Request By:
Hon. James L. Dickinson
Deputy General Counsel
Office of the Governor
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Charles W. Runyan, Assistant Deputy Attorney General
In a letter dated April 27, 1982 you called to our attention that confirmation of Executive Order number 80-368 had been denied by the General Assembly as evidenced by House Bill 143. You posed the following inquiries:
"(1) In light of the fact that the terms of office for the new commission members of the racing commission do not begin until July 1, 1982, does the racing commission as presently organized under Executive Order 80-368 have the necessary jurisdiction to regulate the conduct and business of thoroughbred racing in Kentucky?
"(2) If the racing commission as organized under Executive Order 80-368 does not have any legal authority to regulate the racing business, can the Governor issue a valid executive order creating a racing commission to serve from this date until July 1, 1982?"
Before attempting to respond to your specific inquiries, we will examine Executive Order 80-368 as well as the pertinent provisions of House Bill 143. Executive Order 80-368 expanded the membership of the Racing Commission from five to nine commissioners and provided that all terms of office other than the initial terms would be for four years. The Executive Order appointed nine persons to hold the initial terms of office and set their terms at varying lengths. The effect of this was to create staggered terms. All appointments became effective May 1, 1980 and were to expire on April 30 of the appropriate year. The persons named to the office of commissioner and their initial term of office are as follows:
1. Robert C. Stilz for one year
2. Brownell Combs, II for one year
3. William M. DeHart for two years
4. Arthur B. Hancock, III for two years
5. R. C. Durr for two years
6. Edward J. McGrath for three years
7. Dale Sights for three years
8. Robert Luis Green for three years
9. Anita Madden for three years
It should be observed that the terms of Commissioners Stilz and Combs have expired. In Executive Order 81-425 the Governor appointed Robert C. Stilz and William B. Sturgill to the vacant offices for four year terms. The terms of Commissioners DeHart, Hancock and Durr will expire on April 30, 1982.
Section 1 of House Bill 143 creates a nine member Racing Commission. However, only seven of the commissioners are to be appointed by the Governor. The other two commissioners are to be appointed respectively by the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The appointees of the Governor are to serve an initial term beginning July 1, 1982 and ending January 1, 1984 or until their successors are appointed and qualified. After the initial two year term the Governor's appointees will serve a four year term. The appointees of the President Pro Tempore of the Senate and the Speaker of the House of Representatives shall serve four year terms beginning July 1, 1982 or until their successors take office.
There may be some question as to the constitutionality of the appointments made by the President Pro Tempore of the Senate and the Speaker of the House of Representatives. However, since we need not deal with this problem in answering your inquiries, we decline to comment further on this topic at this time.
The first issue to be resolved is the date the new Commissioners appointed under Section 1 of House Bill 143 take office. The date of adjournment of the 1982 General Assembly was April 20, 1982. Therefore House Bill 143 would not go into affect until July 19, 1982 in absence of an Emergency Clause.
Section 9 of House Bill 143 provides as follows:
"Whereas, the legislature declares that appointments made in Section 1 should be effective at the beginning of the fiscal year, an emergency is declared to exist and Section 1 of this Act shall become effective upon its passage and signature of the Governor."
Although the Governor did not sign this Bill, the Emergency Clause is nevertheless still effective because the Governor did not veto it within the ten day limit provided for in Section 88 of the Kentucky Constitution.
In George v. Scent, Ky., 346 S.W.2d 784, 789 (1961), the Court of Appeals said:
"The presumption is that the Legislature intends an Act to be effective as an entirety. No rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect shall, if possible, be accorded to every part of the Act. . . ."
It is clear from examining Section 1 of House Bill 143 that the General Assembly wanted the new Commissioners to take office on July 1, 1982. However, in order for them to take office on a date certain it would be necessary to set the appointment machinery in operation prior to July 1, 1982. It is our opinion that this is precisely what the Emergency Clause of House Bill 143 does.
The appointment process became effective on the date the Bill was approved by the Governor. However, the appointees do not take office until July 1, 1982. To rationalize otherwise would require ignoring the date clauses in Section 1 of House Bill 143 as well as the Emergency Clause itself which states that the appointments ". . . should be effective at the beginning of the fiscal year. . ." As the Court said in George, supra, every part of an Act must be accorded significance and effect.
The second issue to be resolved in order to answer your inquiries is the date on which the confirmation mentioned under KRS 12.025(1) was denied. The Governor reorganized the Racing Commission by Executive Order 80-368 and made additional appointments in Executive Order 81-425. Although the Executive Orders reorganizing state government are not statutes, they do have the effect of law unless the next session of the General Assembly denies confirmation. The Legislature should be presumed to know the effect of Executive Orders dealing with reorganization. Inland Steel Co. v. Hall, Ky., 245 S.W.2d 437 (1952).
One solution is to argue that denial of confirmation was effective at the adjournment of the General Assembly, April 20, 1982 or that it was effective on the date the Emergency Clause made the appointment provisions contained in Section 1 of House Bill 143 operable. But this rationale would result in a hiatus. The Commission of nine in the Executive Orders would revert to a Commission of five under KRS 230.220, the prior statute.
Another solution is to argue that the denial of confirmation does not become effective until the expiration date of the terms of the officers appointed by the Governor under Executive Orders 80-368 and 81-425. This expiration date is June 30, 1982. This rationale would not result in a hiatus of the operation of the Racing Commission.
It is our opinion that the laws of the Commonwealth should be interpreted so as to avoid a cessation in the operation of government. To adopt the former approach could result in chaos in the thoroughbred racing industry. To adopt the latter would be to stabilize the control of the racing industry and promote continuity of government. In City of Frankfort v. Triplett, Ky., 365 S.W.2d 328, 330 (1963) the Court of Appeals said:
"Myopic exactitude in the construction of statutes would produce many an unfortunate and unintended result. An interpretation that would produce an effect manifestly inconsistent with sound public policy is to be avoided unless it is utterly clear that the legislature actually so intended. The more unwise and unsound the result of a literal construction appears to be, the more specifically must such an intention be expressed in the statute in order for the courts to be justified in construing it literally. This is merely a corollary of the rule that the courts will not give a strict literal construction to a statute if it would lead to an absurd or unreasonable conclusion."
It is our opinion that the terms of the Commissioners appointed under Executive Orders 80-368 and 81-425 do not expire until June 30, 1982. The new appointees under Section 1 of House Bill 143 take office on July 1, 1982. Therefore we answer your first inquiry in the affirmative. The Commission set up under Executive Order 80-368 has jurisdiction to regulate the conduct of thoroughbred racing in Kentucky until July 1, 1982, the date the new Commission takes over.
In light of our answer to your first inquiry, we feel that it is unnecessary to deal with the second. However, we do submit that the Governor is authorized to appoint replacements for the expiring terms until the new Commission set up under House Bill 143 takes office on July 1, 1982. There is provision for this in Executive Order 80-368.