[1994/oagheade.htm]

OAG 94-5

February 7, 1994

Joseph U. Meyer

State Senator

106 West Eleventh Street

Covington, Kentucky 41011

Re: Separation of Powers

Dear Senator Meyer:

This letter responds to your recent request that we consider certain delegations of authority to judicial officers in light of the separation of powers analysis that we provided in OAG 93-70.

Your letter describes five situations in which a judicial officer either holds an administrative power of appointment or sits on an administrative board. Because each of the situations is unique, we will answer your questions separately.

1. May a Justice of the Kentucky Supreme Court, or any other elected or appointed official in the Judicial Department serve on a board or commission outside of the Judicial Department of state government? Specifically, may a Justice of the Supreme Court or other Judicial Department official serve on the Board of Trustees of the University of Kentucky or as a regent or trustee at any of the state's universities?

Section 28 of the state constitution provides that no person shall exercise power in more than one of the three departments of government. In cases such as Commonwealth v. Partin, Ky.App., 702 S.W.2d (1985), and Burton v. Mayer, 274 Ky. 245, 118 S.W.2d 161 (1938), courts have held that a judge cannot hold an office or perform a function that is executive in nature. Plainly, the board of regents of a university-which under KRS 164.350 is responsible for the "government of each of the state universities and colleges"-performs an executive function in administering the university's affairs. Therefore it would be a violation of section 28 of the state constitution for a judge or justice to sit on the board of regents of a state university.

Regarding the University of Kentucky, KRS 164.150 provides that the university's trustees are not public officials. Therefore there is no conflict between serving as a trustee and holding an elective office. Commonwealth ex rel. Cowan v. Wilkinson, Ky., 828 S.W.2d 610 (1992).

2. May a Chief District Judge appoint the members of the foster care review board in the judge's judicial district, as provided in KRS 620.190?

KRS 620.190 establishes a foster care citizen review board in each judicial district. The duty of the boards is to review each commitment of a child to the Cabinet for Human Resources and to submit recommendations to the court. The boards have no authority or power other than this limited responsibility. They function in a manner somewhat analogous to a commissioner of circuit court; that is, they play a judicial support role by providing information and advice to the court. The constitution specifically authorizes appointments and other actions by judicial officers related to "necessary administrative functions." Ky.Const. � 110. Therefore we conclude that district judges may appoint members of foster care citizen review boards.

3. May the Kentucky Supreme Court appoint members of the Public Advocacy Commission, as provided in KRS 31.015(1)(d)?

In Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984), the Supreme Court held that the separation of powers doctrine invalidates KRS 31.015(1)(b) and (c), which purport to authorize legislative officers to appoint two members of the Public Advocacy Commission. As you note, KRS 31.015(1)(d) purports to authorize judicial officers to make appointments to the Public Advocacy Commission. Obviously, if the constitution forbids legislative officers to make these appointments, then it also forbids judicial officers to make them. Therefore KRS 31.015(1)(d) contains the same constitutional defect as KRS 31.015(1)(b) and (c).

4. May a retired justice or judge of the Court of Justice who serves as a special judge, pursuant to KRS 26A.020, serve on any government board or agency outside the Judicial Department?

The separation of powers doctrine does not apply to persons who are appointed on a temporary basis to perform a particular task. Craig v. O'Rear, 199 Ky. 553, 251 S.W. 828 (1923). These persons are denominated temporary agents rather than officers. Id. at 830. Because special judges are temporary agents rather than officers, they may serve on executive boards and agencies, provided of course that they comply with the Code of Judicial Conduct.

5. May the director of the Administrative Office of the Courts or his designee serve on the Child Support Enforcement Commission, as authorized by KRS 15.290(1)(c)?

We said in OAG 85-33 that the separation of powers doctrine does not apply to positions that are merely advisory in nature. In that opinion we found that a legislator could be a member of a body called the Governor's State Child Support Commission. That commission now exists as the Child Support Enforcement Commission, and it remains an advisory body. Therefore both judges and legislators may be members of that commission.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General