §28. Kentucky legend has it that when the state constitution was being written in 1791, the drafting committee journeyed to Monticello to confer with Thomas Jefferson, who advised them to include these words in the Kentucky Constitution.

19 411 U.S. 1 (1973).

20 347 U.S. 483, 493 (1954).

21 Id.

22 Frankfort, the state capital, is located in Franklin County.

74 The Kentucky Senate is composed of thirty-eight members; the Kentucky House of Representatives has 100 members. To name each of the 138 members as defendants would have made the Complaint very cumbersome. Moreover, the difficulty in serving the necessary subpoenas, notices, and other documents on 138 defendants would have made it impossible – because of the turnover in the General Assembly – to move the case along.

We fully expected that the members of the General Assembly would resent being sued and that they would rely on the separation of powers argument to the fullest extent possible. After considerable thought, we decided to present our case as a declaratory judgment action, emphasizing that the public officials were being sued only in their representative capacities and minimizing our request for specific relief against the members of the General Assembly.

We never expected this case to reach the point of confrontation between the General Assembly and the judiciary. We were concerned that if this should occur, the controversy between the court and the General Assembly would overshadow the merits of the plaintiffs' demands for improvement of the school system. Our objective was to obtain a declaratory judgment by Kentucky's highest court that the state's school system was inadequate and inefficient to the point of being unconstitutional and that the oath of the members of the General Assembly required that body to establish and maintain a system that was constitutional. Our concept of the plaintiffs' case was that such a declaration by the supreme court would generate sufficient awareness of the dire needs of the public schools that the pressure of public opinion would spur the General Assembly into action. We thought, too, that a supreme court decision could act as a buffer for those more timid members of the General Assembly ("limber twigs," in Kentucky vernacular) who panicked when the word "taxes" was even mentioned.

To obtain jurisdiction over the General Assembly, we named as defendants John A. Rose, President Pro Tempore of the Senate, and Donald J. Blandford, Speaker of the House of Representatives. We had scant precedent that this constituted legal service on the General Assembly as a whole. But we did have some authority for our position.23 The question of the sufficiency of the service on the General Assembly caused us trouble later in the supreme court. The dissenting judges thought that the members of the General Assembly were not properly before the court.24

The filing of the case angered some of the defendants. After all, they said, it is black- letter law that the state is an omnipotent creator of all entities of local government – from municipalities of all sizes to school districts. It is the state to whom they look for their

23 Seattle School Dist. v. State, 90 Wash.2d 476, 585 P.2d 71 (1978) (the Speaker of the House of Representatives was named as a defendant representing all members of the House); Barkley v. O'Neill, 624 F. Supp. 664 (S.D. Ind. 1985) (the plaintiff sued members of the United States House of Representatives by suing the Speaker of the House); Jackson v. Congress of the United States, 558 F. Supp. 1288 (S.D.N.Y. 1983) (both Houses of Congress were found to be proper parties as intervenors in a suit challenging the one Houses exercise of legislative veto); Synar v. U.S., 626 F. Supp. 1374 (D.D.C. 1986) (House Speaker O'Neill and Bipartisan Leadership group intervened as defendants to support an Act challenged on constitutional grounds).

24 Rose, 790 S.W.2d at 227.

75 very existence, their funding, and their abolition if the state so decides. The very idea that a lowly entity like a school district could rise up against its progenitor, file suit, and demand constitutional rights from it was politically preposterous and personally repugnant. It was a curious paradigm of Pygmalion – but wholly without the charm of Galatea's myth or the whimsy of Henry Higgins.

The legislators were indeed not pleased. The President Pro Tem of the Senate castigated the plaintiffs and their counsel on the floor of the Senate for having the temerity to ask the judiciary to encroach upon the domain of the General Assembly.25 The Senate passed a bill that no school funds could be used to pay the expenses of a lawsuit against the General Assembly; this enactment died in the Committee on Education in the House of Representatives.26 Judge Corns, to whom the case was assigned in the Franklin Circuit Court, overruled defendants' various motions to dismiss without much delay.27 Plaintiffs proceeded to prove their case.

The proof was both voluminous and overwhelming – almost without dispute – that although there were a substantial number of school districts in the state with adequate school systems, in the majority of the districts the schools were inadequate and inefficient.28 Moreover, the proof was clear and convincing that the wide disparity in funding between the affluent districts and the poor districts was discriminatory to the children of the poor districts.29 The proof was also clear that there was a direct correlation between adequate funding for a school district and the educational attainment of that district's school children.30

Circuit Judge Ray Corns handed down his Findings of Fact, Conclusions of Law, and Judgment in May 1988 and Supplemental Findings in October 1988.31 He held that the right to an adequate education is a fundamental right under the Kentucky Constitution; that Kentucky's common school finance system was unconstitutional and discriminatory; and that the Kentucky General Assembly had failed to provide an efficient system of common schools throughout the state as mandated by section 183 of the Kentucky

25 Statement made by Senator Eck Rose, President Pro Tem of the Senate, on the floor of the senate during Kentucky General Assembly, Regular Session, 1990.

26 S. 102, 1986 Ky. Leg., Reg. Sess., 1986. Each of the school districts forming the Council for Better Education had contributed 50 cents per school child in the district toward the cost of maintaining a lawsuit. This was sufficient for actual costs, but not for legal fees.

27 Various Motions of Franklin County Court; Council for Better Educ. v. Collins, No. 85-CI-1759 (Franklin Cty. Ct., Ky. June 8, 1989).

28 Council for Better Educ. v. Collins, No. 85-CI-1759, slip op. at 11 (Franklin Cty. Ct., Ky. May 31, 1988).

29 Id. at 12.

30 Council for Better Educ. v. Collins, No. 85-CI-1759, slip op. at 10 (Franklin Cty. Ct., Ky. Oct. 14, 1988).

31 Council for Better Educ. v. Collins, No. 85-CI-1759, slip op. at 10 (Franklin Cty. Ct., Ky. May 31, 1988 & Oct. 14, 1988).

76 Constitution.32 He directed the General Assembly to establish an "efficient" system of public schools throughout the state and to provide for adequate financing of the system – in short, to do what section 183 specifically required.33

None of the defendants appealed from Judge Corns' Judgment except the President Pro Tem of the Senate and the Speaker of the House. They, very properly, took the position that a judgment of this importance should not be permitted to become final without an appeal to the Kentucky Supreme Court.

The opinion of the supreme court was handed down on June 8, 1989.34 It was a block- buster five-to-two decision. The Court stated forcefully in the first paragraph that "the General Assembly has fallen short of its duty to enact legislation to provide for an efficient system of common schools throughout the state."35 Furthermore, it found that "the common school system in Kentucky is constitutionally deficient"36 and that "a child's right to an adequate education is a fundamental one under our Constitution."37 It continued in equally forceful prose: "the result of our decision is that Kentucky's entire system of common schools is unconstitutional . . . . [T]he General Assembly must provide adequate funding for the system."38 The Court withheld the finality of its decision until the adjournment of the General Assembly at its next regular session.39

The supreme court decision in Rose created big headlines in the Kentucky press, much speculation among Kentucky people, and very much consternation among Kentucky politicians. The people wondered aloud about what the General Assembly would do in response to the court's mandate and perhaps more importantly, whether the court decision required additional taxes. Most of Kentucky's successful politicians run from the word "taxes" like the devil runs from holy water.

People close to state government thought that the odds were about even that the General Assembly would either ignore the Court mandate or would give it lip service and then drag its collective feet in mock deference. Those people who thought the state's future depended on improvement in our educational system waited with concern and

32 Council for Better Educ. v. Collins, No. 85-CI-1759, slip op. at 8, 12 (Franklin Cty. Ct., Ky. Oct. 14, 1988).

33 Id.

34 Rose v. Council for Better Educ., 790 S.W.2d 186 (1989).

35 Id. at 189.

36 Id.

37 Id. at 212.

38 Id. at 215, 216.

39 Id. at 216. The Kentucky General Assembly meets in January every two years for sixty legislative days. The adjournment date for the next session was to be in the spring of 1990 from the vantage point of the opinion. Id.

77 almost bated breath (and an almost prayerful optimism too much wished to speak aloud) to learn of the General Assembly's reaction to the court's decision and mandate.

The General Assembly permitted the dust to settle, and then, to the surprise of most, and with the approval of even more, announced that it agreed with the supreme court's decision and that it would comply with the court's mandate. The miraculous was to become a reality.

Thus Kentucky school reform was born. Thus the General Assembly took a quantum step in the direction of progressive government and in the esteem of the thinking people of the state. The leadership of the General Assembly still faced difficult problems. The question remained whether a majority of the Assembly would follow the leadership's recommendation and pass a school reform bill that would require a levy of additional taxes. Also, Governor Wallace Wilkinson, who had succeeded Martha Layne Collins, had promised during his campaign that he would oppose additional taxes and had shown no indication that he would change his mind.40 Fortunately, Governor Wilkinson had also promised that he would improve the state's school system.41 It was generally thought that the General Assembly would not vote for an increase in taxes unless the Governor would go along.

When the General Assembly convened in regular session on January 1990, the leadership moved boldly ahead toward passage of a school reform package. Nationally recognized experts in the field of education were retained as consultants, and the leadership did the necessary homework to bring a majority of the membership on board. Near the end of the legislative session, the Governor and the legislative leadership did some bare-knuckle negotiating – after which the Governor recommended passage of the school reform bill, including the imposition of sufficient additional taxes to finance it.42 The Kentucky School Reform Law was then duly enacted into law.43

Legal historians will note that Kentucky's School Reform Law is a classic example of how this democracy of ours can work for progress when the heads of the three coordinate branches of government lay aside their egos and pride of turf and work together. Here, concerned citizens brought their message to the judiciary as well as to the General Assembly and the Governor. All three branches of state government, to their great credit, faced up to their constitutional obligations. The result was the enactment of a school reform measure that has been acclaimed as a model for other states. The Kentucky Judiciary, General Assembly, and the Governor deserve high praise.

Implementation of the School Reform Law lies ahead of us. The task is formidable and will not be accomplished overnight. But the people of Kentucky – especially those in the

40 "Wilkinson Says No to Additional Taxes during Campaign," Lexington Herald Leader, May 29, 1987, at A1.

41 Office of the Governor, Q.A. Improving Kentucky's Schools: A Conversation with Governor Wallace Wilkinson (on file with author).

42 "Senate Oks School Reform Tax Bill," Lexington Herald Leader, Mar. 29, 1990, at A1.

43 Ky. Rev. Stat. §§156.005-156.990 (1990).

78 field of education – are determined to make the new law work. A Commissioner of Education,44 who is given broad supervisory power under the new law, has been appointed and is moving aggressively and efficiently toward implementation.

We Kentuckians claim that there is more of the history and romance of this country of ours wrapped up in the place we call Kentucky than in any comparable space. There are also more contrasts. Those who are familiar with Kentucky history were not surprised that the state has produced a revolutionary school reform law. Kentucky often does the unusual.

During the years of civil war, Kentucky could not decide which side it was on. After the war was over, it joined the loser.

Kentucky produces more bourbon whiskey than any other state. Yet, until very recently, ninety of the state's 120 counties were dry. Christian County was wet, and Bourbon County was dry.

The Kentucky Constitution and Kentucky Statutes contain strict prohibitions against gambling, but Kentucky was the first state to uphold the pari-mutuel system of betting on horse races. Kentucky's highest court rationalized that when one places a bet on a horse at a racetrack, one is not gambling; one is instead making a contribution toward improving the breed of thoroughbred horses.45 And so Kentucky is the race horse capital of the world. The Kentucky Derby is the most spectacular two-minute event in the world of sports.

Both Abraham Lincoln and Jefferson Davis were born in Kentucky. Mary Todd Lincoln was born and raised in Kentucky; she had three half-brothers killed in the service of the Confederacy.

Kentucky's three major industries – bourbon whiskey, tobacco, and race horses – are considered to be "sin" industries and produce comparatively little revenue for the state. Whiskey and tobacco are heavily taxed by the federal government. This causes Kentucky to be a poor state in terms of tax revenue. Kentucky has been too poor to paint and too proud to whitewash.

Even though Kentucky is considered to be one of the most illiterate states in the Union, it has produced eight Justices of the United States Supreme Court and is the only state which has ever had three native sons serving on that Court at the same time: Fred Vinson, Stanley Reed, and Wiley Rutledge.46

Kentucky has now decided to become educated and has embarked on a crusade to accomplish that objective. Do not be surprised if we should, within the next decade,

44 Thomas C. Boysen, formerly Superintendent of San Diego County Schools, San Diego, California.

45 State Racing Comm'n v. Latonia Agric. Ass'n, 123 S.W. 681 (Ky. 1909).

46 See Webster's Biographical Dictionary 1525, 1243, 1296 (1972). The other five justices are Louis D. Brandeis, John M. Harlan, James C. McReynolds, Thomas Todd, and Robert Trimble. Id. at 186, 667, 950, 1475, 1485.

79 develop a first-class, world-wide educational system. And do not be surprised if, within the next decade, a panel from Kentucky should find itself studying teaching techniques at Harvard.

Most people would think that is impossible. But Kentuckians do not know that it is impossible. So we might just go ahead and do it. Kentuckians do know about the bumblebee. According to the laws of aerodynamics, a bumblebee cannot fly because its body is too big and its wings are too short. But the bumblebee does not know that. So it just goes ahead and flies. We intend to make Kentucky's school reform program fly.

80 BERT COMBS & THE QUIET REVOLUTION: THE QUEST FOR A NEW KENTUCKY POLITICS, 1955-1960 Alan Lytle∗ Reprinted with permission.

On December 8, 1959, Kentucky's political leaders gathered in front of the state's capitol in Frankfort to witness the inauguration of Kentucky's fiftieth governor. Waiting to take the oath of office that day was Bert T. Combs, an eastern Kentucky judge and a man who historian Thomas D. Clark once described as having a "Lincolnesque quality about him."1 Combs had handily won the general election in November, but the real battle had been in the Democratic primary, which he won by 33,000 votes over Harry Lee Waterfield, who was then Kentucky's Lieutenant Governor. But every as much Combs's opponent was Governor Albert Benjamin "Happy" Chandler.[sic] Under Kentucky's constitution, Chandler could not serve consecutive terms, and hence he had anointed Waterfield as his successor. Having twice been the state's governor and once its United States Senator, Chandler was a legendary figure in Kentucky politics, but while revered by many in the state's faction-ridden Democratic Party, he was also despised by opponents who saw him as a political leader bent on personal triumphs while leaving the state's political system mired in a politics of favoritism and inertia. Combs had challenged Chandler for the nomination in 1955 and had lost badly, but in 1959 defeated Waterfield in a bitterly fought campaign.

In winning the nomination, Combs had united Chandler's opponents behind him, and the most important of Chandler's opponents was Barry Bingham, the publisher of the Louisville Courier-Journal and the Louisville Times and a nationally recognized leader among American liberals during the 1950s. When in 1937 he succeeded his father as the publisher of the Courier-Journal – the state's most influential newspaper – Bingham had devoted its editorial page to the cause of better government and economic uplift for the Commonwealth of Kentucky. When Happy Chandler, then in the midst of his first term as governor, began attacking the New Deal, Bingham and his newspapers stood firmly behind Rooseveltian liberalism and openly allied with Chandler's opponents. Chandler, Bingham's newspapers argued, embodied the worst features of Kentucky politics, and two decades later these newspapers would play a crucial role in Combs's 1959 triumph over Chandler and Waterfield.

Combs's victory would prove to be one of the most important in Kentucky's history. In place of Chandler's personal style of politics and governing, Combs embraced a programmatic liberalism that sought major changes. Unquestionably bolstered by a newly enacted sales tax which represented a windfall in new revenue, over the next four years, his administration would achieve an unprecedented expansion of public school funding and school construction, the creation of a community college system, the

∗ Alan Lytle received his Masters Degree in U.S. History from the University of Kentucky in December, 2015. Since 2002 he has served as News Director at WUKY Radio, Lexington's NPR News Station. Over that span he and his team of reporters have captured numerous local, state and national journalism awards. WUKY is Kentucky's oldest non-commercial, public radio station, now in its 76th year of service to the community.

1 Kentucky New Era, December 5, 1991.

81 development of an expanded system of state parks, the building of hospitals, highways and roads, new initiatives to render state government more transparent and accountable. In the view of many historians, Combs's administration was one of the most successful of the twentieth century. Tracy Campbell and James Klotter both referred to the former eastern Kentucky judge as "one of the most progressive governors" the state had ever seen. And according to biographer George Robinson, Combs "fostered a new spirit in Kentucky (by) inspiring people to be proud of their state, to believe in themselves, and to look to the future with optimism about their fortunes and the fortunes of the commonwealth." 2

The aim of this paper is to explore the rise to power of Bert Combs and the crucial role of Barry Bingham and Bingham's newspapers in facilitating Combs's 1959 victory. In addition, the paper will examine the nature and the importance of the Combs-Courier- Journal/Times relationship during the first year of Combs's gubernatorial term. The paper seeks to explain how it was that Combs, as an eastern Kentucky judge from a family of modest means, could win the support of the patrician Bingham, how Combs could construct a coalition capable of defeating the powerful Chandler faction, and how Combs could introduce into Kentucky politics a new style of political leadership and governance in a state wedded to localism, anti-statism, low taxes, and personal politics.

Kentucky Economy and Political System

In order to explore the significance of Kentucky's 1959 election, it is first necessary to grasp how the state's economy and political system had struggled with the challenges of the twentieth century. For most of the century's first five decades, Kentucky had fared poorly in measures of economic development, poverty, and education. And its political system was rarely able to foster meaningful change. While the dynamic parts of the American economy were increasingly geared to new technologies and industries tied to rapidly growing cities, Kentucky remained a largely agrarian, rural state.

Following the Civil War, Kentucky's political system came to be dominated by what political scientist Penny M. Miller described as a traditionalistic political culture. This culture, she argues, was southern in identity, agrarian in nature, inherently conservative, highly resistant to change, unappreciative of educational and intellectual pursuits, and marked by "a substantially hierarchal society as part of the ordered nature of things." Aside from providing basic services, government's acceptable function was a "keeper of the old social order and maintainer of the status quo." Political leadership was left to men from well-connected families, who promised to keep taxes low and government intrusion to a minimum.3 Under this philosophy, a county-centered system of government flourished. Historian Robert Ireland described this system as one hundred twenty "Little Kingdoms" comprised of a "de facto leader" from local elites, whose authority was measured by his political influence (usually the county judge, the county attorney, or sheriff). But such authority, according to Ireland, usually proved to be temporary and incomplete, and offered no substitute for constitutional power." 4 The

2 George Robinson, ed., Bert Combs The Politician: An Oral History (Lexington: University Press of Kentucky, 1991), 2.

3 Penny M. Miller, Kentucky Politics and Government: Do We Stand United? (Lincoln: University of Nebraska Press, 1994), 3-9.

82 result was a highly fragmented political system, and this fragmentation was compounded by the state's regional divisions. According to Miller, "Kentucky's mountains, isolating eastern Kentucky, its hostile regions, its fear of urban Louisville and its resistance to higher taxes for improvements for transportation and education, made a modern, complex economy difficult to develop." 5

Political Leadership – Divided We Stand

Perhaps no truer words were ever composed than that of Kentucky poet James H. Mulligan who in 1902 pronounced "politics – the damndest in Kentucky."6 Mulligan made his famous observation three years after the state's disputed gubernatorial election of anti-railroad populist Democrat William Goebel and his subsequent assassination, presumably by Republican opponents. This episode had two important consequences for Kentucky politics. One was to weaken the state. And a second was to spark bitter factionalism with the now-dominant Democratic Party. Miller said this bitter in-fighting deterred governors from making significant changes.

Time after time, as soon as one democratic faction occupied the governor's mansion, the other faction – ignoring the normal influences of political party – produced non-ideological roadblocks and sought to build for the next primary election. For over a century, factional leaders allowed the state to drift by, focusing on ways and means to prevent the winning faction from reaching its goals. The traditional regional conflicts; a shared resentment of taxes; the clash of mountain, rural and urban cultures; and a century-old hostility toward higher education made factional failures certain because the political risks of dramatic actions by winning candidates were insuperable – or seemed to be. Kentuckians lived in the certain knowledge of this cultural limitation on their political institutions. 7

In addition to the destructive factionalism, governors were weakened by the constitutional provision prohibiting them from serving consecutive terms, which tended to render them "lame ducks" fairly early in their terms. Intra-party factionalism required a governor to expend tremendous energy and political capital grooming a successor.

Kentucky's economy, meanwhile, was tied to agriculture and to industries that faced serious challenges. According to historian George Blakey, during "the frenzied growth of the late 1920's[sic]," Kentucky lagged far behind the rest of the nation. "Progress and prosperity in the commonwealth were largely an urban phenomenon and Kentucky was still mostly rural…by 1930 approximately 70 percent of Kentuckians still lived in the countryside." 8 Kentucky's industrial sector which included lumber, flour mills, and soft

4 Robert M. Ireland, Little Kingdoms: The Counties of Kentucky, 1850-1891 (Lexington: University Press of Kentucky, 1977), 147-148.

5 Miller, Kentucky Politics, 28-29.

6 James C. Klotter, Kentucky: Portrait in Paradox, 1900-1950 (Kentucky Historical Society, 1996), 189.

7 Miller, Kentucky Politics, 7.

83 coal mining, fell into decline. Distilling and brewing, once thriving industries in the state, were largely shuttered with the start of prohibition in 1920. With its high percentage of unpaved roads and spotty electrification, Kentucky also failed to attract significant outside industrial investment. And with the exception of burley tobacco, which benefitted from increasing consumer demand for cigarettes, Kentucky farmers faced unprofitable prices. 9

These conditions were made substantially worse with the start of the Great Depression. Between 1929 and 1933 more than one hundred Kentucky banks closed. By 1933 more than 20,000 workers had lost their jobs. Per capita annual income fell from a pre-crash $371, slightly more than half the national average, to $198 by 1933. Kentucky agriculture, the state's largest economic sector, also suffered as farm income fell from $69 million in 1930 to $38 million in 1932. Kentucky tobacco farmers saw their receipts drop by half during these years.10

FDR's New Deal represented hope for thousands of Kentuckians. According to Blakey:

Those who were hurt by bank closings and the loss of their savings, or were threatened by foreclosures on their property, or lacked a decent home in which to live, or worried about unemployment or retirement, the New Deal provided some escape from those fears and problems. FDIC, HOLC, FCA, FHA, and Social Security now protected, insured, eased and alleviated. In many cases such protection meant a diminished role for the family, private sector, and local and state government, and an increasing role for national government. In most cases it meant additional taxes and bureaucracy and a new partnership between state and federal officials. Social Security taxes, in particular, drained considerable money from both employees and employers and contributed to the economic recession of 1937-1938. But in all cases it meant great change.11

Klotter and other historians agree that the New Deal "drastically changed for the rest of the century the relationship between the people, the state, and federal government." 12 Thomas D. Clark credited the New Deal for: "the awakening of a spark of interest in education, a transformation of land conservation practices and rural electrification, and new regulations to stabilize Kentucky banks and lending institutions." 13 And Blakey said New Deal programs resulted in "14,000 miles of improved highways, 9,000 public buildings, and 600 projects that included the Student Union at the University of

8 George D. Blakey, Hard Times and New Deal in Kentucky, 1929-1939 (Lexington: University Press of Kentucky, 1986), 6.

9 Ibid., 8.

10 Ibid., 23.

11 Ibid., 54.

12 Klotter, Portrait in Paradox, 249-254, 260.

13Al Smith, Kentucky Cured: Fifty Years In Kentucky Journalism (Charleston: The History Press, 2012), 103, 104.

84 Kentucky, the state prison at LaGrange, the gold depository at Fort Knox…and the massive Kentucky Dam enterprise by T.V.A." 14

The New Deal and Kentucky Politics

Within Kentucky's Democratic Party, the state's predominantly Democrat congressional delegation welcomed federal funds and assistance. And according to Klotter, Kentucky needed every penny: "Kentuckians, old and young, rich and poor, black and white struggled to shake off the effects of the Depression…By 1937 some 143,000 people in the commonwealth remained out of work, while 54,000 more received unemployment only by virtue of the federal government." 15

Kentucky's Democratic governors took a more ambivalent attitude toward the New Deal. While they accepted the federal aid, they feared what this would mean for their own autonomy and political power. According to Blakey:

Kentucky officials frequently found New Deal measures out of step with many of their southern, rural and states-rights traditions. New Deal incentives and federal regulations clashed with many time-honored customs. Loyalty for patronage jobs increasingly went to Washington instead of Frankfort. This dilemma was not exclusive to Kentucky, but the commonwealth's peculiar sensitivity to politics made it especially aware of the changes taking place in the balance of power during this decade.16

Governor Ruby Laffoon, (1931-1935) disliked ceding power to the federal government. He also found the pace of New Deal reforms incompatible with the legislative routine of state government, since the Kentucky General Assembly only met for a few days every other year.

Laffoon's successor was his lieutenant governor and rival A.B. Chandler. He initially supported New Deal programs and praised the assistance provided by federal agencies in helping the state cope with a devastating drought in 1936 and the historic Ohio River flood the following year. But when the ambitious Chandler decided to challenge Barkley for the senate seat, he became a New Deal critic. In campaign speeches Chandler claimed "it isn't possible to spend your way to prosperity." The self-described conservative explained, "I never did see how they were going to run this country by giving it away. Spending money you haven't got and nobody else has got, and going into debt." 17 Chandler's move drew the wrath of the state's most influential newspaper, the Louisville Courier-Journal which editorialized:

Chandler seeks to displace the man who is the majority leader of the Senate and the President's first assistant to that body…to plunge himself

14 Ibid.

15 Klotter, Portrait in Paradox, 260.

16 Blakey, Hard Times, 168.

17 Albert B. Chandler and Vance H. Trimble, Heroes, Plain Folks, and Skunks: The Life and Times of Happy Chandler (Chicago: Bonus Books, 1989), 136.

85 into the national picture, a novice, who would have no importance to Congress, no membership on vital committees, no standing beyond that of a freshman in the national school of politics.18

With the help of FDR, organized labor and national New Deal figures, Barkley prevailed by 71,000 votes. When M.M. Logan, Kentucky's other U.S. senator died in 1939, Chandler resigned and assumed Logan's seat.19

Postwar Kentucky

The immediate post-war period produced, according to historian Richard Abrams, "unprecedentedly rapid and broad growth in affluence (arriving with such) suddenness and with such magnitude as to constitute a revolution in its own right." The nation experienced, he argued, "the emergence of the mass society from poverty and modest means to opulence." 20 In Kentucky, however, the pace of change was much slower. During WWII, as Jim Klotter has noted, "the commonwealth and its people generally had prospered economically during the conflict. Personal savings had grown, people were more sophisticated in outlook, and conditions were ripe for further change." 21 But even so, in the years after 1945 Kentucky lagged behind the nation and many Kentuckians were mired in poverty.

A 1956 survey undertaken by researchers at the University of Kentucky offers a valuable snapshot of the state's many failings. Entitled Health and Demography, the report was prepared by sociologist Thomas R. Ford and a team of social scientists in order to assess the general health and well-being of Kentucky's three million citizens. The report noted that there had been a "marked change" in the Kentucky economy in the 1950's[sic] "involving an acceleration of the transition to increased dependence upon manufacturing, commercial, and service industries." Manufacturing had overtaken agriculture as the state's top source of employment, but even so, much of the state depended on agriculture and mining. The personal incomes of Kentuckians also lagged behind the rest of the country with "a third of Kentucky families equal to or greater than the national average, while the incomes of more than a fourth were less than half the national average." Overall, the report argued, Kentucky's economy was "substandard at every level." 22

The state's system of education was a major problem. "Kentucky stands near the bottom of the list of the states on practically all measures of educational achievement, a fact which holds serious social and economic implications," the researchers warned. "It is of no small consequence that more than 225,000 adults in the state in 1960 were

18 Louisville Courier-Journal, July 2, 1935.

19 Blakey, Hard Times, 168-189.

20Richard Abrams, America Transformed: Sixty Years of Revolutionary Change (New York: Cambridge University Press), 31-34.

21 Klotter, Portrait in Paradox, 263.

22Thomas R. Ford, Health and Demography in Kentucky (Lexington: University of Kentucky Press, 1964), 100-123.

86 'functional illiterates' by virtue of having less than five years of schooling, and nearly 38,000 had received no schooling at all." 23

The problems of health care were especially serious. First, the researchers found that "the health of the people of Kentucky…generally appears to measure up to national standards," with increased life expectancy, reduced infant mortality, and fewer deaths due to communicable diseases. This change was due in large part to mass immunization, public health measures, and improved medications; however, pneumonia and tuberculosis remained major concerns, and "the prospect for the immediate future is for an increase in the number and proportion of deaths caused by degenerative diseases of the heart, arteries, and central nervous system," cancer rates were also predicted to rise.24

The Health and Demography report reached two significant conclusions: "It is little short of appalling that so little effort has been expended to provide the kinds of health information needed for the effective planning and evaluation of health programs. In particular there is a need for periodic reporting of the incidence and prevalence of diseases and of physical and mental disabilities." Secondly, "the most serious health deficiency of Kentucky's population would appear to be in the area of 'social well-being,' in the ability to participate fully and effectively in the kinds of occupational positions and social relationships to be found in our present day society." It therefore recommended that the highest priority of any program to promote the general welfare must include opportunities "for Kentuckians to develop their innate capacities for intellectual and social achievement to the fullest…this may well be the wisest investment in the long run for improving also the physical and mental health of the commonwealth." 25

Toward a Post-War Society

The issues raised in Ford's Health and Demography report were not new ones. In fact, since the end of World War II, there had been a series of commissions and public reports documenting Kentucky's many needs and appealing for state action. One of these was produced by a group of University of Kentucky faculty in 1945. Entitled Kentucky: Designs For Her Future, the report was organized by the sociologist Howard Beers. Beers and other contributors pointed to the state's low pay for its teachers, the need for hospitals and libraries, the inadequate care for the mentally ill, and a need for the revision of the state's 1891 constitution. Perhaps more importantly, they argued that the state's voters were too willing to accept the status quo rather than risk change.

A second and more extensive study of the state's needs was sponsored by the Republican governor Simeon Willis, who created in 1945 a Postwar Advisory Planning Commission. The commission included state officials, businessmen, educators, and representatives of other groups from throughout the state. It prepared a series of reports that proposed consolidating school districts, raising teacher salaries and certification standards, lengthening the school year, providing new sources of revenues for public schools and reorganizing governance of the state's colleges and universities.

23 Ibid., 71.

24 Ibid., 128-129.

25 Ibid., 141.

87 The commission also recommended sweeping changes to state government. These included drafting a new constitution and also creating a State Planning Agency, a Building Code Council, a State Housing Commission to deal with the estimated 177,000 substandard non-farm dwellings, an Area Planning and Zoning Commission, a full-time legislative research bureau, an office for coordinating veterans' affairs, more funding for roads and airports, and a stronger State Highway Patrol. Health and environmental recommendations included establishing health offices in some sixteen Kentucky counties that did not already have them, stricter controls on water pollution, reforestation of stripped coal lands, and the creation of more parks across the state. Business and labor concerns included increasing the minimum wage, improving diversification of industry particularly outside of Louisville and the creation of a state chamber of commerce. For agriculture the commission recommended new incentives for farmers to embrace modern farming techniques and the development of new strains of tobacco.26

A third blueprint for a new Kentucky appeared in 1949 and was the work of the Committee for Kentucky. Headed by Louisville businessman Harry Schacter, the Committee for Kentucky was a broad, non-partisan coalition with members from business, education, labor, black, women's and other civic groups. Formed in early 1944, the committee represented the longest, sustained effort to affect change in Kentucky. It prepared a dozen reports that were distilled in the 1949 book, Kentucky on the March. The committee had three main objectives:

1) To raise Kentucky's level of education, health, welfare, and economic opportunity.

2) To give a stronger helping hand to those of our unfortunates…to give positive affirmation that we were indeed our brother's keeper.

3) To make democracy a vital and living force in our daily lives…in every town and hamlet of the state.27

These objectives would be achieved by:

1) Getting the facts much like a doctor gathers information on a sick patient.

2) Making the facts known to the people, without sugarcoating, minimizing, or exaggerating, believing that Kentuckians can take hard truths.

3) Stimulating communities to organize and take action to develop their own plans for progress.

4) Making it clear to the people that if they wanted progress they would have to pay for it in thought, work, and money.

5) Making people understand the consequences of failure: regression, not just the status quo. 28

26 Klotter, Portrait in Paradox, 338.

27 Harry W. Schacter, Kentucky on the March (New York: Harper & Brothers, 1949), 16-17.

88 Schacter's group particularly believed that once Kentuckians were made aware of actual conditions, pride would prompt them to demand progress.

Among the committee's more significant findings: Kentucky per capita income in 1943 was 59 percent of the United States average; between 1940 and 1943, 250,000 people (or one out of every four Kentuckians) left the state to find work elsewhere – many more than the war could account for; 63 out of every 100 Kentucky children received an elementary education; only Arkansas had a lower percentage than Kentucky of adults who graduated from high school; the state had 14,000 active cases of tuberculosis and only 800 hospital beds to care for them; only two states had a higher death rate from the disease; in one area of the state 11,500 people depended upon one doctor, there were more than 300 communities without public water supply systems, and the state had only 750 institutions to care for an estimated 3,000 mentally ill individuals.29

The Committee for Kentucky's major recommendations included: constitutional revision, increased state support for education – especially rural schools, raising teacher salaries, lengthening the school year, a program for better medical care for rural people and expansion of the program for building and maintaining rural highways and farm-to- market roads, expedited rural electrification, more and better equipped airports, a reduction in property tax rates, tougher mine safety laws, improved workmen's compensation laws, raising the minimum wage, and state laws prohibiting racial segregation.30 The panel also boldly put a dollar figure on what it believed would be necessary for the state to catch up with her neighbors. It proposed $100 million in new capital expenditures, aided by $51 million per year in new revenue to be financed by either raising income taxes or implementing a sales tax.31 Ever the optimist, Schacter maintained that through its work the Committee for Kentucky had sparked change: "we see a people aware of their shortcomings and determined to do something about them…a leadership…recently pulling apart now pulling together for a common objective…community groups all over the state beginning to think together…and permanent organizations beginning to be firmly established to bring a better day to Kentucky." 32

The Kentucky on the March project reflected another significant effort to identify needs and challenges facing Kentuckians at mid-century and denoted the presence of important figures and organizations within the state committed to change. And the most important among these was Barry Bingham, owner of Kentucky's only media empire, which was comprised of the Louisville Courier-Journal, the Louisville Times, and the 50,000 watt WHAS radio. Unlike the Postwar Planning and Advising Commission and the Designs for Her Future studies, which garnered meager media attention, the Committee for Kentucky enjoyed substantial vocal, financial and administrative support from Bingham's newspapers and radio station, assuring continual and favorable publicity. Schacter particularly acknowledged the mogul's importance to Kentucky on

28 Ibid.

29 Ibid., 4-8.

30 Ibid., 115-127.

31 Klotter, Portrait in Paradox, 337.

32 Schacter, Kentucky on the March, 169.

89 the March; characterizing Bingham as "a tower of strength, a granite pillar, a rock of Gibraltar, and a great citizen of Kentucky." 33

But Barry Bingham was much more than a leading citizen of the commonwealth. As the son of FDR's Ambassador to England, an administrator of Truman's Marshall Plan, and a national voice in liberal Democratic politics through his involvement in the influential group, Americans for Democratic Action, Bingham had the advantage of viewing the state's problems and challenges from a national and global perspective. He used his editorial pages to advocate for greater appreciation and support for the arts and education, a commitment to nature conservancy and historical preservation, and above all, a new type of political leadership in Kentucky. The state needed, he insisted, a programmatic problem solving approach to its ills rather than the autocratic, demagogic, and miserly approach to governance displayed by figures such as Happy Chandler. According to Bingham biographer Samuel W. Thomas, Barry "was a keen and interested observer of politics at all levels, he never aspired to public office. He used his influence to promote the public good and those people he believed would affect positive and useful change." 34

The journalists Barry Bingham recruited to his newspapers shared these progressive beliefs and helped articulate them across the state. Notable Bingham hires included editorial writer John Ed Pearce, Times editors Tom Wallace and Norman Isaacs, and Courier-Journal editor Mark Ethridge, who in the foreword of Kentucky on the March, wrote: "…no better purpose can be served than to give all the people of the state a complete picture of the society in which they live. Nothing so directly strikes at lethargy; nothing so quickly bears home the economic waste involved in poor education, a high disease rate, and failure to protect natural resources; nothing so quickly flicks the pride and stimulates imagination and action." 35

Any effort to produce significant economic and political change in Kentucky faced the formidable challenge of altering a political system that favored the status quo. In the years following World War II, the state's Democratic Party was bitterly divided between supporters of Earle Clements, who was governor from 1947 to 1950 and U.S. Senator from 1950 to 1956, and Happy Chandler who won a second term as governor in 1955. Clements was an ardent New Deal/Fair Deal Democrat. Journalist and political observer Al Smith noted that during the Clements administration, the state "built or funded eight thousand miles of roads, took over maintenance of six thousand more, and launched a massive agriculture and industrial development effort. Kentucky also outspent every state but New York in developing parks." 36 Chandler was a fiscal and social conservative.

The differences between Earle Clements and Happy Chandler went beyond ideology. Once boyhood friends, the two men had come to loathe one another. Their approach to

33 Ibid., 84.

34 Samuel W. Thomas, Barry Bingham: A Man of His Word (Lexington: University Press of Kentucky, 1993), 6-9.

35 Schacter, Kentucky on the March, xi.

36 Al Smith, Wordsmith: My Life in Journalism (Lexington: Clark Legacies LLC, 2011), 322.

90 building and maintaining political power could not have been more different. Clements worked behind the scenes, usually at the county level, while the ebullient Chandler never missed an opportunity to grab the spotlight and headlines. Louisville Courier-Journal editorial writer John Ed Pearce observed of the Chandler-Clements dynamic:

Thoughtful, cautious, almost taciturn, Clements had built – through the careful use of political power to help friends and frustrate enemies – a tight, tough organization based in western Kentucky but with strongholds also in the mountains of eastern Kentucky. The Chandler faction had strong points, especially in central Kentucky, and as long as Happy remained active, he had the allegiance of able leaders in many counties. But the organization was built around his personality, and tended, in cult fashion, to wither without him. It has been said, with some considerable truth, that Clements didn't care who was governor as long as he could run the state, while Chandler didn't care who ran the state as long as he could be governor. Clements saw campaigning as a necessary burden while Chandler reveled in it. 37

Given the highly personal and combustible nature of this rivalry, political contests between the Chandler and Clements factions were usually more blood-sport than campaigns.

Chandler's plain-spoken yet flamboyant style particularly resonated with rural and small town voters which comprised the majority of the electorate in Kentucky. Historian Tracy Campbell described Chandler as one of those larger than life politicians who "hugged adoring women, kissed babies and entertained campaign crowds with his hearty rendition of My Old Kentucky Home." 38 Political scientist Malcolm Jewell concluded that Chandler's witty, sarcastic speeches, interspersed with songs and marathon handshake sessions made him "the most colorful Kentucky politician of the twentieth century." 39 Importantly, observed Penny M. Miller, "The roots of populism were transformed by Chandler into something far more openly conservative. Government's role was limited to providing roads, schools, welfare; all taxes, and particularly the sales tax, were anathema." 40

The Louisville Courier-Journal and the Louisville Times generally supported the Clements faction, though it had little love for Clements himself. Chandler, meanwhile, was the symbol of everything that was wrong with Kentucky politics. In one scathing editorial, John Ed Pearce wrote: "It has often been said that Happy gets bored easily, that he likes to run for office but doesn't care much for serving in it, and I suspect there is quite a bit of truth in that…There is something about the man's aching desire to be President that is as wistful as a child's wish to fly to the moon, and about as likely of

37 John Ed Pearce, Divide and Dissent: Kentucky Politics: 1930-1963 (Lexington: University Press of Kentucky, 1987), 59.

38 Tracy Campbell, Short of the Glory: The Fall and Redemption of Edward F. Prichard Jr. (Lexington: University Press of Kentucky, 1998), 46.

39 Malcolm E. Jewell and Everett W. Cunningham, Kentucky Politics (Lexington: University of Kentucky Press, 1986), 3.

40 Miller, Kentucky Politics, 30.

91 achievement." 41 Far too often in Kentucky politics, the paper argued, men like Happy Chandler ran for political office for the wrong reasons, did not serve the public once they attained power, and relied too heavily on their personal charm and charisma while delegating essential duties to political cronies. In several instances Chandler was accused of bolting the Democratic Party, giving aid and comfort to Republicans when his faction lost primary contests.

The resurgence of the Kentucky Republican Party exacerbated the factional divisions of the Democrats. In 1946 Pulaski County judge John Sherman Cooper won a special election for the U.S. Senate, becoming only the third Republican ever to ascend to that office. He lost the seat to a Democratic challenger a short while later but triumphed in another special election in 1952, riding the national momentum provided by Eisenhower and other GOP heavyweights. Cooper lost a 1954 election to former Vice President Alben Barkley but other GOP candidates including Thruston Morton, and John Robsion Jr., won seats in the House of Representatives. These and other electoral triumphs led one political historian to conclude that the GOP had "reasserted itself as one of the stronger state Republican parties in the South." 42

In the 1955 gubernatorial election the two Democratic factions squared off in the primary. Albert Benjamin Chandler was determined to recapture "the best job I ever had – governor of Kentucky." 43 The kingmakers in the Clements faction, which included Governor Lawrence Wetherby and Lieutenant Governor Emerson "Doc" Beauchamp, decided to offer voters a fresh face with no record to attack, as an alternative to the flamboyant, yet polarizing Chandler. Several names were discussed before Clements put forth a young man he'd been mentoring in Floyd County.

Bert Thomas Combs, the oldest of six children, was born in 1911 in the mountain community of Manchester in Eastern Kentucky. His mother was a school teacher, and his father was a part-time farmer and logger, was also active in local Democratic politics in Republican-dominated Clay County. With help from friends and neighbors, Combs was able to enroll in Cumberland College, and then later managed to save enough money to attend law school at the University of Kentucky. After graduating in 1937, he returned to the mountains to begin a law practice, before enlisting for military service in 1942.

During the war, Combs was an officer in the Judge Advocate General Branch where he helped assemble evidence against Japanese war criminals. After the war, Combs resumed his law practice in Prestonsburg, Kentucky. In 1947 he organized support in the gubernatorial campaign of Earle Clements. Three years later with Clements' backing, Governor Wetherby appointed Combs to fill a vacancy on the Court of Appeals. As a judge, Bert Combs earned a reputation as a fair, intelligent and honest adjudicator.44 With the backing of Clements and Wetherby he agreed to challenge Chandler.

41 Louisville Courier-Journal, January 26, 1957.

42 John Paul Hill, "The Forgotten Campaign: The 1955 Kentucky Gubernatorial Election," The Filson Historical Club Quarterly, Volume 75, no. 1, (Winter 2001), 85-108.

43 Chandler and Trimble, Heroes, 244.

44 Van Hook Manuscript, 1959, Folder 1, Box 123, Bert T. Combs Papers, University of Kentucky Special Collections, Lexington, KY.

92 The contrast between Combs, who was young and inexperienced, and Chandler, a veteran of many statewide campaigns was stark. In the primary campaign Chandler dismissed Combs as "the little judge," and attacked "Clementine and Wetherbine." For his part, Bert Combs was a less than dynamic public speaker with a distinctly high- pitched mountain twang, who was not comfortable before large crowds, and may have committed a fatal error during his opening night rally by suggesting that a sales tax may be necessary to fix the state's fiscal ills. This very public admission played right into the hands of Chandler.

In the campaign the Courier-Journal sided with the relative unknown Bert Combs over Chandler. "We like the confidence Combs inspires," the editors said in a June 24th column. "He has not tried to sell the idea that there is any magic formula for meeting the heavy financial needs of the state…better roads, better schools and teacher salaries, better welfare services, better state hospitals and prisons, and he admits that new money must be found to provide the level of operations our state must obtain." Conversely, the editors decried Happy Chandler as "a very promising politician. He will promise almost anything to anybody." They surmised that "he is misleading us one way or the other. Either he does not mean to perform on his pledge of increased state services, or he does not mean to perform on his pledge of no new taxes." 45

Bingham's newspapers were more anti-Chandler than pro-Combs in 1955. In spite of their collective distaste for the heavy-handed, behind the scenes tactics of his political mentor Earle Clements, a politician whom the paper could neither influence nor control, the editors saw an inexperienced Combs as an acceptable alternative to Chandler and they did all they could to push the relative newcomer across the finish line. Ultimately, Chandler's personal charm and charisma proved insurmountable as he captured the nomination by some 18,000 votes, and then cruised to victory over Republican challenger, Edwin R. Denney. 46 But the 1955 primary defeat taught Combs valuable lessons that he would put to use in subsequent campaigns.

Chandler's second term quickly became a troubled one. He faced opposition from pro- Clements Democratic legislators who were dubbed "The Rebels," and this forced the governor to form alliances with Republican lawmakers. In reality, Chandler felt more ideologically comfortable with the conservative policies of President Eisenhower than Democratic standard-bearer Adlai Stevenson. This led more than one political observer to dub Chandler as the "leader of the Republican wing of the Democratic Party." 47 Chandler also drew criticism for changing his positions. Courier-Journal editors routinely cited examples of Chandler saying one thing then doing another. A lengthy editorial reminded readers: "This is the man, let us remember, who stood before us in 1955 and vowed that he could run the state without new taxes, and who, as soon as he was in office, pushed through a disregarded legislature laws increasing corporate rate and personal income taxes by $37,000,000, raising income taxes on small wage-earners as much as 200 percent, and doubling taxes on whiskey." 48

45 Louisville Courier-Journal, June 24, 1955.

46 Hill, "The Forgotten Campaign," 85-108.

47 Al Smith interview, March 7, 2014.

48 Louisville Courier-Journal, April 5, 1959.

93 In addition to backtracking on tax cuts, Chandler had pledged to eliminate waste and abuse in state government but found precious little of either once taking office. Instead, personnel issues and political favoritism dogged Chandler throughout his second administration. He was also soon distracted by Kentucky's U.S. senatorial contests that pitted his old rival Earle Clements against Republican John Sherman Cooper. And despite being just a year into his new term, the ever ambitious Chandler even flirted with a presidential campaign of his own.

Bingham's newspapers maintained a critical stance throughout Chandler's term. Chandler often heaped scorn on Bingham's newspapers and wore their critiques as a "badge of honor." In a radio speech delivered in Louisville, Chandler decried the "brutal and unfair criticism" he had suffered at the hands of the Louisville Courier-Journal and the Louisville Times. 49 And on at least one occasion he referred to John Ed Pearce as "Barry Bingham's hatchet man." 50 Happy once told a reporter from Esquire Magazine "I've been tried and convicted many times by the Courier-Journal but I've never spent a day in jail. It's all right what they say about me, but I told 'em go ahead and say what you will – I've got a larger circulation than you fellas do." 51 The editors responded "we have often found ourselves in disagreement with Governor Chandler's policies. We feel that it is our duty to make clear to our readers where and why we think the governor is wrong so that they may seek to change those policies or to help bring about the election of men whose policies benefit the state." 52

By 1959 there was a growing weariness of Chandler's showmanship. This did not stop the governor, however, from trying to choose his successor. Lieutenant Governor Harry Lee Waterfield was the logical choice. Widely regarded as a personable and comparatively moderate Democrat, the Hickman County newspaperman and former speaker of the Kentucky House of Representatives frequently served as Kentucky's de- facto governor when Chandler was on one of his many trips out of state. "His longest such period of service was in the summer of 1957 when Governor Chandler toured the Holy Land, and other points of interest in North Africa, Europe, and England," recalled Courier-Journal reporter Allan Trout.53 There was much at stake for Chandler in the 1959 election. In addition to continuing his policies, thwarting the Clements faction and building on his celebrity status, Chandler was making noises about another presidential run and he believed Waterfield would be useful in helping him secure Kentucky delegates. Barry Bingham's newspapers meanwhile continued to blame the governor for

49 Radio address by Governor Chandler delivered in Louisville, March 22, 1956, Folder 15, Box 588, Albert B. "Happy" Chandler Papers, 1920-1985, University of Kentucky Special Collections, Lexington, KY.

50 A.B. Chandler letter to Barry Bingham, September 19, 1966, Folder 10, Box 486, Chandler Papers.

51 Louisville Courier-Journal, May 17, 1962.

52 Louisville Courier-Journal, March 9, 1957.

53 Allan M. Trout, The Diversified Career of Harry Lee Waterfield (Pamphlet published on November 1, 1972, on behalf of Jackson's Purchase Historical Society), University of Kentucky Special Collections, Lexington, KY., 9-14.

94 the Democratic Party's destructive factionalism and criticized former-favorite Waterfield because of his close association with Chandler.

Combs Contemplates Another Run

Following his 1955 defeat Bert Combs resumed his law practice but also closely monitored events in Frankfort. Combs recalled, "Happy had betrayed the people and he also had betrayed me because he had convinced me that he could run the state without new taxes...I would not have seriously thought of running except that the rebels gave me a notion….their reasoning was that I had told the truth about the financial situation in the state and that Happy had not." 54 It was more than anger that motivated Combs. The former judge not only missed the excitement of politics but had become convinced that the only way to effect significant change was through elected office.

Once again, however, Combs faced formidable opposition in the Democratic primary with Waterfield as Chandler's hand-picked successor. Meanwhile, Barry Bingham was now working on behalf of his personal friend Wilson Wyatt. Wyatt was a former Louisville mayor and the Courier-Journal's attorney. He was also a champion of liberal causes who held positions in the Roosevelt and Truman administrations, had chaired Americans for Democratic Action, and had worked on Adlai Stevenson's presidential campaigns.55 Sensing an opportunity to deliver a crippling blow to the Chandler faction, Bingham asked his political editorial writer John Ed Pearce to craft a campaign plan for Wyatt, and Pearce eagerly complied with a comprehensive twelve page memo.

Pearce suggested that Wilson Wyatt be portrayed as "a new broom to sweep Frankfort clean." Regarding factional concerns, "we will be kindly toward Combs, tolerant of Mr. Clements unless and until he makes a decisive move, and unwaveringly hostile toward Mr. Chandler and all his works…he is simply an evil man." Pearce also advised the campaign to portray Chandler's man Harry Lee Waterfield as "a poodle dog who rolls over, wags his tail or barks as Happy tugs at the leash." The memo suggested that Bert Combs was equally inseparable from Clements and that he could be "jerked out of the race by Clements at any time." 56 As for strategy, Pearce advised "when we make charges against them…we are telling the people of Kentucky the ugly truth. When they make charges against us, they are indulging in smears." Pearce also told Wyatt not to be afraid to ridicule early and often. Ridicule after all, was a common tactic employed by Chandler. "We must immediately set about compiling a file of jokes, preposterous charges, and funny stories to make Happy and his lieutenant, Happy Lee, seem like what they are – clowns." 57

Pearce said the campaign could save money by purchasing three-quarter page ads because they were just as effective as full pagers, and advised local campaign chairmen to recruit high school and college students to write pro-Wyatt editorial letters to

54 Robinson, Bert Combs, 66.

55 Al Smith interview, March 6, 2014.

56 Wyatt Gubernatorial Campaign Memo, July 11, 1958, Folder 9, Box 151, Wilson W. Wyatt Papers, 1926–1992, University of Kentucky Special Collections, Lexington, KY.

57 Ibid.

95 newspapers all over the state: "in this way we should have a constant flow of letters expressing our viewpoint, refuting false charges, and keeping our candidate favorably before the public." 58 This memo clearly demonstrated the deep involvement of Barry Bingham and one of his leading editorial writers in state politics. Pearce, for his part, was not afraid to get his "hands dirty" in this endeavor.

Bert Combs was not deterred. He ran a strong campaign and showed no sign of dropping out of the race. Internal research from both camps revealed they were in danger of cancelling out each other, thus handing Waterfield the nomination. Both sides realized a compromise had to be worked out, but which candidate would be at the top of the ticket? It was at this point that one of the most momentous and pivotal marriage arrangements in modern Kentucky politics was forged by none other than Earle Chester Clements.

Shotgun Wedding or Marriage of Convenience?

Accounts differ over who said what to whom, but on the evening of January 19, 1959, Earle Clements met with Wilson Wyatt at Louisville's Standiford Airport Motel. Clements presented yet another poll showing the former mayor running a distant third in the governor's race with Chandler's man Harry Lee Waterfield, the likely winner. The two proceeded to talk until eight the next morning with Wyatt eventually agreeing to join the Combs campaign as his lieutenant governor. In exchange, there were to be no reprisals against Wyatt supporters, and to validate the merger, Wyatt requested that Combs adopt the entire Wyatt platform. This was not a major issue since the two men were waging nearly identical campaigns. Combs and Wyatt then met to flesh out the details, and with the aid of John Ed Pearce they crafted an official statement of joint principles. The new tandem was then re-branded The Team You Can Trust. 59

The merger so inspired staffer Joe Flaubus that he composed a special campaign jingle to be sung to the tune of the "Yellow Rose of Texas."

We've had enough of Happy We've something to look forward to And enough of Harry Lee Kentucky's on the go The people want new faces For better education Combs-Wyatt they shall be. Free textbooks they will show.

For the good of all Kentucky We'll get a merit system Just take a tip from me State workers will be free And vote for Combs and Wyatt No two percent assessments 'Cause trusted they can be. How joyful they will be.

If you're proud of your Kentucky And want to set her free Just vote for Combs and Wyatt They have integrity.60

58 Ibid.

59 Wilson Wyatt, Whistle Stops – Adventures in Public Life (Lexington: University Press of Kentucky, 1985), 152-156.

96 Predictably, the announced merger garnered high praise from the Courier-Journal. The editors especially lauded Wyatt for his "unselfish act…that will not only raise the stature of the man and earn for him the respect of Kentuckians concerned with the improvement of state government." Turning to the Combs-Wyatt slate, the editors proclaimed that "the alliance is a natural one in which the forces of both men can cooperate wholeheartedly and without recrimination. Indeed the contest between the two men forced an unpleasant choice upon Kentuckians who for years had made common cause in the political arenas of the state, an uncomfortable division of forces which may now be powerfully rejoined."61 Waterfield and Chandler immediately denounced the merger suggesting that Bingham's newspapers and Earle Clements jointly orchestrated it.

The Combs-Wyatt campaign platform reveals many similarities to the prescriptions offered by Bingham's Committee for Kentucky and other progressive blueprints. Their platform called for: increased support for education by boosting both teacher salaries and per pupil spending, a comprehensive road plan free of political favoritism, establishment of an Industrial Research Bureau to help craft an overall program to attract new business and industry to the state, and enactment of a merit system for state employees. Combs and Wyatt proposed: an end to the Chandler practice of assessing city employees for campaign contributions, enactment of election law and judicial reforms, the elimination of the current Court of Claims and Highway Advisory board, which they deemed to be havens for political corruption and cronyism, and abolition of the unit rule at Democratic presidential nominating conventions. Notably absent from the Combs and Wyatt platform was any reference to drafting a new state constitution or drastically revising the 1890 charter. 62

The Battle Enjoined

The Combs-Wyatt organization immediately went to work on a strategy. Combs would be counted on to deliver majorities in his home region of Eastern Kentucky. Clements would counter Waterfield's strength in Western Kentucky. And when combined with Wyatt's popularity and connections in Louisville, the team hoped to overwhelm pro- Chandler-Waterfield forces in Central Kentucky.

The primary campaign soon turned nasty with Governor Chandler doing most of the attacking. He continued to ridicule Wyatt as a "city boy" who would not feel comfortable on "plowed ground." Chandler referred to Wyatt as "ankle blankets" which denoted that only well-to-do urbanites wore spats over their shoes. Wyatt chose to laugh at such "a patently silly and ridiculous charge" leveled by a politician notorious for singling out opponents for nearly relentless needling, sarcasm and ridicule. 63

Chandler portrayed Bert Combs as Earle Clements's puppet who was hopelessly tied to his mentor. Combs ridiculed both Chandler and Waterfield by calling his opponent

60 Combs-Wyatt 1959 Campaign Jingle, Folder 16, Box 2, Combs Papers.

61 Louisville Courier-Journal, January 22, 1959.

62 Fontaine Banks, Jr., Memoirs of a Political Legend: Half a Century in Kentucky Politics, 1955- 2008 (Lexington: Clark Group, 2008), 49. Also see Klotter, Portrait in Paradox, 337-340.

63 Wyatt, Whistle Stops, 147-148.

97 "Happy Lee," in order to remind voters who was behind the Lieutenant Governor's campaign. Combs coined the catch-all term of Chandlerism which he said was synonymous with the governor's broken promises, double talk, and corrupt administration. Chandlerism, Combs explained, "is revenge, vindictiveness, hate, tyranny, hypocrisy and greed." 64

Two issues in particular illustrate the marked change in Combs's campaign strategy, and both involved Chandler. One was the allegation that Chandler had illegally shot a game bird in the Ballard Wildlife Preserve in Western Kentucky, had been assessed a fine, and had refused to pay it. According to Pearce as time wore on, the story morphed into "an account of how Happy shot a goose on the ground, a goose that had been crippled by another hunter. People speaking for Combs made snide references to Chandler's prowess with firearms," which many a male Kentuckian would find distasteful, given the state's long history and affinity for hunting and fishing. 65 Thus, the "crippled goose" incident took on a life of its own on the campaign trail as Waterfield later recalled:

Everywhere I'd go to make a speech I'd get these duck (and) geese calls. It was terribly annoying. There would be a big crowd and especially if it was out in the open, somebody would turn an old goose loose and put a hot stick to her and she'd squawk and you might just as well go home…They built little wire cages and had a little gosling in the cage…and there would be a big red sign that said 'Happy Killed My Pappy'…I think it hurt me as much as any one thing in the campaign. I always had the feeling the same thing Happy did to Combs in 1955 they did to me in 1959. 66

The other example Combs used to illustrate Chandlerism involved his "Castro Speech," which, according to one political historian, was suggested by the brilliantly eccentric Clements disciple Ed Prichard. 67

Chandler had imposed a 2 percent assessment on state payroll checks and deposited the funds in a Cuban bank, and was embarrassed when Fidel Castro's revolution toppled the pro-U.S. regime and nationalized all Cuban banks. The Combs campaign hit back with a portrait of a pathetic Chandler crying on a Florida beach, screaming at the water, "Castro! Castro! Send back my 2 percent!"68

Combs's focus on Chandler instead of Waterfield was sound strategy, according to John Ed Pearce. "Frequently, when introducing Harry Lee, Happy would get carried away and usurp the occasion. A campaign crowd drew him as inexorably as swift water draws a spawning fish; it was instinctive."69 Not surprisingly, subsequent political observers

64Banks, Jr., Memoirs, 50.

65 Pearce, Divide and Dissent, 87.

66 Robinson, Bert Combs, 85-86.

67 For a detailed biography on Ed Prichard see Tracy Campbell's Short of the Glory: The Fall and Redemption of Edward F. Prichard Jr., (Lexington: University Press of Kentucky, 1998).

68 Campbell, Short of the Glory, 204.

98 wondered whether Chandler's large campaign role did Waterfield more harm than good.70

Key Issues

The political potshots overshadowed important issues over which there were real divisions. Combs-Wyatt claimed the Chandler administration's failure to fund education had resulted in the state falling to 48th place in the nation. In fact, teachers' salaries had been allowed to fall nearly $1,600 below the national average. Additionally, lack of attention and funding had allowed Kentucky to slip to forty-first place in President Eisenhower's National Highway Building program. Combs-Wyatt also alleged that the Chandler administration had allowed political kickbacks, favoritism, and petty revenge to scare away business and impede progress while also failing to promote agriculture.71 Combs-Wyatt forces also maintained that under Clements and Wetherby, "Kentucky made the greatest progress of any state in the nation in the development of its state parks and tourist industry," but that when Chandler and Waterfield took over in 1955 "the parks became mere political tools…to pay political favors, to provide soft jobs for political henchmen, (and) to advance their own political fortunes."72

The Team You Can Trust's radio ads highlighted a "positive program for Kentucky" which included "more State aid for local school districts to build new schools…for free textbooks for all Kentucky school children….and increased pay for hard-working teachers…the creation of an Agriculture Research Center to develop new marketing and promotion methods (to) find new ideas for Kentucky tobacco, and promote all Kentucky agriculture…to work with Kentucky's Congressional delegation to get more highway money…to take Kentucky's Highway program out of the hands of 'political hacks' and put professional engineers in charge…to build better roads for all of Kentucky….to restore clean and honest government to Frankfort…(ending) the system of political kickbacks…favoritism, and the petty revenge that has shackled progress in Kentucky for the last four years...full development of Kentucky's forests, rivers, and minerals…(and) work aggressively to sell businesses, including Atomic power, electronics, and plastics, on the advantage of locating in Kentucky."73 Nowhere in these or other campaign materials was it disclosed how the programs were to be financed.

Chandler and Waterfield countered that teachers had received "shabby treatment" during the Clements-Wetherby administration, that "public schools in Kentucky today are receiving 70 percent more than was provided by the previous administration…that "not one of the ten southern states is able to pay the national average in teacher salaries…further, Kentucky is not a wealthy state. We are making progress, but we are still among the lowest states in the nation in per capita income. Without greater wealth

69 Pearce, Divide and Dissent, 93.

70 James C. Klotter, interview by the author, Lexington, KY. April 1, 2014.

71 1959 Combs-Wyatt campaign radio/TV scripts, Folder 11, Box 2, Combs Papers.

72 Internal memo on parks under Chandler Administration, February, 1959, Folder 2, Box 14, Combs Papers.

73 1959 Combs-Wyatt campaign radio/TV scripts, Folder 11, Box 2, Combs Papers.

99 and more industry; it would be financial suicide to try to pay teachers' salaries equal to the national average. It is a great deceit and morally wrong for Combs to hold out the promise to raise their salaries to the national average within the next four years. I know, you know – and he knows – the only way to this would be possible is by placing upon our people the most burdensome taxation program in our history."74

Chandler-Waterfield insisted that under their leadership the state had launched the "greatest road-building program in history," resulting in a vigorously expanded and diversified state economy. Regarding fiscal management, they claimed that Governor Chandler had kept taxes low and assured that Waterfield would do the same. Further, they warned Kentucky voters that the Combs-Wyatt programs would mean higher taxes. An internal campaign memo suggested sarcastically that Combs and Wyatt could make a boatload of money for themselves by imposing a "hot air tax."75

Even though the campaign took place just five years after the U.S. Supreme Court's Brown v. Board of Education decision, race and school integration played a very limited role in the 1959 primary. The civil rights issue did not appear in either candidate's official campaign platform, but Combs and Wyatt attempted to court black voters by sending letters to several African American newspapers conveying their beliefs on racial equality. Combs wrote "As an attorney and Judge… I stand…solidly behind Civil Rights court decisions and will uphold them at all times. It is my personal conviction that in order for Kentucky to truly advance, it must recognize the Negro as a full-fledged citizen and extend his opportunities." Wilson Wyatt's statement read in part: "I have always believed in fair play and equality of opportunity for every citizen regardless of race, creed, or color. My actions are dictated by what is just, right and decent…As Mayor of Louisville, I initiated the beginning of official desegregation. As National Housing Administrator, I sought to eliminate segregation in housing. As a private citizen I have participated actively and enthusiastically in movements aimed at full recognition of Negroes."76

Closing Arguments

In the final days of the campaign the Louisville Courier-Journal reiterated its support for Combs and Wyatt claiming "they offer a platform of principles, that if adopted would effect a historic improvement of the government and politics in our state." Three particular initiatives were singled out for praise: a true merit system for state employees to keep each new governor "from rewarding his supporters and punishing his enemies," a general overhaul of election laws "to make it impossible for local officials to steal elections through fraudulent voting, counting or reporting," and a commitment to "home rule" meaning the granting of authority "to cities and towns to deal with their own purely local problems – spacing fire hydrants, levying taxes, regulating municipal services," which all fell under the purview of the legislature, under the terms of the state's antiquated constitution. The editors added that these reforms would also "take the supports from under the factional squabble that has plagued Kentucky government for

74 1959 Waterfield Campaign Materials, Folder 8, Box 393, Chandler Papers.

75 Ibid.

76 Combs and Wyatt 1959 Campaign statements on civil rights, Folder 23, Box 2, Combs Papers.

100 half a century, for factionalism must feed on the spoils of victory and the corruption of the ballot."77

The Waterfield campaign held no illusions of earning an endorsement from Bingham's newspapers even though the Courier-Journal and Times had supported Waterfield in previous contests, but the presence of bête noire Chandler made that improbable. Some Waterfield supporters tried to score political points by reminding voters of Wyatt's past leadership of Americans for Democratic Action which had been pilloried as "soft on Communism" during the McCarthy era. Meanwhile, an increasingly desperate Chandler sent letters on official stationery imploring support for Harry Lee Waterfield, citing "the unprecedented amounts of outside money pouring into the Combs campaign through Earle Clements' connections with Texas Senator Lyndon Johnson's backers who badly want Kentucky's votes at the National Democratic Convention." The Combs' forces also had "the enormous financial resources of the Louisville (Democratic Party) organization and the Louisville Courier-Journal Empire behind them. As a result, they are able to spend between $4 and $5 for every dollar we can muster." The only way to counter this unfair advantage was to get out there and support Waterfield 100 percent. "If Harry Lee is elected, Kentucky will be governed from its capitol, not from Washington, or Texas, or (from the Courier-Journal headquarters at) 6th & Broadway in Louisville."78

Chandler's letter did not achieve its desired effect. In a stinging defeat for the governor, Democrats favored the Combs-Wyatt tandem by some 33,000 votes in the May primary with the margin of victory supplied by Wyatt's home territory of Louisville and Jefferson County.79 On the Republican side former Louisville Congressman John Robsion Jr., the son of long-time Eastern Kentucky Congressman John Marshall Robsion, handily defeated two relative unknowns in a lackluster contest, setting up an intriguing matchup for the general election.

Combs versus Robsion

On August 1, a small Catholic parish picnic in rural Graves County provided the setting for the first face-to-face encounter between Combs and Robsion. Over its eighty years the Fancy Farm Picnic came to be regarded as one of the necessary crucibles through which all aspiring politicians had to pass. Since the early 1930's[sic], the Saint Jerome community feast and fundraiser featured candidates for statewide office who, more often than not, delivered highly partisan stump speeches before a rowdy crowd of Republicans, Democrats, and even a few curious onlookers. Combs and Robsion did not disappoint.

Combs told the crowd that Robsion had "Republican Dictators" to thank for his candidacy, while Robsion countered that Combs should thank a certain Democratic party boss for arranging the "shotgun wedding" that made his primary victory possible. Robsion did not identify the "boss" by name but partisans in the crowd knew he was referring to Earle Clements. Combs rattled off a list of specific campaign pledges:

77 Louisville Courier-Journal, April 19, 1959.

78 Governor Chandler campaign letter on behalf of Harry Lee Waterfield, May 14, 1959, Folder 10, Box 393, Chandler Papers.

79 Jewell and Cunningham, Kentucky Politics, 74.

101 expansion of parks – including the development of the nearby Barkley Dam area, voting machines in every county, a merit system and tighter ethics policies for state employees, the adoption of a modern highway program, and an improved educational system. Combs ended his remarks by telling the crowd if Robsion has a platform, neither he nor Kentucky voters had heard about it.

Robsion agreed that the state needed better roads and schools, but then challenged Combs to explain how he would finance these programs. He asked the crowd "who's going to pay for all these wonderful things they're going to do for you?" The former Congressman also said he would not try to "out-promise" Combs because there had "already been too many promises and too little performance."80 If the Fancy Farm speeches were any indication, the general election campaign promised to be as spirited but with the Republicans a decided underdog.

Louisville Times political reporter Richard Harwood laid out the difficult road the GOP faced:

The Democratic constituency is bigger and richer. Of the 120 counties in the state 61 are unfailingly Democratic. They contain 1,300,000 of the state's 3,000,000 people. Only 30 Kentucky counties, (the poorest) always vote Republican. They contain 500,000 people. The rest of the counties are competitive although they tend, by and large, to go along with the crowd and the Democrats."81

Based on those numbers, the only serious threat to a Combs-Wyatt victory would be Democratic disunity. The question remained whether the Chandler faction would support the party's ticket.

As Combs and Robsion traveled the state, taxes remained a focal point of the campaign. Robsion issued a "no additional taxes" pledge and challenged Combs to do likewise. Robsion estimated that the Combs programs would cost the state an additional $75,000,000 and he pressed his opponent to admit this. Combs at first attempted to cut- off the discussion claiming that the issue of taxes had "no place in a political campaign."82 Combs later claimed that a rapidly expanding economy would help finance the programs without a tax increase. He also criticized Robsion for being unrealistically inflexible on tax issues. On at least one occasion Combs voiced his support for a renewed effort to re-write the state's constitution, even though it was not an official plank in his campaign platform.

Robsion recycled Chandler-Waterfield's charge that Combs was an Earle Clements puppet. He predicted that a Combs victory would lead to the appointment of Clements as highway commissioner. Robsion also suggested that as a Republican Governor he, not Combs, would be in a better position to deal with the Chandler and Clements factions in the Democratically-controlled legislature. Combs countered that he was

80 Louisville Courier-Journal, August 2, 1959.

81 Louisville Times, August, 21, 1959.

82 Louisville Times, September 3, 1959.

102 unequivocally his own man and would have no trouble selling his vision to the General Assembly.

Both camps decided early on that school desegregation was to be off limits. During a joint appearance at a Centre College Convocation, the candidates "answered a firm no" when asked whether they would "close the schools rather than accept state-wide integration." This decision was hailed by Bingham's newspapers which claimed that "Kentucky has made excellent progress" in these areas and any such regressive action would prove tragically unwise. 83 Another topic neither candidate wanted to talk about was a ballot referendum authorizing the payment of a one-time bonus for military veterans that would be financed through a sales tax. Combs agreed with Robsion's statement that "it's to be decided by a vote of the people."84

By late October it became evident that Governor Chandler had no plans to endorse the Combs-Wyatt ticket. When pressed by a reporter, Chandler said he planned to vote the Democratic Party, but that a Combs loss might be "the salvation of Kentucky."85 Still angry, Chandler branded Combs "the biggest liar I've seen in thirty years of politics…there is a hell of a split in the Democratic Party and anybody who says there is no split is crazy."86 A split did materialize a few days later when Harry Lee Waterfield backed out of an earlier pledge to officially welcome and introduce former President Harry Truman at a rally in Paducah. The lieutenant governor claimed he felt ill-used upon learning that the entire Democratic slate, including Bert Combs would be on the same stage, presumably to project an image of unity. Waterfield claimed Earle Clements was behind the idea. Governor Chandler also sent a letter to Truman in which he labeled Combs and Clements as "bolters" because they had refused to endorse him after the 1955 primary. Combs, according to Chandler, had even refused to introduce Democrat Alben Barkley at a Chandler rally during the general election campaign. The Combs camp fired back that Chandler's support for Republican Thruston Morton in his victorious 1956 U.S. Senate race against Earle Clements was "well known." They also presented Barkley's son David to refute the claim of a Combs snub and later invited him to introduce Truman at the Paducah rally.87

Robsion and the Republicans did all they could to exploit the rift, highlighting Chandler's prediction that up to 50,000 Democrats would cross party lines on Election Day. The campaign also received significant heft in the final days with marathon speeches from Senators Cooper and Morton, the latter who was now national chairman of the Republican Party. Democrats took nothing for granted and launched their own vigorous final push. GOP hopes for an upset ran high according to Richard Harwood: "They are a bullish party this year, buoyed up by visions of a fatal Democratic bolt led by Gov. A.B. Chandler."88 But to almost no one's surprise, the highly sought endorsement from the

83 Louisville Times, September 25, 1959.

84 Louisville Times, October 15, 1959.

85 Louisville Times, October 22, 1959.

86 Ibid.

87 Louisville Times, October 23, 1959.

88 Louisville Times, October 30, 1959.

103 state's most important and influential newspaper went to the Democrats. The Courier- Journal and Times editors wrote:

(Combs and Wyatt together) possess the experience, intelligence, decency and imagination that are needed in Frankfort. In their campaign they have proven they can work together in harmony. As Democrats they will work in harmony with the inevitable Democratic majority in Kentucky's General Assembly. Kentucky faces far more problems in government than any single administration, and we do not expect any sudden arrival of Utopia to result from the election of this slate. We do however regard their promises as sincere. We do admire their refusal to be trapped into any tax promise. We hope wholeheartedly that no general tax increase will be necessary in the near future. At the same time we realize that expenses of all obligations to the state government, especially the state's school system are increasing. It would be folly to foreclose any possibility of increasing revenues if that become absolutely essential to the state's welfare.89

On November 4th, Combs defeated Robsion by more than 180,000 votes, one of the most lopsided electoral victories in Kentucky history. The referendum on a sales tax/veterans' bonus also passed, but by a considerably slimmer margin of 38,000 votes. In summarizing the poor performance of his party's candidate Chairman Morton said "an expected Democratic split did not materialize and Democrats won the election according to form."90 In a matter of months Kentucky Democrats twice rejected Chandler and his faction, opting to embrace Combs's programmatic approach to solving the state's problems.

A New Day for Kentucky

The Combs-Wyatt victory meant that Barry Bingham and the Courier-Journal had a new progressive standard-bearer in Bert Combs, with Wilson Wyatt serving as his number two. The plan worked to perfection and Combs' blueprint for reform and progress was ready for implementation. The new governor and lieutenant governor would have to endure an awkward and testy inauguration. Chandler's valedictory speech was decidedly defiant. He sarcastically saluted Wilson Wyatt, reminding the crowd that back in 1942, when Wyatt was Mayor of Louisville, "Old Ankle Blankets was one of my earliest and most ardent supporters." Then Chandler recited the major accomplishments of his first administration, most notably repealing "the obnoxious three percent sales tax which plagued our people and added so much to their misery." Happy claimed his second gubernatorial term had ushered in "fantastic progress" for Kentuckians with increased support for education, new road building, the construction of a medical center at the University of Kentucky, the attraction of 300 new industries to the state, the creation of 25,000 new jobs, the proper handling of the "troublesome integration problem" with wisdom and dignity, and the installation of a "solid merit and pension system for our state employees," all while making sure state government lived within its means.91

89 Louisville Times, October 12, 1959.

90 Louisville Courier-Journal, November 5, 1959.

104 The outgoing governor then looked directly at his successor and claimed that in 1955, the state's budget surplus was $3,206. But thanks to Chandler's sound, conservative fiscal management "I will leave to you my dear sir…a surplus in the general fund account unappropriated in the amount of twelve and a quarter million dollars – six million of which will be free for capital investments." Combs, he said, was inheriting "the best managed state government in all of the sisterhood of states, sound and solvent in every respect." Chandler then made one final promise to his supporters and a warning to his enemies: "I will not say goodbye because if Almighty God shall will it, I may return." That last statement elicited boos and jeers from Combs's supporters hoping that Chandler might be magnanimous in his final hour in office and believing that civility should prevail on this important day.92

In a historic break with tradition, Combs then yielded the podium to his victorious running mate Wilson Wyatt who after acknowledging the public ribbing he'd just received from Chandler, told the crowd "we stand here today because our party has triumphed, but we go from here, not as partisans. It is our purpose to work for all Kentuckians, not just some Kentuckians…we stand here today because of a great victory, but it was a victory of principles, not of people." The two men then rose and accepted the oath of office together, which included verbiage that they had never "fought a duel with deadly weapons," a clear reminder of the state's archaic constitution.93

Combs delivered a brief but ideologically-focused speech on the now familiar themes of reform and progress. Reform he defined as "the elevation of the moral and political tone of government" characterized by "scrupulous honesty, decency, and ethics." This meant "the development of a sound statutory merit system for state employees, the reform of our election laws with provisions for voting machines in every county, more home rule for our cities and other political subdivisions, and greater freedom for the legislative branch of government from executive domination."94

Combs said he would deliver progress to Kentucky through the implementation of "programs which will stimulate the economy of our state and improve the living conditions of our people." These included: educational advancement, industrial development, the improvement of our tourist business, development of research and better marketing and agriculture, the building of more and better highways, conservation of our forests and other natural resources, and control and management of our abundant water supply. The new governor then reiterated his pledge to run an open, honest, intelligent and accountable administration by demanding that every member of his staff not only "be completely free from the taint of improper conduct in government but must, indeed be above such suspicion," a less than subtle reminder of the pitfalls of the outgoing administration.95

91 Governor Chandler Valedictory Speech, December 8, 1959, Folder 29, Box 590, Chandler Papers.

92 Ibid.

93 Wyatt, Whistle Stops, 159.

94 Robert F. Sexton, ed., The Public Papers of Governor Bert T. Combs: 1959-1963, (Lexington: University Press of Kentucky, 1979), 5-10.

95 Ibid.

105 A Conditional Tone of Cautious Optimism

The Louisville Courier-Journal editorial the following morning lamented that political factionalism was still alive and well in Frankfort. "No one was more aware than A.B. Chandler that the new governor had ridden to victory over the political body of the old governor." And while Combs and Wyatt pledged themselves to decency and honor, there were a number of "troubling problems" on the horizon, namely "in the background, looming larger and more solidly than his prominent figure on the reviewing stand was the question of EARLE CLEMENTS, whose role in the new administration could well set the tone for years to come." Rumors were swirling that the former governor, as Robsion had warned, had brokered a deal with his protégé to secure an appointment as highway commissioner and the editors clearly disapproved of the idea.96

The editorial served notice that Combs's cozy relationship with the statewide newspaper would by no means be unconditional. The governor's refusal to distance himself from Earle Clements continued to be a contentious issue. Because road construction was to be a major priority in his administration, Combs insisted that he needed someone who had all the statewide contacts, and had the organizational skills to get things done. True to his word, he appointed Earle Clements Highway Commissioner.

An Early Test of Leadership

Signifying that the newspaper would be no "rubber stamp" for Bert Combs, the subsequent editorial penned by John Ed Pearce labeled the decision a mistake, suggesting that it was political payback for the man who was responsible for Combs's rise. What other possible reason, it asked, would a former governor, U.S. senator and one-time stand-in for Majority Leader Lyndon Johnson, seek such a comparatively low- level, meagerly compensated position? The paper speculated that Clements would use the job to cultivate state-wide support for Johnson's 1960 presidential campaign. Accompanying the editorial was a cartoon from Hugh Haynie depicting Clements as a large and imposing Santa Claus, sitting on the lap of the child-sized Combs.97 The implication of this illustration was unmistakable. Pearce later confided to Combs that he had to write "those critical editorials. Bert knew it and understood that I had to make them as tough and effective as possible…But that was our official policy and it was my job to enunciate it."98 In this particular case the paper predicted trouble and it would later be proven right.

Other publications noted the rift. Sandy Wood, editor of Kentucky Report wrote:

Governor Combs and (Earle) Clements, who were the two main principles in that tremendous Democratic victory last November, and their helpmate Lt. Gov. Wyatt, deserve fair and reasonable treatment from the press as they launch out with their new administration. It is ill-graced and ill-timed for the C-J & Times to point a pious finger of criticism at two leaders of

96 Louisville Courier-Journal, December 9, 1959.

97 Louisville Courier-Journal, December 10, 1959.

98 Pearce, Memoirs, 111.

106 Kentucky whom they embraced fully two months ago. If this is a sample of the treatment Combs and his administration can expect from these newspapers in his next four years in office, then political observers already are saying that they are only sowing the seeds of discord and disunity that well could promote a return of Chandler to governor in 1964.99

Aside from the dire warnings about Earle Clements, Combs generally received good reviews from the Courier-Journal. He benefited as governor from his personal relationship with John Ed Pearce. Pearce later confessed in his memoirs that he had written speeches for the governor, and then critiqued them the next day on the Courier- Journal editorial page. Pearce now became a buffer between the governor and Barry Bingham. "It was not a bad technique," Pearce said. "Bert, sensitive to the influence of the Courier-Journal and the importance of its support of his programs, wanted to keep on Barry's good side and have a chance to explain his moves before criticism developed."100 Combs' third wife Sara maintained that Bert felt a close kinship with Pearce because of their similar Appalachian origins and family backgrounds. She pointed out that both had had strong mothers and alcoholic fathers. Both families had also experienced the hard times of the Great Depression. Conversely, she said "there was a reserve between my husband and Barry Bingham. I don't think that Barry thought that my husband was quite his social or intellectual peer," but they shared a common vision of what it would take to move the state forward.101

Combs, meanwhile, was eager to start work on initiating his campaign pledges. For Bert Combs the promotion of economic growth in Kentucky involved making infrastructure improvements, including construction of a series of regional airports, as well as new roads to connect disparate and isolated communities. He reasoned more roads would equate to increased opportunities for the people, more mobility, more trading of goods, the attraction of new industries to put more people to work. Kentucky had fallen behind other states in the effort to transform American transportation that had accelerated with President Eisenhower's Interstate Highway System.

The system itself primarily benefited communities that fell along the appointed north- south routes. There were whole regions left out of the plans. For instance in Eastern Kentucky, the state could not qualify for federal assistance because appropriations were based on traffic counts. The paucity of serviceable routes in many mountain communities made compiling that vital transportation data problematic. Combs saw investing in a network of toll roads from "Elkhorn City to Paducah" as key to not only increasing mobility and economic opportunities of Kentuckians, but also fostering development, in addition to attracting travelers to stay and spend money in the state.

For Combs increased American mobility represented unprecedented tourism opportunities for communities across the commonwealth. Improved East-West routes would help take in-state and out-of- state travelers to these desirable destinations:

99 Kentucky Report, December 14, 1959.

100 Pearce, Memoirs, 113.

101 Sara Combs, Interview with the Author, February 19, 2015, Lexington, Kentucky.

107 Obviously in order to develop the state as a tourist attraction, number one, we had to have something for tourists to do and to see. So we decided to concentrate on upgrading and constructing, (as well as) developing new state parks. The other leg of that stool was we had to upgrade our highways in order to attract people into the state…One factor in favor of a toll road system was that the interstate system then was underway…and our state highways were being built in Kentucky, but all of those highways ran north to south…It was my thought that the toll road system ought to be built generally east to west.102

Combs did not see the parks themselves as moneymakers, but he believed that associated private businesses such as motels, restaurants, retail stores, and other tourism-related service industries would generate a tremendous amount of revenue for local communities as well as the state. The task ahead would be convincing the legislature to make such investments possible. That would most assuredly involve approving an increase in the state's bonding authority.

Above all Combs believed that education was the area that held the promise of a better future for all Kentuckians. "The people of America during the past decade have neglected the education of their children, and Kentucky has been one of the worst offenders," he told a crowd at Caney Creek. "We have overcrowded our classrooms. We have underpaid our teachers. We have cut back our research. We have harassed our scientists. We have let brilliant students drop out after high school. Russia spends approximately 10 percent of its national income for education. America spends only 3 percent, and…Kentucky spends even less." 103

Throughout his 1959 campaign, Combs asserted that education had been "the worst failure of the Chandler-Waterfield administration." Their "refusal" to adequately invest in public and higher education robbed Kentucky students and teachers of hope and opportunity to envision better lives for themselves and the state as a whole. 104 Undereducated students begat underprepared and under-skilled workers destined to perform only lower wage jobs, thus contributing to an endless cycle of inadequacy and want. Vital investments in education entailed, not only boosting teacher salaries, but the closing of one-room schoolhouses, construction of new classrooms, more free textbooks for students, more money to the University of Kentucky and other state colleges to expand facilities, hire the best teachers, researchers, and administrators, plus the establishment of community colleges to allow rural students access to quality higher education closer to home. Combs knew that while dedicating significant resources to education would pay dividends in the long run, demonstrating results in the short term would be problematic. Nevertheless, he deemed it one of the wisest investments that the state could make in its future.

Combs also believed in the government's responsibility to provide a safety net for Kentucky's more vulnerable citizens. These included the aged, the infirm, the mentally

102 Robinson, Bert Combs, 111-112.

103 Sexton, Public Papers of Governor Combs,123.

104 Combs-Wyatt 1959 campaign flyer, Folder 1, Box 1, Combs Papers.

108 and physically challenged, (Combs himself was the parent of a mentally retarded child) the long term unemployed, and those trapped in the endless cycle of poverty. He also envisioned improved medical and health systems, services and facilities for all Kentuckians. Combs also believed that the state should be good stewards over Kentucky's natural resources, including forestlands, waterways, and natural habitats, and that public money should be spent on preserving these natural assets.105

Bert Combs was an optimistic disciple of Roosevelt's New Deal. He had seen these programs in action and had even benefited from them. Combs rejected the notion that Kentuckians would forever be "too poor to paint and too proud to whitewash."106 He especially believed that government had a role and responsibility in improving the lives of its citizens. His task would be to convince skeptical Kentuckians that the state could function as a positive force. For that he could point to the Clements and Wetherby administrations' emphasis on road building, economic development and parks, which he felt had received short shrift during Chandler's disappointing second term.107

But as Combs prepared to guide Kentucky into what he called a "decade of decision," the Appalachian politician was also keenly aware of the geographic, socio-economic, and cultural differences that tended to divide, rather than unite the state. Nowhere was this contrast more stark than in the mountains of eastern Kentucky which were "not only a barrier to transportation and communication but helped to preserve a cultural heritage and a way of life that had little in common with the rest of the state." 108 An effective leader had to be aware of the myriad factors that influenced Kentucky identity and values. According to Penny M. Miller:

Kentucky's subdivisions are as diverse in interests as in geography…Appalachian Eastern Kentucky is as different from the central Bluegrass region as any two parts of the United States; coal and poverty clash with thoroughbreds and green plains. Neither resembles typically southern Western Kentucky. Urbanized Louisville and the other river cities could be across the country from each other, and from Appalachia. These differences make Kentucky a difficult state to govern, to unite in common goals.109

Combs believed his priorities in road building, education and other quality of life issues, would transcend these figurative and literal boundaries, uniting the state under the banner of progress, while also working to change Kentucky's long-entrenched county- centered system of government.

Therefore, with a lengthy agenda of education, infrastructure, ethics reform, and agency creation already set for the January, 1960 legislative session, Combs surprised many by

105 Robinson, Bert Combs, 94-137.

106 Ibid., 39.

107 James C. Klotter interview, April 1, 2014.

108 Jewell and Cunningham, Kentucky Politics, 21.

109 Miller, Kentucky Politics, 5.

109 first calling a special session of the General Assembly to consider the issue of constitutional revision. The reason was fairly straightforward: expediency. Any resolution to "take the sense of the people" to either revise or re-write the document required majority approval by two separate General Assemblies. Put simply, if the governor wanted to see changes as quickly as possible, this was the best way to move ahead. The constitution could be changed either through amendments or by a convention to produce a new document. The former was a laborious process since only two amendments could be considered at any one time. The latter method had twice been rejected by voters in 1931 and 1947. Combs's strategy was to seek voter consensus for a "limited" constitutional convention. There was simply no need to re-write, for example, the Bill of Rights because they were deemed to be solid and sound. In a speech to lawmakers he explained:

When the present constitution was written, the state was not concerned with highway construction, public assistance, juvenile delinquency, public or mental health, or many other major problems which confront us today. There were no automobiles, no radio and no television. The airplane was still a dream in the minds of visionary people, and atomic energy, minimum wages, social security and the forty-hour week had not even reached the discussion state. Only few homes had running water. There were few telephones. The great majority of our people had never seen an electric light. This is the constitution under which the Commonwealth must operate today. The state cannot go forward as it should without some constitutional changes.110

Barry Bingham's newspapers were solidly behind Combs's maneuver. The editors expressed hope that the "limited" strategy would be more palatable to lawmakers: "His decision to call the special session in order to speed the long process of revising the state's Constitution was a bold move, and his conduct since has been that of a man who knows what he wants and intends to get it. His attitude has been relaxed, confident." Some revisions, the editors felt, were long overdue. These included: more authority granted to cities and communities for "home rule," likewise more discretion in establishing the number and operation of courts, removal of a salary cap for teachers and professors, and elimination of the required transfer of authority when the governor leaves the state.111 The strategy proved sound. On December 31, 1959, lawmakers overwhelmingly passed the resolution enabling the next General Assembly to consider a referendum allowing the people an up or down vote on a limited constitutional convention.

The call for a special session just days after Combs's inauguration signified that a new style of leadership had taken over in Frankfort. Gone were the days of Chandler, and all he represented. Combs later confessed that this was by design. "I made no secret of the fact that I didn't care about being governor unless I could be a progressive governor…I thought that Governor Chandler was not a progressive governor."112 And

110 Sexton, Public Papers of Governor Combs,19.

111 Louisville Courier-Journal, December 24, 1959.

112 Robinson, Bert Combs, 39.

110 Combs was eager to show Kentucky and the legislature how progressive he intended to be. But he also knew that the success of his liberal programs hinged on securing enough money to pay for them.

Ironically, a shrewd political maneuver that backfired on outgoing Governor Chandler provided the Combs administration with the solution to those fiscal challenges. On the same day that Kentuckians sent Combs and Wyatt to victory, they also approved the referendum establishing the veterans' bonus which was to be financed by a sales tax. Chandler had confidence that the people of Kentucky would never vote to reinstate a tax that he himself repealed the first time he was governor. But pass it they did. The only remaining detail involved setting the percentage. The governor's advisors believed one half of one percent would be sufficient, but Combs, who took a neutral stance on the bonus during the campaign, now seized the opportunity to secure much more than that. He decided to ask the legislature to approve a 3 percent sales tax, with roughly 66 percent of it to finance education and other progressive programs.113

For Combs, progressivism meant rejecting austerity, embracing optimism, and investing with an eye toward the future, even if the benefits were not fully realized until long after he left office. Whereas Chandler and other southern governors of his generation subscribed to the notion of keeping taxes low, and government minimally involved in the daily lives of citizens, Combs embraced what historian Richard Abrams has labeled the Regulatory/Welfare State. Political leaders who adhered to this philosophy:

saw the need to use the state to intervene actively to (a) to adjust advantages and disadvantages among competitors in the marketplace while promoting economic growth, and (b) to provide minimal living conditions, a 'safety net,' for less fortunate Americans. The dual objectives aimed at overcoming market failure by stimulating economic growth, providing sustained consumer demand, and enhancing profit opportunities as well as guaranteeing minimum resources for people that were poorly served by the market. The commitment involved some redistributive measures and transfer payments…to selected business interests in order to sustain the welfare of the industrial and postindustrial economy…and on a needs basis to improve the quality of personal life. The premise underlying such activism rested on the observation that market outcomes often failed to serve vital public interests, among them stimulating overall economic growth and innovation, moderating boom- and-bust business cycles, maintaining public goods such as roads and parks, and – commensurate with an affluent society – providing humane care for the poor, the unwell, the ineffectual, the disadvantaged, the feeble, the unlucky.114

These were the guiding principles that Combs carried with him into the House Chambers on January 5, 1960 as he delivered his first State of the Commonwealth Address to the General Assembly.

113 Lowell Harrison and James C. Klotter, A New History of Kentucky (Lexington: University Press of Kentucky, 1997), 407-408.

114 Abrams, America Transformed 212-213.

111 Combs began his remarks by informing lawmakers that the sales tax/bonus issue was currently in limbo because of a lawsuit challenging the constitutionality of the process that was used to place the measure on the ballot. Nevertheless, Combs expressed confidence that once the matter was resolved in the state's favor, he would ask for approval of a general tax of three percent on retail sales. Combs then offered no specific legislation but a long list of recommendations including:

- Immediate and substantial increases for teacher salaries and the establishment of a central school-building authority to assist local school districts in construction of needed schools.

- An appropriation to establish an agricultural research center at the University of Kentucky.

- A workable and permanent merit system for all state employees with an immediate end to involuntary assessments and tougher ethics policies for same, including harsher penalties for violators.

- A law requiring voting machines in every county of the state to ensure fair and honest elections.

- Amending current laws to allow more home rule for Kentucky cities and towns.

- A resolution calling for a referendum on a limited constitutional convention.

- Abolishment of the Court of Claims and Advisory Highway Commission because they serve no useful function.

- The creation of a program to protect Kentuckians who do not have and who cannot afford proper and adequate medical attention.

- Laws preventing conflicts of interest with strict penalties for violators, including those who would use their office unfairly to personally profit.

- A re-examination of laws governing allowable size and weight of trucks and a study of the structure of truck taxation.

- Increased governmental authority to attract industry to the state.

- Legislation providing for broadened forestry and soil conservation programs, as well as a small watershed program that would create small lakes across the state for recreational purposes.

- Reasonable regulations governing mineral production, especially oil and gas wells.

- The elevation of the Division of Parks to department status to provide the needed independence and authority, in anticipation of unprecedented growth in importance and stature.

112 Combs then closed his speech by telling lawmakers: "to some this will seem an ambitious program, but the time has come when we must be ambitious for Kentucky, its people, and its future…I am confident that what I have presented to you today will set us on a course of progress in governmental services which history may judge and approve."115

Combs's speech did not resonate with legislators. The Courier-Journal reported that the 25-minute address was delivered before "a solemn and unresponsive joint session that applauded only at the beginning and end of the speech," but the editors countered that Combs "proposed a legislative program unprecedented in scope and quality and in its daring and foresight and approach to the basic problems facing our state. Not in recent times has a Governor made a more inspiring beginning of his administration."116 Lining up enough Democratic and perhaps Republican votes to pass these bold measures would take hard work.

As predicted, the referendum survived the legal challenge and lawmakers began important bills that abolished the highway advisory commission, established a revamped Board of Claims, authorized the legislature to call a constitutional convention, they created a Constitutional Review Commission as part of the Legislative Research Commission, and established a permanent merit system for state employees. They then took up the veterans' bonus and three percent sales tax bills, which were deemed vital by the administration because they would provide the revenue to finance Combs' programmatic agenda. The passage enabled the governor to craft his spending plan that would comprise the first billion dollar budget in the state's history.117

A Historic Spending Plan

On February 17, 1960, a confident Governor Combs delivered his historic budget speech telling lawmakers:

This is a budget which Kentucky has needed for the past half century…Today Kentucky leaves her old, depressing place at the bottom of the ladder…Your courage in enacting tax legislation, your wisdom in keeping communities within bounds has made this budget possible…I deeply believe that this is a day Kentucky will have reason to applaud for this budget and the program of improvements and the progress it makes possible, makes a drastic break with the distressing patterns of the past and departs for a new and better day.118

Combs' biennial Billion Dollar budget included unprecedented levels of spending on education, especially teacher salaries, highway construction, health care and social programs, agriculture and industrial development, forestry, state parks, and a variety of

115 Sexton, Public Papers of Governor Combs,19-25.

116 Louisville Courier-Journal, January 6, 1960.

117 Banks Jr., Memoirs, 64-66.

118 Ibid., 70.

113 other important state government departments.119 Following the governor's message, Democrat and Republican lawmakers gave Combs a standing ovation and subsequently passed the spending plan without a single dissenting vote.

The legislature concluded its history-making session by passing ballot referendums concerning constitutional revision and bonding authority for road construction and state parks, as well as a host of other progressive measures: strip mining, absentee voting, creation of a new Turnpike authority, establishment of a Division of Mental Retardation in the Welfare Department, and the creation of the first Child Welfare Department in the United States.120 "Never before in the history of Kentucky have more beneficial and far- reaching laws been passed," the Courier-Journal proclaimed. "We have grown accustomed to our lot…accustomed if not resigned to hearing our state spoken of slightingly, to seeing Kentucky rated near the bottom of the list of states in education and roads and public services."121 Now, thanks to the passage of the sales tax, there would finally be enough money to tackle the state's most serious challenges. Somewhere Committee for Kentucky Chairman Harry Schacter was smiling. The legislature's achievements were recognized by Time, which reported that Kentuckians "have reason to hope that a new day has dawned. The reason: a remarkable performance during his first months in office by Governor Bert Thomas Combs…Kentucky pols promptly predicted that the hated sales tax would kill Combs's political career. But Bert Combs professed no ambitions beyond his term's end in 1963."122

Governor Combs, with the aid and support of Bingham's newspapers, had clearly sold lawmakers on his progressive vision for the state. Now he needed to convince a skeptical public that his ambitious programs would work. But almost immediately that effort was complicated by a scandal involving Highway Commissioner Earle Clements. At issue was an agreement for the state to purchase thirty-four used dump trucks, of questionable condition, from a dummy corporation operated by Thurston Cooke, a Louisville area dealer, who had been the finance chair of the Combs-Wyatt campaign. In mid-April, the Courier-Journal's Kyle Vance broke the story and laid it at the feet of Earle Clements, who denied brokering the deal but nevertheless insisted it was good for the state.

The Courier-Journal editors registered their disapproval. "If the 34 trucks have 34 rear view mirrors meeting exacting specifications of the state, as we must assume they do, then Mr. Combs could well use one of them for a long backward look at something which may have escaped his attention before."123 Other newspapers piled on the criticism. The growing negative press convinced Combs to cancel the contract, signifying a public break with his mentor. The Courier-Journal editors applauded the move but chided the governor for taking a week to arrive at his decision. "We wish that we could say that the governor acted not only properly but also with remarkable promptness…but the episode

119 Sexton, Public Papers of Governor Combs, 25-32.

120 Banks Jr., Memoirs, 71-74.

121 Louisville Courier-Journal, March 20, 1960.

122 Time, March 28, 1960, 27.

123 Louisville Courier-Journal, April 14, 1960.

114 remains notable for a lack of vigilance and decisiveness in the Governor's office."124 Though not immediately, Earle Clements eventually did resign, citing a desire to join the 1960 Lyndon Johnson presidential campaign, but he never forgave Barry Bingham's newspapers for trumping up the story, and more importantly, Bert Combs for not coming to his defense.125

The Courier-Journal and Times saw Clements's exit as a welcome development, especially for an administration that had "pledged (a) new philosophy in state government, with revenue sufficient to upgrade state services in every field, and with an urgent need to get on with the job and show results." While the editors credited the "skilled political strategist," with engineering the Combs-Wyatt landslide, "as a former governor…and political enemy of another governor, A.B. Chandler, Mr. Clements is party to an old feud that has discomfited Kentucky democrats," therefore, "his departure from Frankfort represents a break from the past that at least psychologically liberates the Combs Administration."126 Liberated from or deprived of Clements's influence, the Combs administration nevertheless had much work to do to sell its program to the people of Kentucky.

Combs's public relations department launched an all-out effort to promote the anticipated quality of life improvements made possible by the sales tax, instructing cabinet members and state officeholders to talk about it at every turn. Staffers also closely monitored the opinion pages of newspapers across the commonwealth to gauge editors and readers' support, or opposition. Weekly aggregated "Kentucky Press Attitudes" reports reflected varying opinions. The McLean County News editorialized: "If Kentuckians say 'No' to the sales tax, they will be saying 'No' to education and to the aged, blind, dependent children and the disabled," while the Hardin County Enterprise opined: "And rest assured that the sales tax is going to be a burden…a burden upon those who…in income taxes, in property taxes and in special taxes, are already bearing more than their share of the tax load."127 Similar views were gleaned and distributed regarding the new state employee merit system, education funding, constitutional revision. After a few months compilers noted a distinct softening by most toward the sales tax issue, a possible result of the administration's attempts to influence the conversation. The report from the week of July 13, 1960 began with this notation:

Members of the Department of Public Relations have been writing to-the- editor letters, all different, on the sales tax and other Administration measures of policies. The letters are signed by persons not on the State payroll and not having obvious ties with the Administration, and are mailed to designated newspapers. This happens to be a case in which the spreading and repeating of ideas properly planted can be traced by wording.128

124 Ibid., April 21, 1960.

125 Pearce, Divide and Dissent, 134-139.

126 Louisville Times, August 19, 1960.

127 Kentucky Press Attitudes Reports, March 21-July 13, 1960, Folder 6, Box 115, Combs Papers.

128 Ibid.

115 What followed, for internal use only, were clear examples of letters that were printed verbatim with some of the main points lifted and used in newspaper editorials. This was the same practice John Ed Pearce advocated in his Wilson Wyatt campaign plan.

Combs designed a plan of his own that would bypass the media altogether. Not content to stay in the "goldfish bowl" of Frankfort, Combs desired to explain to people in the most personal way possible what his administration was trying to accomplish on their behalf. He launched a public relations initiative called "Taking the Government to the People." This involved bringing the governor and other administration officials to cities, small towns and rural communities for a day or two to conduct the state's business. Combs saw two benefits: it would allow citizens to come in contact with government officials and learn more about state government in general, and the governor, in turn, could obtain feedback on his programs. He quipped to the Louisville Courier-Journal "This will give the people an opportunity to fuss directly at me instead of through channels."129

Perhaps coincidentally, the first experiment took place in Harry Lee Waterfield's hometown of Mayfield[sic] where more than five hundred citizens kept the governor busy with a variety of requests. One man wanted to see a road built; a few other people came seeking employment opportunities, and some state workers stopped by to thank the governor for their jobs.130 Impressed with the success of the effort, the "Portable State Capital" program subsequently visited thirty-two more communities across the commonwealth over the span of the Combs term.

Meanwhile, as the sales tax slowly gained acceptance, the administration began to campaign for a $100,000,000 road and parks bond issue and the constitutional revision referendum, both scheduled to appear on the 1960 ballot. The legislature had authorized Combs to form a Constitution Revision Committee and he assembled a seven member panel which included former University of Kentucky President Herman Donovan, Kentucky State College President Rufus Atwood, and former Court of Appeals Chief Justice James W. Stites, with Attorney General John B. Breckenridge serving as an ex- officio member. The Courier-Journal editors said Combs had "succeeded in assembling an extraordinarily able and suitably represented group," pointing out that Judge Stites had also chaired a Constitution Review Commission in 1950 and could therefore bring a wealth of experience to what promised to be a laborious process.131 This group would be able to act more quickly should the referendum pass.

An impressive array of advocates, including University of Kentucky Law School Dean W.L. Matthews, political science professors E.G. Trimble, J.E. Reeves and likeminded counterparts from the University of Louisville, plus Democratic and Republican politicians including John Y. Brown, Keen Johnson, Wilson Wyatt, Earle Clements, and Louie B. Nunn, endorsed the effort. Combs himself gave more than thirty speeches pointing out that voters were only being asked to open up the process of exploring revision of the document, not revision itself, an important distinction. He implored the people to vote for revision explaining: "we have progressed from the horse and buggy to the automobile, to the airplane, and now we are on the threshold of travel into outer

129 Louisville Courier-Journal, August 18, 1960.

130 Mayfield Messenger, August 23, 1960.

131 Louisville Courier-Journal, April 17, 1960.

116 space…Kentuckians may be a patient people, but sixty-nine years is far too long to require them to wait for modernization of their constitution. They deserve better."132

The Courier-Journal's John Ed Pearce described the Kentucky Constitution as "a wordy, rambling monument to suspicion and distrust."

Kentucky in 1891 was a state still divided by emotions and interests echoing from the Civil War, divisions of white against black, farmers against townspeople, small farmers against big planters, agrarians against urbanites, Bluegrass against Ohio River cities, pro-Union Republicans against Democrats still burdened with southern memories, central Kentucky against the L & N Railroad, and small towns against each other in competition for railroads. The framers of the U.S. Constitution designed it not only to install liberty but to forestall tyranny…The danger of government, they realized, even one in which power rests with the people, is that it constantly risks giving people the power to destroy the liberties that permit them to govern…(whereas Kentucky's Constitution) protected the rights and liberties of the people by simply giving government too little power to threaten those rights and liberties. Instead of empowering government to act and limiting its power through checks and balances, it made government weak through constitutional curbs.133

The Louisville Courier-Journal and Times, highly critical of Combs during the Clements- Truck Deal imbroglio, nevertheless had long been an ardent supporter of constitutional revision and praised the administration for bringing the effort forward. The editors claimed that the charter crafted by lawmakers in 1891 was unnecessarily obtuse. "Instead of simply laying a good foundation for Kentucky's government," the paper observed, the authors "took such pride and pleasure in their work by imposing nearly insuperable difficulties upon the amending process."134 Bingham's newspapers warned that failure to act could bring about "a collapse of public education in Kentucky." The state's present constitution, they decried, "limits officers and employees with less than statewide duties to salaries of $7,200…much of the leadership in public education, like the leadership in other specialized fields, is now earning $12,000 to $22,000 a year. These specialists can command as much or more in private employment or on the payrolls of other states." Put simply, Kentucky could not afford to employ its best and brightest because of its outdated constitution.135

The Constitutional Revision Referendum was not without its opponents and critics, chief among them former Governor A.B. Chandler. Happy actively campaigned against the ballot measure claiming voters could open the door to unintended consequences. The Courier-Journal and Times took Combs's nemesis to task for his misinformation

132 Governor Combs' Remarks to Constitutional Convention, August 3, 1960, Folder 8, Box 82, Combs Papers.

133 Pearce, Divide and Dissent, 139-140.

134 Louisville Courier-Journal, April 17, 1960.

135 Louisville Times, July 21, 1960.

117 campaign: "His telecast speech Tuesday night…opened wide the gates of fantasyland in a labored effort to frighten Kentuckians with eerie visions of dictatorship, high taxes and other things befalling them and their loved ones…Nobody is trying to destroy the constitution or write a new one as he repeatedly implied…All they are called upon to decide…is whether they want a convention."136 Despite Combs, Bingham's newspapers and others' best efforts, the measure failed by about 18,000 votes. In Louisville and Jefferson County the proposal lost by 10,000 votes.137

Combs lamented the loss, as did the Courier-Journal. True, the editors saluted the national electoral triumph of Democrat John F. Kennedy over Republican Richard Nixon, even though the GOP candidate carried Kentucky by a wide margin. In addition voters had approved the "road-parks" bond issue, but the newspaper expressed disappointment that voters in the cities and their "supposed superior enlightenment," ultimately rejected a limited constitutional convention. Given that outcome the editors concluded that, "it was not a bright day for Kentucky."138 Combs preferred to cite the close vote as evidence that "more Kentuckians are interested in their constitution – in its faults and virtues." Because of that, he vowed to keep up the effort as long as he remained governor.139

The constitution referendum defeat was not all that surprising to political scientist Penny M. Miller, given Kentucky's traditional political culture. "Most Kentuckians, however, like 'restrictions' on government and 'progress' sounds very like 'liberal' to a Kentucky ear." In the final analysis Miller maintained that the Combs forces failed to make a compelling case: "When the abuses were not obvious to Kentuckians, their innate conservatism and general political apathy kept the constitution in place…The constitution has not inhibited Kentucky's development in any way. Rather, it is far more true to say that Kentucky's lack of economic and social change and absence of political activism on many issues have preserved the constitution."140 That was certainly the case in Louisville, according to John Ed Pearce, where the referendum failed because Democratic leaders there didn't want it to win…they were happy with what they already had; yet another victory for the status quo.141

Despite the setback, the Combs Administration's first-year review from the Louisville Courier-Journal could not have been more glowing. Political reporter Allan Trout wrote a lengthy column outlining a litany of the promises made and kept:

They promised to stop the assessment of employees for campaigns. They have done so. They promised a statutory merit system for state

136 Louisville Times, October 26, 1960.

137 Pearce, Divide and Dissent, 156-159.

138 Louisville Courier-Journal, November 11, 1960.

139 Governor Combs Remarks to Constitutional Reform Conference, November 29, 1960, Folder 4, Box 92, Combs Papers.

140 Miller, Kentucky Politics, 90-98.

141 Pearce, Divide and Dissent, 158.

118 employees…they have promised far-reaching election reforms. They obtained substantial of compulsory use of voting machines in all counties…They promised basic research in coal, tobacco, and agriculture and got it. They promised to stimulate new industry. They have done so not only with imaginative promotion, but with cash to back it up. They promised to raise the salaries of teachers from the bottom to near the national average. They raised them to 38th place this year, and the Kentucky teachers are expected to be in 36th place next year. They promised expansion of state parks as the basic attraction for more tourism. They have obtained $10,000,000 in voted bonds to do so. They promised more and better highways. They have obtained $90,000,000 in voted bonds for this purpose and that's on top of the $30,000,000 they inherited from Governor Chandler's $100,000,000 road bond issue approved in 1956. They promised expansion of public higher education and are giving it….They promised to take the sag out of Kentucky, to uplift the state from its accustomed place at the bottom of the list of states; to overcome in four years the generations of decadence wrought by penurious public service…More money is the bedrock of the Combs- Wyatt program. Without more money, their promises would have been mere mockery to the voters who elected them…The Governor has worked night and day, as a man obsessed, to impress upon the people that his Administration is, as he sees it, a psychological breakthrough. He feels the people of Kentucky, down in their hearts, want to be progressive; that now is the time to move with resolution in the direction of progress.142

The paper's editors went further claiming that "For the first time in its history, Kentucky has a government that is actually modern," hampered somewhat by its outdated constitution, "but modern in that it is dedicated to the task of making Kentucky a modern state, the equal of its sister states in the social, cultural and economic areas by which the excellence of the state is measured." The op-ed went on to acknowledge "bitter criticism" by some over the sales tax, (much of it unjustified) and encouraged Combs to step up efforts to "make the people aware of the true scope and benefits of his program."143

In a short time, Bert Combs, with the support of the Louisville Courier-Journal and Times had indeed fostered unprecedented progressive changes in a state not known for embracing them. He had helped Kentucky turn the corner from the Happy Chandler era and set it on a path to embrace the optimistic "can do" attitude that would become the hallmark of JFK's "New Frontier." The effort came at a price, however. Combs lost the counsel of his mentor, Earle Clements, who after the embarrassment of the "Truck Deal," never again ran for public office. As a result, Combs became the powerful leader of the anti-Chandler faction, solidifying his reputation as a forward-thinking governor and while in office, helped elevate Kentucky's standing and reputation among other states.

142 Louisville Courier-Journal, December 4, 1960.

143 Ibid.

119 Bibliography

Primary Sources

Chandler, Albert B. "Happy" Collection, 1920-1974, 77M1, Special Collections and Digital Programs, University of Kentucky Libraries, Lexington.

Clements, Earle C. Papers, 1940-1960, 1M76M2, 1M82M6, AAL7185LM, Special Collections and Digital Programs, University of Kentucky Libraries, Lexington.

Combs, Bert T. Collection, 1959-1990, 96MS7, Special Collections and Digital Programs, University of Kentucky Libraries, Lexington.

Wyatt, Wilson W. Papers, 1926-1992, 95m4, Special Collections and Digital Programs, University of Kentucky Libraries, Lexington.

Secondary Sources

Abrams, Richard M. America Transformed: Sixty Years of Revolutionary Change, 1941- 2001. New York: Cambridge University Press, 2006.

Ausenbaugh, James D. At Sixth and Broadway: Tales From the Glory Days of a Great Newspaper. Scottsville: Mews Publishing Company, 1998.

Banks, Jr., Fontaine. Memoirs: Half a Century in Kentucky Politics: 1955-2008. Lexington: Clark Group, 2008.

Black, Earl. Southern Governors and Civil Rights: Racial Segregation as a Campaign Issue in the Second Reconstruction. Cambridge: Harvard University Press, 1976.

Bradlee, Ben. A Good Life, Newspapering and Other Adventures. New York: Simon & Schuster, 1995.

Campbell, Tracy. Short of the Glory: The Fall and Redemption of Edward F. Prichard Jr. Lexington: University Press of Kentucky, 1998.

Chandler, Albert B., & Trimble, Vance H. Heroes, Plain Folks, and Skunks: The Life and Times of Happy Chandler. Chicago: Bonus Books, 1989.

Chandler, David Leon. The Binghams of Louisville: The Dark History behind One of America's Great Fortunes. New York: Crown Publishers, 1987.

Eller, Ronald D. Uneven Ground: Appalachia since 1945. Lexington: University Press of Kentucky, 2008.

Ford, Thomas R., Health and Demography in Kentucky. Lexington: University of Kentucky Press, 1964.

Gillon, Steven M. Politics and Vision: The ADA and American Liberalism, 1947-1985, New York: Oxford University Press, 1987.

120 Grantham, Dewey W. The Life & the Death of the Solid South, Lexington: University Press of Kentucky, 1988.

Harrison, Lowell H. and Klotter, James C. A New History of Kentucky. Lexington: University Press of Kentucky, 1997.

Hill, John Paul. "The Forgotten Campaign: The 1955 Kentucky Gubernatorial General Election." The Filson Historical Club Quarterly, Vol. 75, No. 1, Winter, 2001.

Ireland, Robert M. Little Kingdoms: The Counties of Kentucky: 1850-1891. Lexington: University Press of Kentucky, 1977.

Jewell, Malcolm E. and Cunningham, Everett W. Kentucky Politics. Lexington: University of Kentucky Press. 1968.

Klotter, James C. Kentucky: Portrait In Paradox, 1900-1950. Lexington: University Press of Kentucky. 1996.

K'Meyer, Tracy E. Civil Rights in the Gateway to the South: Louisville, Kentucky 1945- 1980. Lexington: University Press of Kentucky, 2009.

Miller, Penny M. Kentucky Politics and Government: Do We Really Stand United? Lincoln: University of Nebraska Press, 1994.

Pearce, John Ed. Divide and Dissent: Kentucky Politics, 1930-1963. Lexington: University Press of Kentucky, 1987.

Pearce, John Ed. Memoirs: 50 Years at the Courier-Journal and Other Places. Louisville: The Sulgrave Press, 1997.

Peirce, Neal R. The Deep South States of America: People, Politics, and Power in the Seven Deep South States. New York: W.W. Norton & Company, 1974.

Robinson, George W., ed. Bert Combs the Politician: An Oral History. Lexington: University Press of Kentucky, 1991.

Schacter, Harry W., Kentucky on the March – President, Committee for Kentucky. New York: Harper & Brothers, 1949.

Sexton, Robert F., ed., The Public Papers of Governor Bert Combs, 1959-1963. Lexington: University Press of Kentucky. 1979.

Smith, Al. Kentucky Cured: Fifty Years in Kentucky Journalism. Charleston: The History Press, 2012.

Smith, Al, Wordsmith: My Life in Journalism. Lexington: Clark Group, 2011.

Thomas, Samuel W., ed., Barry Bingham: A Man of His Word. Lexington: University Press of Kentucky. 1993.

121 Tift, Susan E. and Jones, Alex S. The Patriarch: The Rise and Fall of the Bingham Dynasty. New York: Summit Books, 1991.

Trout, Allan M., The Diversified Career of Harry Lee Waterfield. (Pamphlet published November 1, 1972, on behalf of the Jackson's Purchase Historical Society), University of Kentucky Special Collections, Lexington, KY.

Wyatt, Wilson W. Sr. Whistle Stops: Adventures in Public Life. Lexington: University Press of Kentucky. 1985.

Interviews

Combs, Sara, Lexington, Kentucky. February 19, 2015.

Crouch, Ron, Lexington, Kentucky. March 11, 2015.

Klotter, James C., Lexington, Kentucky. April 1, 2014.

Mills, Don. Lexington, Kentucky. March 27, 2014.

Murray, Michael, Lexington, Kentucky. March 31, 2014.

Smith, Al, Lexington, Kentucky. March 7, 2014.

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