By: Junis Baldon
The latest salvo in the ongoing battle between Governor Matt Bevin and Attorney General Andy Beshear trickled into the General Assembly this past legislative session, and almost led to a fundamental restructuring of executive power in Kentucky. HB 281, which started as an effort to increase public transparency and oversight over the Attorney General’s use of outside legal counsel, turned into a fight about the authority of the Attorney General to represent Kentuckians in state and federal courts. Amendments by Senate President Robert Stivers to HB 281 threatened to strip the Attorney General of certain powers to litigate cases on behalf of the Commonwealth. HB 281 could have opened a new dynamic in the Beshear-Bevin political feud, and had tremendous implications for average Kentuckians.
So, what does the Attorney General do? The Attorney General is the state’s chief law enforcement officer, and may use that authority to sue actors to enforce compliance with state law or otherwise advocate for Kentuckians in state and federal court. In a recent decision, the Kentucky Supreme Court, in tracing the history of attorneys general back centuries, concluded that the Attorney General has the “power to act to enforce the state’s statutes,” and a “discretionary duty under the common law rarely modified by statute to protect the public interests of any of the people who elected him.” Beyond enforcing the state’s criminal and environmental laws, the Attorney General often takes on corporations that swindle Kentucky consumers. For example, former Kentucky Attorney General Jack Conway entered into a consent decree with a for-profit college that allegedly violated Kentucky consumer protection laws. That decree resulted in a payment of $12.4 million to the for-profit college’s alleged victims. In short, many Kentuckians rely upon the Attorney General to protect and vindicate their interests.
But unlike in the federal government, the Attorney General does not serve at the pleasure of the chief executive. The source of the current political feud between Attorney General Beshear and Governor Bevin has been Beshear’s willingness to exercise his independent authority to sue the Governor for purported overreach. Beshear won significant victories over Bevin in two cases involving cuts to higher education and the abolishment of the University of Louisville’s board of trustees. These types of high-stakes court battles between governors and attorneys general from opposite parties are not unusual. Currently, 43 states elect both attorneys general and governors through popular election, which can result in high-profile legal fights. In Louisiana, for instance, the political inverse of the Beshear-Bevin feud is currently taking place. There, Republican Attorney General Jeff Landry has sued Democratic Governor John Bel Edwards over an executive order extending workplace discrimination protections to LGBT state government employees. Landry won, and Edwards has now appealed.
As introduced by Republican State Representative Jason Nemes of Louisville, HB 281 would have restricted the power of Attorney General Beshear to hire outside legal counsel on a contingency fee basis. But amendments to HB 281 by Senate President Stivers went further, and proposed to remove the Attorney General’s ability to file amicus briefs in the name of the Commonwealth.
Amended HB 281 would instead vest “exclusive authority” to file amicus briefs with the Governor, members of the General Assembly, and Kentucky’s other constitutional officers. The amended bill also required the Attorney General to notify the Governor’s Office when he entered an appearance in a case, and required separate notice to the Governor’s Office in cases involving the constitutionality of a state law.
The removal of the Attorney General’s authority to file amicus briefs is significant. Amicus briefs allow the Attorney General to have a say in a case without being a party. They are especially important in litigation involving civil rights, consumer protection, and environmental law, and are routinely filed at the U.S. Supreme Court. Judges pay particular attention to amicus briefs from attorneys general because they represent the official legal position of a state. Further, requiring notice to the Governor’s Office in cases involving the Attorney General and constitutional challenges would permit Governor Bevin to exercise a level of oversight that the framers of the Kentucky Constitution apparently rejected. Indeed, had the framers wanted the Governor to exercise such authority over the Attorney General, they could have used the federal government as a model or specifically outlined the Attorney General’s powers.
Senate President Stivers and other Senate Republicans justified these changes by citing former Attorney General Jack Conway’s failure to defend Kentucky’s same-sex marriage ban. Conway’s decision was ultimately vindicated when the U.S. Supreme Court invalidated the same-sex marriage ban in Obergefell v. Hodges. They also cited Attorney General Beshear’s lackluster defense of the General Assembly’s newly enacted abortion ultrasound law, and his decision not to defend the 20-week abortion ban, which the General Assembly also recently passed. Beshear has said that the 20 week abortion ban is unconstitutional, and two federal appeals courts have already invalidated similar laws in Idaho, Arizona, Arkansas, and North Dakota. Having the Attorney General exercise his independent discretion to defend laws that have already been invalidated by other federal courts is an exercise in futility and a waste of taxpayer funds.
Senate Republicans also relied upon the general language in Section 91 of the Kentucky Constitution—that the Attorney General’s powers “shall be prescribed by law . . ..” That undoubtedly gives the General Assembly tremendous power over the Attorney General. But political disagreement between the Governor and Attorney General is no reason to change the historical diffusion of executive power between the two officials. The Beshear-Bevin feud is simply the natural consequence of our state constitution. By creating an independent Attorney General and making the office subject to popular election, the framers of the Kentucky Constitution must have anticipated the possibility that the Attorney General and Governor could be from different political parties with different views. And if the Kentucky Supreme Court is to be believed, only the Attorney General has the power to represent Kentucky and its citizens, which suggests that amicus briefs and any other court actions can only be submitted on behalf of the Commonwealth of Kentucky by the Attorney General. Thus, it is doubtful whether the amended version of HB 281 could have even passed constitutional muster.
Thanks to the House—or, better yet, the legislative calendar—the General Assembly is barred from considering amended HB 281 further. But if Attorney General Beshear and Governor Bevin remain at odds, don’t be surprised to see a renewed push to alter the Attorney General’s powers in the next legislative session.