separation of powers doctrine in Kentucky

2024The Court rejected any separation-of-powers violation under Sections 27 and 28 of the Kentucky Constitution, because “the Lieutenant Governor is a member of the executive branch of government.” Legislative Research Comm’n By and Through Prather v. Brown, 664 S.W.2d 907, 923 (Ky. 1984) (discussing Rouse). “[T]he power of appointment was indeed properly lodged in the commission, a part of the executive branch of government.” Id. 6 The Lieutenant Governor, at that time, was a separately elected position.

2024The Court rejected any separation-of-powers violation under Sections 27 and 28 of the Kentucky Constitution, because “the Lieutenant Governor is a member of the executive branch of government.” Legislative Research Comm’n By and Through Prather v. Brown, 664 S.W.2d 907, 923 (Ky. 1984) (discussing Rouse). “[T]he power of appointment was indeed properly lodged in the commission, a part of the executive branch of government.” Id. 6 The Lieutenant Governor, at that time, was a separately elected position.

2015See Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 457 (.1922) (“Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution....’’); Dierner v. Commonwealth, 786 S.W.2d 861, 864 (Ky. 1990) ("Kentucky is a strict adherent to the separation of powers doctrine.”). .

2005See also Diemer v. Commonwealth, 786 S.W.2d 861, 864 (Ky.1990) (“Kentucky is a strict adherent to the separation of powers doctrine.”); Sibert, 246 S.W. at 458 (“The purpose was to have each of them to so operate in their respective spheres. as to create checks to the operations of the others and to prevent the formation by one department of an oligarchy through the absorption of powers belonging to the others.”).

2015See Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 457 (.1922) (“Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution....’’); Dierner v. Commonwealth, 786 S.W.2d 861, 864 (Ky. 1990) ("Kentucky is a strict adherent to the separation of powers doctrine.”). .

2015See Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 457 (.1922) (“Perhaps no state forming a part of the national government of the United States has a Constitution whose language more emphatically separates and perpetuates what might be termed the American tripod form of government than does our Constitution....’’); Dierner v. Commonwealth, 786 S.W.2d 861, 864 (Ky. 1990) ("Kentucky is a strict adherent to the separation of powers doctrine.”). .

2019Reneer, 734 S.W.2d 794, 796 (Ky. 1987), this Court recognized KRS 532.055 as “a legislative attempt to invade the rule making prerogative of the Supreme Court by legislatively prescribing rules of practice and procedure [and therefore] it violates the separation of powers doctrine enunciated in Section 28 of the Kentucky Constitution.” In the spirit of comity, this Court declined to hold the statute unconstitutional and agreed to follow it for the time being.

2018As an aside, we review the interplay between ~RS 532.055 and KRS 532.025 mindful that in Commonwealth v. Reneer, we recognized KRS 532.055 as "a legislative attempt to invade the rule making prerogative of the Supreme Court by legislatively prescribing rules of practice and procedure [and therefore] it violate[d] the separation of powers doctrine enunciated in Section 28 of the Kentucky Constitution." 734 S.W.2d 794, 796 (Ky. 1987).

2007Simmons’s second contention is that by issuing the serve-out order, the Parole Board, as an administrative body of the executive branch of government, erroneously exercised power belonging to the legislative and judicial branches of government and thereby exceeded its authority under KRS 13A.130. 4 In Prater v. Commonwealth, 82 S.W.3d 898, 901 (Ky.2002), our Supreme Court set out the following analysis regarding the separation of powers doctrine: Sections 27 and 28 of the Kentucky Constitution explicitly require separation of powers between the branches of government: The powers of the governm

2004Because K.R.S. 532.055 is a legislative attempt to invade the rule making prerogative of the Supreme Court by legislatively prescribing rules of practice and procedure, it violates the separation of powers doctrine enunciated in Section 28 of the Kentucky Constitution." (citation omitted)). [11] Prater v. Commonwealth, Ky., 82 S.W.3d 898, 907 (2002) ("No section of the Kentucky Constitution authorizes the judicial branch to exercise executive power if the executive is `along for the ride.'"). [12] KY.

2022As noted in Legislative Research Commission By and Through Prather v. Brown, 664 S.W.2d 907, 912 (Ky. 1984) (citing Arnett v. Meredith, 275 Ky. 223 , 121 S.W.2d 36, 38 (1938)), “the separation of powers doctrine is fundamental to Kentucky’s tripartite system of government and must be ‘strictly construed.’” Kentucky Constitution § 28 prohibits any one of the three branches of government from exercising “any power belonging to either of the others[.]” The enforcement of the criminal laws of this Commonwealth lies within the “exclusive” mandate of the executive branch.

2022As noted in Legislative Research Commission By and Through Prather v. Brown, 664 S.W.2d 907, 912 (Ky. 1984) (citing Arnett v. Meredith, 275 Ky. 223 , 121 S.W.2d 36, 38 (1938)), “the separation of powers doctrine is fundamental to Kentucky’s tripartite system of government and must be ‘strictly construed.’” Kentucky Constitution § 28 prohibits any one of the three branches of government from exercising “any power belonging to either of the others[.]” The enforcement of the criminal laws of this Commonwealth lies within the “exclusive” mandate of the executive branch.

2005In the O’Bryan case the Kentucky Supreme Court held KRS 411.188(3) unconstitutional as violating the separation of powers doctrine. 892 S.W.2d at 578 .

2002CONST. § 116; O'Bryan v. Hedgespeth, Ky., 892 S.W.2d 571, 576 (1995) ("Kentucky Constitution Section 116 vests exclusive jurisdiction in the Supreme Court to prescribe 'rules of practice and procedure for the Court of Justice.' Responsibility for deciding when evidence is relevant to an issue of fact which must be judicially determined! ] • • • falls squarely within the parameters of 'practice and procedure’ assigned to the judicial branch by the separation of powers doctrine and Section 116.”). .

2016With a limited exception not germane to this appeal, 7 in Manns v. Commonwealth, 80 SW.3d 439, 444 (Ky.2002), we extended our grant of comity to KRS 532.055(2)(a)6.

2012Manns v. Commonwealth, 80 S.W.3d 439, 443 (Ky.2002).

2024However, this hybrid approach was untenable and in Jones, 319 S.W.3d at 295 , we held the prior version of KRS 532.043(5) was unconstitutional because it violated the separation of powers doctrine.

2024Nevertheless, we opined the legislature could, “consistent with the separation of powers doctrine, create a form of conditional release with terms and supervision by the executive branch.” Id.

2025Rooted in both common law and the constitutional doctrine of separation of powers, historically the rule has been that “a state agency is entitled to immunity from tort liability to the extent that it is performing a governmental, as opposed to a proprietary, function.” Sheehy, 706 S.W.3d at 236 (quoting Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001)). -13- However, the General Assembly, via KRS 70.040, waived the sovereign immunity traditionally enjoyed by the office of sheriff, imposing liability on the office for acts committed by the sheriff’s deputies.

2025Rooted in both common law and the constitutional doctrine of separation of powers, historically the rule on immunity has been that “a state agency is entitled to immunity from tort liability to the extent that it is performing a governmental, as opposed to a proprietary, function.” Sheehy v. Volentine, 706 S.W.3d 229 , 236 (Ky. 2024) (quoting Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001)).

2025As the Kentucky Supreme Court explained in Ex parte Farley, supra, and reaffirmed in Jones, supra, legislative interference with internal judicial branch administration violates the separation of powers doctrine and is not allowed. -8- The Kentucky Supreme Court has not extended any measure of comity to the Personnel Board in matters involving judicial employees.

2019LRC contends the lower courts’ interpretation of KRS 7.119(3) violates the separation of powers doctrine and ignores the directly analogous circumstance in Ex parte Farley, 570 S.W.2d 617 (Ky. 1978), a case in which the judicial branch declared itself exempt from the entire ORA scheme.

2013Id.

2013For example, in O’Bryan v. Commonwealth, we held a change of venue statute unconstitutional as a violation of separa tion of powers, but added: “Until this statute is superseded by this Court, under the Court’s paramount rule-making authority, it stands as enacted by the General Assembly under the principles of comity elucidated in Ex Parte Auditor of Public Accounts, Ky., 609 S.W.2d 682 (1980).” 634 S.W.2d 153, 158 (Ky.1982).

2024A void-for-unintelligibility claim, though, stands on the separation-of-powers doctrine, to wit, “[w]here a statute is unintelligible, the courts cannot interpret it but instead must speculate about the legislative intent: such judicial speculation is effectively unauthorized judicial legislation.” Id. at 13 (citing Bd. of Trustees, 132 S.W.3d at 781 ).

2024“The question posed is whether the people the statute affects can understand it and the courts can deduce the legislature’s will.” Id. (citing Folks v. Barren Cty., 313 Ky. 515 , 232 S.W.2d 1010 , 1013 (1950)).

2026The political question doctrine, which is primarily grounded in the separation of powers doctrine, states that “the judicial department should not interfere in the exercise by another department of a discretion that is committed by a textually demonstrable provision of the Constitution to the other department, or seek to resolve an issue for which it lacks judicially discoverable and manageable standards[.]” Fletcher v. Commonwealth, 163 S.W.3d 852, 860 (Ky. 2005) (citing Baker v. Carr, 369 U.S. 186, 210 (1962); Powell v. McCormack, 395 U.S. 486, 518 (1969); Vieth v. Jubelirer, 541 U.S. 267, 2

2026The political question doctrine, which is primarily grounded in the separation of powers doctrine, states that “the judicial department should not interfere in the exercise by another department of a discretion that is committed by a textually demonstrable provision of the Constitution to the other department, or seek to resolve an issue for which it lacks judicially discoverable and manageable standards[.]” Fletcher v. Commonwealth, 163 S.W.3d 852, 860 (Ky. 2005) (citing Baker v. Carr, 369 U.S. 186, 210 (1962); Powell v. McCormack, 395 U.S. 486, 518 (1969); Vieth v. Jubelirer, 541 U.S. 267, 2

2026The political question doctrine, which is primarily grounded in the separation of powers doctrine, states that “the judicial department should not interfere in the exercise by another department of a discretion that is committed by a textually demonstrable provision of the Constitution to the other department, or seek to resolve an issue for which it lacks judicially discoverable and manageable standards[.]” Fletcher v. Commonwealth, 163 S.W.3d 852, 860 (Ky. 2005) (citing Baker v. Carr, 369 U.S. 186, 210 (1962); Powell v. McCormack, 395 U.S. 486, 518 (1969); Vieth v. Jubelirer, 541 U.S. 267, 2

2026The political question doctrine, which is primarily grounded in the separation of powers doctrine, states that “the judicial department should not interfere in the exercise by another department of a discretion that is committed by a textually demonstrable provision of the Constitution to the other department, or seek to resolve an issue for which it lacks judicially discoverable and manageable standards[.]” Fletcher v. Commonwealth, 163 S.W.3d 852, 860 (Ky. 2005) (citing Baker v. Carr, 369 U.S. 186, 210 (1962); Powell v. McCormack, 395 U.S. 486, 518 (1969); Vieth v. Jubelirer, 541 U.S. 267, 2

2025This Court also lacks the authority to adopt the fugitive tolling doctrine under the separation of powers doctrine, which “precludes each of the three branches of government from encroaching upon the domain of the other two branches.” Wilfong v. Commonwealth, 175 S.W.3d 84, 91 (Ky. App. 2004).

2025This doctrine is enshrined in the Kentucky Constitution: “Section 27 . . . creates three distinct branches of government and Section 28 precludes one branch from exercising any power properly belonging to either of the other two branches.” Id.

2025Sheehy, 706 S.W. 3d at 236 (citing Jones v. Cross, 260 S.W.3d 343, 346 (Ky. 2008)).

2025Additionally, the Court of Appeals rejected the Commonwealth’s argument for adopting the fugitive tolling doctrine because doing so would violate the separation of powers clause in the Kentucky Constitution, the General Assembly has not enacted such a statute, and this Court chose not to adopt it in Commonwealth v. Tapp, 497 S.W.3d 239, 241 (Ky. 2016).

2025Id.

2025Trial court’s dismissal violates the separation-of-powers doctrine vis-à-vis the grand jury. “[T]he grand jury is an agency of neither the court nor the prosecutor, but an independent agency of constitutional origin . . . .” Hoskins, 150 S.W.3d at 18 ; Democratic Party of Ky. v. Graham, 976 S.W.2d 423, 427 (Ky. 1998) (“[T]he grand jury is an institution of constitutional origin in Kentucky.”).

2024Moreover, Jameson does not explain how the inclusion of laypersons on the JCC runs afoul of the U.S. Constitution by depriving him of due process. 9 “As did the [U.S.] Supreme Court in Powell v. Alabama, [ 287 U.S. 45 (1932)], we consider due process as embodying those fundamental principles of liberty 9 Judge Jameson’s argument also states that the inclusion of laypersons on the JCC violates the separation of powers doctrine but fails to elaborate on that contention. 14 and justice which lie at the base of our civil and political institutions.” Ditty v. Hampton, 490 S.W.2d 772, 774 (Ky. 1972)