Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
State Capitol
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 17 in which you seek an opinion concerning the following:
"In accordance with KRS 13.085(2), emergency regulations expire on sine die adjournment of the next regular session of the general assembly, provided that between the filing of the regulation and the sine die adjournment, the proposed regulation may be processed in accordance with this section if the administrative body desires it to become permanent after sine die adjournment of the next regular session of the general assembly.
"The following question has been raised; 'If an existing regulation is amended due to an emergency, and therefore expires on sine die adjournment of the general assembly, does the regulation expire in its entirety on adjournment, or does only the amendment which was made due to the emergency expire, so that the regulation once again exists as it read prior to the emergency amendment?'
Your question indicates that the emergency amendment to the regulation is in fact an addition "made due to the emergency" which would mean that it is severable from the original regulation. We find no case law interpretating the provision of KRS 13.085 (2) with respect to your question. Therefore we believe it necessary to draw a parallel from a similar situation that may exist with respect to the repeal of an amendment to a particular statute under KRS 446.100. In the case of United States Fidelity & Guaranty Co. v. Steele, 241 Ky. 848, 45 S.W.2d 469 (1932), the court declared that where the amending act simply adds an additional provision to the amended act, the repeal of the amending act leaves the amended act in force as it was before the amendment.
Another apparent parallel to this view may be drawn from KRS 446.160 dealing with the result of the unconstitutionality of an amendment to a statute. In this respect we find the court declaring in the case of Commonwealth v. Malco-Memphis Theatres, Inc., 293 Ky. 531, 169 S.W.2d 596 (1943), that the enactment of a void amendment did not affect the original act which remained operative (see other cases cited). See also 73 Am.Jur. 2d, Statutes, § 343.
Under the circumstances, we believe that where an emergency amendment to a regulation that is peculiar to the emergency and, therefore, severable, becomes inoperative because or the sine die adjournment of the next session of the general assembly, the regulation as it existed prior to the amendment would remain in full force and effect. Note also the severability statutes, KRS 446.090.