Could Kentucky judges serve on university boards or appoint members of other government bodies?

Plain-English summary

In 1994, Kentucky's Attorney General answered five separation-of-powers questions about judicial officers. A sitting judge or justice could not sit on a state-university board of regents exercising executive authority. The opinion distinguished University of Kentucky trustees because KRS 164.150 said they were not public officials, and it found no conflict between that trusteeship and elective office.

The AG allowed a chief district judge to appoint members of a foster-care citizen review board that assisted courts. It said the Supreme Court could not make the specified appointments to the Public Advocacy Commission. A retired judge serving temporarily as a special judge could also serve on an executive board, subject to the Code of Judicial Conduct, and judges could sit on the advisory Child Support Enforcement Commission. These different answers turned on the particular body's function and the officer's status.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

University boards

The AG read Section 28 of the Kentucky Constitution as preventing a judge from exercising executive power. It treated state-university regents' responsibility for university government under KRS 164.350 as an executive function, so a judge or justice could not sit on such a board. It distinguished University of Kentucky trustees because the cited statute characterized them differently and said there was no conflict with holding elective office.

Court-support and public advocacy appointments

Foster-care citizen review boards reviewed child commitments and made recommendations to courts. The AG treated them as judicial support, so a chief district judge could appoint their members under KRS 620.190. By contrast, it said KRS 31.015(1)(d)'s authorization for Supreme Court appointments to the Public Advocacy Commission had the same constitutional defect as legislative appointments to that body identified in a prior Supreme Court decision.

Special judges and advisory commissions

The opinion treated a retired judge temporarily serving as a special judge as a temporary agent, rather than an officer for the separation-of-powers rule. It said such a person could serve on an executive board if the Code of Judicial Conduct allowed it. It also characterized the Child Support Enforcement Commission as merely advisory and said judges and legislators could sit on it.

Common questions

Could a sitting judge serve on a state-university board of regents?

The AG said no because it viewed a regent's governance role as executive, outside the judicial department.

Did the AG reach the same answer for University of Kentucky trustees?

No. It cited KRS 164.150's statement that UK trustees were not public officials and found no conflict between trusteeship and elective office.

Could a chief district judge appoint foster-care review-board members?

Yes. The AG treated those boards' recommendations to courts as a judicial support function.

Could the Supreme Court appoint Public Advocacy Commission members?

The AG said no. It found the judicial appointment provision constitutionally defective for the same reason an earlier case rejected legislative appointments to that commission.

What about a retired special judge or a judge on an advisory commission?

The AG said a temporary special judge could serve on an executive board subject to judicial-conduct rules, and a judge could serve on the advisory Child Support Enforcement Commission.

Background and statutory framework

Senator Meyer asked how the office's earlier separation-of-powers analysis applied to five judicial appointment or service arrangements. The AG used Section 28 of the Kentucky Constitution for the cross-branch rule, examined the duties of the specific boards, and distinguished temporary service and merely advisory roles. Its answers depended on the 1994 statutes and the functions described in the opinion.

Citations and references

• KRS 164.350 and KRS 164.150: state-university regents and University of Kentucky trustees.
• KRS 620.190: foster-care citizen review boards.
• KRS 31.015(1)(d): Supreme Court appointment provision the AG found defective.
• KRS 26A.020: temporary special-judge service.
• KRS 15.290(1)(c): Child Support Enforcement Commission membership.
• Legislative Research Commission v. Brown, Ky., 664 S.W.2d 907 (1984): decision cited for the Public Advocacy Commission issue.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-005.htm

Original opinion text

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