KBA President Barbara Dahlenburg Bonar John, Katie, Alex ...KBA President Barbara Dahlenburg Bonar with her husband, John Bonar, and her father, Charles Dahlenburg. 2008-2009 KBAPresident

KBA President Barbara Dahlenburg Bonar John, Katie, Alex and Ian

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Constitutional Law17 Reservations for 50: A Closer Look

at the Tenth Amendment’s PowersReserved to the StatesBy John J. Balenovich

23 Board and Commission Appointments: Executive Power – With LimitsBy Bill Lear & David Fleenor

28 Civil Resolution of Ecclesiastical DisputesBy Paul E. Salamanca

34 Reforming Reform – Kentucky’s CampaignFinance Laws in TransitionBy David S. Samford

This issue of the Kentucky BarAssociation’s Bench & Bar was published in the month of July.

Publications CommitteeFrances Catron-Malone, Chair, FrankfortPaul Alley, FlorenceMindy Barfield, LexingtonGregory M. Bartlett, CovingtonSandra A. Bolin, BereaMichael A. Breen, Bowling GreenChristopher S. Burnside, LouisvilleShawn E. Cantley, LouisvilleDavid C. Condon, OwensboroWilliam S. Cooper, ElizabethtownJames P. Dady, NewportBruce K. Davis, LexingtonJudith D. Fischer, LouisvilleP. Franklin Heaberlin, PrestonsburgSheryl E. Heeter, NewportJudith B. Hoge, LouisvilleEdna M. Lowery, FrankfortTheodore T. Myre, Jr., LouisvilleEileen M. O’Brien, LexingtonBrian K. Pack, GlasgowRichard M. Rawdon, Jr., GeorgetownSandra J. Reeves, CorbinE.P. Barlow Ropp, GlasgowCandace J. Smith, CovingtonE. Frederick Straub, Jr., PaducahGerald R. Toner, LouisvilleJohn A. West, CovingtonMichele M. Whittington, Frankfort

PublisherJames L. Deckard

EditorFrances Catron-Malone

Managing EditorBarbara L. Thomas

The Bench & Bar (ISSN-1521-6497) ispublished bi-monthly by the Kentucky BarAssociation, 514 West Main Street, Frankfort,KY 40601-1812. Periodicals Postage paid atFrankfort, KY and additional mailing offices.

All manuscripts for publication should besent to the Managing Editor. Permission isgranted for reproduction with credit.Publication of any article or statement is notto be deemed an endorsement of the viewsexpressed therein by the Kentucky BarAssociation.

Subscription Price: $20 per year. Memberssubscription is included in annual dues and isnot less than 50% of the lowest subscriptionprice paid by subscribers. For more informa-tion, call 502-564-3795.

POSTMASTERSend address changes to:Bench & Bar514 West Main StreetFrankfort, KY 40601-1812

Come join us October 23-25, 2008 for our Fall Getaway in beautiful FrenchLick, Indiana at the historic West Baden Springs Hotel. Register now for arelaxing fall weekend! See page 6 of this issue for registration informationor register online at www.kybar.org. — Barbara D. Bonar, KBA President

C O N T E N T S

Departments

3 President’s Page By Barbara Dahlenburg Bonar

6 Fall Getaway Registration Form

9 YLS By Scott D. Laufenberg

16 Effective Legal Writing By Adrienne Noble Nacev

38 Judicial Conduct Commission

42 Supreme Court of Kentucky Order Correcting 2008-01Amendments to Circuit and District Civil Fees & Costs

46 Shop Talk By Michael Losavio

48 Resolution Adopted by KBA Board of Governors Recognizing Kentucky Public Defenders’ Excessive Caseloads

50 CLE

52 Kentucky Bar News

59 Who, What, When & WhereCover photo and photo above

by Deogracias Lerma.

2 Bench & Bar July 2008

Chief Justice Joseph E. LambertAdministering the Oath

to the 2008-2009 Kentucky Bar Association

Board of Governors.

Kentucky Bar

Association Annual

Convention2008

KBA President Barbara Dahlenburg Bonargiving inaugural address.

Left to right: 7th Supreme Court District BarGovernor Bobby Rowe, 3rd Supreme Court DistrictBar Governor Daniel J. Venters, 2nd Supreme Court

District Bar Governor James D. Harris, Jr.,1st Supreme Court District Bar Governor Jonathan

Freed, Young Lawyers’ Section Chair Scott D.Laufenberg, Vice President Bruce K. Davis,

President-Elect Charles E. English, Jr., 4th Supreme Court District Bar Governor Douglas

C. Ballantine, 5th Supreme Court District BarGovernor Anita M. Britton, 6th Supreme Court

District Bar Governor David V. Kramer andPresident Barbara Dahlenburg Bonar.

KBA President Barbara Dahlenburg Bonar with her husband, John Bonar, and her father, Charles Dahlenburg.

2008-2009 KBA President Barbara Dahlenburg Bonar accepting gavel from 2007-2008 KBA President Jane Winkler Dyche.

July 2008 Bench & Bar 3

PRESIDENT’S PAGE

Character is like a tree and reputation like its shadow. The shadow is what we think of it; the tree is thereal thing. — Abraham Lincoln, 16th U.S. president (1809-1865) celebrating 200 years in February, 2009.

You won’t glean it from the newsthese days, but one of the mostpressing issues on the collective mindsof attorneys is the apparently decliningreputation of our profession, and theresults from our recent Kentucky Barmember survey seem to confirm it. So,if we care so deeply about our image,why is it we can’t come up with a suremethod to improve it?

Each of us chose this professionbecause we think it is an honorable one,right? We exit law school proud to beattorneys and generally keep that beliefthroughout our careers. More impor-tantly, although the professional roadwe travel is often harsh and fraught withpitfalls, most of us remain true to ouroath, devoted to our clients and, aboveall, honorable in our professionalism.

So why is our image so tainted? Is itbecause people just generally dreadencounters with the legal system andresent our making money off of theirmisfortunes? Maybe we should blameword-smithing lawyer politicians, thecomplexity of our times, or the sensa-tionalism of a few bad lawyers andmodern-day media? Well, yes weshould. That still doesn’t get us anycloser to solving our image problem,though.

Besides, the persecution of our profes-sion is as old as the ages. Shakespeare’s“First thing…. let’s kill all the lawyers”has been a favorite expression of attor-ney hate-mongers – for a long while, onewould assume. (And there’s now a blog

dedicated to this very proposal, if youcan believe it.) How unfair, we say.Especially given that the real intent ofthe tyrant from Henry VIII was to elimi-nate the guardians of the law so as tocreate chaos and run amok. But doesn’tthat tell us something right there? Evenwhere old Will had scripted our profes-sion the grandest of compliments, ourcritics managed to turn it against us forposterity.

So let’s first accept that our reputationis a two-edged sword. Being warriors forthe rule of law and noncomplacent totyranny is what elevates our profession.Yet our valiant and often misunderstoodwarfare is what also brings our imageright back down.

History certainly supports such a pub-lic relations conundrum. Take theAmerican Revolutionists. Thomas Paineknew all too well that fighting Britishtyranny would undoubtedly “raise aformidable outcry of disbelief” amongcolonists. His solution? Publish CommonSense anonymously and urge protectorsof law to lead the charge. “If theimpulses of conscience were clear, uni-form, and irresistibly obeyed,” he pled,“man would need no other lawgiver.” Wetook the bait, and promptly laid thegroundwork for our country’s birth.

Attorneys have been expected toshow the same courage and tenacity inmost of America’s greatest reforms. Inthe abolition of slavery, the civil rightsmovement, and, most recently, reformsin our financial, business and govern-

ment genres, we have been urged totake the lead, and we wittingly havecomplied. And history shows that wehave consistently taken on these battlesin spite of the known social setbacks.We inherited the wind, remember?

So, can we as a profession pursuejustice without fear of social condemna-tion, and then ask to be sociallycoddled? Sometimes. But it doesn’talways work out that way. Courageseems to defy popularity. ThomasMore’s unwavering passion for the ruleof law was exactly what got himbeheaded. And let’s not forget Abraham,Martin, John, Bobby and a few others.Famous for their respective agendas ofsocial justice, they were also publiclycondemned by their enemies, and, ohyes, ultimately assassinated to take theirseats of honor. Even fictional AtticusFinch, the exemplar for a reputableattorney, lived with constant public dis-paragement, merely for standing up forjustice.

Taking on unpopular battles in thename of justice will just not always winus friends. And as long as greed andcorruption continue in our world, somust our role to fight them, even whenpopularity wanes. As the warfarebecomes more complicated, the enemiessmarter, and attacks on us and societymore fervent, we just have to be satis-fied that our victories are no lessconsequential to social reform than inhistory. The public may misunderstandus, but our saving grace is the mighti-

Casting shadows in the new MillenniumCasting shadows in the new Millennium

Barbara Dahlenburg Bonar

ness of our profession’s legacy. Is it possible then, to still improve

our image? According to Abe, it is. We start back at the basics by buildingindividual character, one lawyer at atime. If we establish the core values ofour profession, and ensure our younglawyers are brought forward in thatcharacter mold, the shadow of our repu-tation will begin to solidify and grow.

The humanist Johann Goethe wrotethe perfect formula for establishing

character in our lawyers and, ultimately,our bar. “The easiest way to judge one’scharacter,” he noted, “is by how hetreats those who can do nothing forhim.” On that simple premise, we knowthere is character aplenty amongKentucky lawyers and judges. It is thereamong the thousands of strong-mindedlawyers quietly serving their clients, andthe hundreds of judges resolute in mak-ing sound decisions – every day – andwithout expectation of fame, fortune, or,

yes, even popularity. This year, in the name of Lincoln,

let’s honor and emulate our goodlawyers and judges, and educate otherdisciplines as to the rule of law we fol-low. This will plant more seeds ofcharacter in our young lawyers andinsure our profession’s healthy future.One by one, but together, we will cast along and beautiful shadow.

I welcome your comments [email protected].


2008 Award RecognitionsBruce K. Davis BarService AwardAsa “Pete” Gullett (below) accepted theBruce K. Davis Bar Service Award fromKBA President Jane Winkler Dyche.

President’s SpecialService AwardKBA President Jane Winkler Dychepresented the President’s Special ServiceAward to Norman E. Harned (above).

Donated LegalServices AwardFrank C. Medaris, Jr. (above) acceptedthe Donated Legal Services Award from KBA President Jane Winkler Dyche.

Left to right: Herbert D. Sledd, Ben L. Kessinger, Jr., Charles E. English, Sr., David L. Yewell, John G. Prather, Jr., Marcia Milby Ridings, Stephen D. Wolnitzek, Donald L. Stepner, Norman E. Harned,Robert L. Elliott and Robert C. Ewald.

PastPresidents

of theKentucky

BarAssociation


Outstanding JudgeKBA President Jane Winkler Dyche presented the OutstandingJudge Award in memory of and to the family of Justice William E. McAnulty, Jr. of Louisville.

Outstanding LawyerMargaret E. Keane, of Louisville, accepted the OutstandingLawyer Award from KBA President Jane Winkler Dyche.

Chief Justice’s Special Service AwardErwin W. Lewis, of Frankfort, accepted the Chief Justice’sSpecial Service Award from Chief Justice Joseph E. Lambert.

Justice Thomas B. Spain AwardCLE Chair Olu A. Stevens presented the Justice Thomas B.Spain Award to Professor William H. Fortune of Lexington.

KENTUCKY BAR ASSOCIATION2008 FALL GETAWAY

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October 23-25, 2008 for our Fall Getaway inbeautiful French Lick, Indiana at the historic West Baden Springs Hotel. This magnificentstructure boasts luxury suites, fine dining, andexciting casino nightlife! Join your friends and

colleagues for Continuing Legal Education coursesthat will be offered on site Friday and Saturdaymornings. Register now and bring your entirefamily for what promises to be a relaxing and

beautiful fall weekend at this Midwestern landmark. We look forward to seeing you at

West Baden Springs in October!

Barbara D. Bonar, KBA President

Come join us


LaToi D. Mayo, the 2008 Outstanding Young Lawyer.Ryan Reed, Jackie Wright, LaToi Mayo & Mark Burton.

Law school students Katherine Holm and Travis Mayoaccepted awards from Ryan Reed.

2008-2009 YLS Chair Scott D. Laufenberg (right) presentedplaque to 2007-2008 YLS Chair Ryan C. Reed (left).

2008 Outstanding Young Lawyer Award

Sean Carter, author and self-described humorist at law, was theguest speaker at the Young Lawyers’ Section Luncheon.

Ryan C. Reed (left), 2007-2008 YLS Chair, congratulated Scott D. Laufenberg (right), 2008-2009 YLS Chair.


There is an ongoing debate acrossthis country whether young lawyersections should call themselves “newlawyer” or “young lawyer.” While itmay make for an interesting debate forbar leaders, the question for the aver-age young lawyer is: what will you dofor me?

If you attended the 2008 KBA AnnualConvention, you saw examples of howthe Young Lawyers Section serves itsmembers. At the suggestion of the Sec-tion, the KBA agreed to conduct thespring New Lawyers Program in con-junction with the annual convention. Asin the past, new admittees attended oneday of programming specific to them.The major change, however, was theirability to attend the Young LawyersConference on Thursday, June 19, withother convention attendees. The YoungLawyers Conference consisted of pro-gramming designed by the Section to berelevant to lawyers just beginning theirpractice and for more advanced practi-tioners. On behalf of the Section, I wantto express my appreciation to the KBACLE office for making this idea a reality.

During the convention, KBA Presi-dent Barbara Bonar and I announced ajoint project between the KBA and thisSection called Brief Insights. This pro-gram is modeled after a highlysuccessful program created by the TexasYoung Lawyer Association. The prem-

ise of the program is simple: ten-minutevideo clips on topics ranging fromethics and trial advocacy skills to lawpractice management are available onthe web for free twenty-four hours aday. Besides the clips shown at the con-vention, the KBA and the Section willbe recruiting additional presenters andplacing those clips on a website locatedat www.briefinsights.com.

But there is more to the Section thanjust serving its members; it serves ourcommunities too. In response to theevents of September 11, 2001, a SouthCarolina young lawyer was inspired tomake a difference by addressing a starkreality – many of the first responders whodied that day did not have a will. Sincethat time, he and another young lawyerhave created the Wills for Heroes Foun-dation, Inc. (www.willsforheroes.org), andthey partnered with the American BarAssociation Young Lawyers Division topromote a program called Wills forHeroes across the country. Through thisprogram, first responders receive a basicwill, a living will, and durable power ofattorney. During the 2008-09 bar year, theKBA Young Lawyers Section will beimplementing Wills for Heroes inSeptember.

Besides Wills for Heroes, the KBAYoung Lawyers Section will be imple-menting its U@18 program across theCommonwealth. The program is

designed to teach high school seniorsabout responsibilities of becomingadults. The program materials include abook and sample lesson plans for highschool teachers.

At the Section luncheon at the 2008KBA Annual Convention, the Sectionpresented its annual Outstanding YoungLawyers Award to LaToi D. Mayo, whopractices with Wyatt, Tarrant & Combs,LLP in Lexington. The Section also pre-sented $500 bar study scholarships torecent law school graduates J. ClarkBaird of the University of KentuckyCollege of Law, Katherine M. DittmeierHolm of the University of LouisvilleBrandeis School of Law, and StevenTravis Mayo of the Salmon P. Chase Col-lege of Law. Congratulations to LaToiand the three bar scholarship recipients.

In recent months, the Section hasunveiled its new slogan and logo on itswebsite, www.kbayls.com. If you have notvisited the website in a while, I encourageyou to check it out. It is a work inprogress, but in upcoming months theSection will be adding additional contentto its website, and I encourage you tocontact me with any ideas.

As part of the restructuring of theSection, there are nine committees onwhich members may serve. If you areinterested in volunteering and making adifference in the profession and in yourcommunities, please review the commit-tee list on the Section’s website athttp://www.kybar.org/documents/inside_kba/sections/yls/yls_committee_list.pdfand contact me at [email protected] or (270) 782-8160. Whetheryou consider yourself a young or newlawyer, I hope you find the KBA YoungLawyers Section a home to you in yourbeginning years of practice. n

By Scott D. LaufenbergChair, KBA Young Lawyers Section

For additional information about the KBA Young Lawyers Section, visit http://www.kbayls.com or contact Scott Laufenberg at

[email protected] or (270) 782-8160.

2008-09 YLS EXECUTIVE COMMITTEEChair: Scott D. Laufenberg, Bowling Green

Chair-Elect: Jennifer L. Howard, Lexington Vice-Chair: J. Nathan Billings, Lexington

Secretary/Treasurer: Clint Quarles, FrankfortImmediate Past Chair: Ryan C. Reed, Bowling Green (ex-officio)

First: Michael O. Walker, Paducah Second: Jennifer L. Brinkley, Bowling Green Third: Tighe A. Estes, London

Fourth: Patrick Shane O’Bryan, Louisville Fifth: Justin M. Schaefer, LexingtonSixth: Jacqueline S. Wright, Maysville

Seventh: Randall L. Saunders, Huntington, WV

District Representatives

Roula Allouch, Covington Lauren R. Brooke, Lexington

Robert M. Croft, Jr., LexingtonSara R. Elrod, Cincinnati

Walter Hawkins, Bowling GreenRobert L. Raper, Covington

Rebekkah Bravo Rechter, LouisvilleStephanie Renner, Lexington

Jesse Robbins, FrankfortDavid A. Trevey, Lexington

Christina L. Vessels, LexingtonTimothy A. West, Lexington

At-Large Representatives

Bowling Green-Warren County: Matthew M. McGill, Bowling GreenFayette County: Adrien Spencer McKiness, Lexington

Louisville: Erica A. Lee, LouisvilleNorthern Kentucky: Stacy Hege Tapke, Covington

Local Bar Association Representatives

Terms Expire on theKBA Board of Governors

On June 30 of each year, the termsexpire of seven of the fourteen BarGovernors on the KBA Board ofGovernors. SCR 3.080 providesthat notice of the expiration of theterms of the Bar Governors shall becarried in the Bench & Bar. SCR3.080 also provides that a Boardmember may serve three consecu-tive two-year terms. Requirementsfor being nominated to run for theBoard of Governors are containedin Section 4 of the KBA By-Laws.The requirements include filing awritten petition signed by not lessthan twenty (20) KBA members ingood standing who are residents ofthe candidate’s Supreme Court Dis-trict. Board policy provides that:“No member of the Board of Gov-ernors or Inquiry Commission, northeir respective firms, shall repre-sent an attorney in a disciplinarymatter.” Any such petition must bereceived by the KBA ExecutiveDirector at the Kentucky Bar Cen-ter in Frankfort prior to close ofbusiness on the last business day inOctober. The current terms of thefollowing Board members willexpire on June 30, 2009:

1st W. Douglas Myers Hopkinsville

2nd R. Michael Sullivan Owensboro

3rd Richard W. HaySomerset

4th Douglass C.E. FarnsleyLouisville

5th Fred E. Fugazzi, Jr.Lexington

6th Thomas L. RouseFt. Wright

7th William H. WilhoitGrayson


University of Kentucky College of Law: TBA (ex-officio)University of Louisville School of Law: TBA (ex-officio)NKU Salmon P. Chase College of Law: TBA (ex-officio)

SBA Representatives


Gailen W. Bridges, Jr., the 2008KBA Law Day Chair, recognizedoutstanding Law Day programsfrom bar associations across Kentucky atthe Membership Awards Luncheon thatwas held during the 2008 KBA AnnualConvention in Lexington. Mr. Bridgespresented awards to the winners of thisyear’s KBA Law Day Competitionwhich was centered on “The Rule ofLaw: Foundation for Communities ofOpportunity and Equity.”

ä The Northern Kentucky Bar Associ-ation and the Bowling Green-WarrenCounty Bar Association were co-recipients of the Large Bar Award.Cathy Stavros, Northern Kentucky BarAssociation President, and Matt Cook,Bowling Green-Warren County BarAssociation Treasurer, accepted theawards. In Northern Kentucky, nineteenjudges and attorneys spoke to studentsin ten area schools about the 50th

anniversary of Law Day, the law in gen-eral, and the Law Day theme, “The Ruleof Law: Foundation for Communities ofOpportunity and Equity.” In BowlingGreen, over 150 judges, attorneys,teachers, children and parents attendedthe 2008 Law Day Ceremony andreflected upon the meaning of the ruleof law, its role in society, and how it isessential in sustaining a free society.Kentucky Supreme Court Justice

Lisabeth Hughes Abramsonwas the guest speaker for theLaw Day Ceremony.

ä The Medium Bar Awardwas presented to the MadisonCounty Bar Association. NoraShepherd, past president ofthe Madison County BarAssociation, accepted theaward. Law Day activitiesconducted in Madison Countyincluded a Kentucky BarFoundation Speaker Project, aLaw Day Motion Hour Cere-mony, a Law Day Banquet,and an annual Law Day EssayContest. Kentucky SupremeCourt Justice Mary C. Noblewas the guest speaker at theLaw Day Banquet and Family

Court Judge Jean Chenault Logue pre-sented a pro bono award to MelindaMurphy. Circuit Judge Julia HyltonAdams also presented savings bond cer-tificates to the essay contest winners atthe Law Day Motion Hour.

ä Judge Earl-Ray Neal and ClarkCounty Bar Association PresidentWilliam Elkins accepted the Small BarAward for the Clark County Bar Associ-ation. A series of events were held inClark County to commemorate Law Day2008. Circuit Judge William T. Jenningsapproved a proclamation commemorat-ing the 50th anniversary of Law Dayand focusing on this year’s theme, “TheRule of Law: Foundation for Communi-ties of Opportunity and Equity.” Localattorneys spoke to ele-mentary schoolstudents about the ruleof law. Clark Countymiddle school studentsparticipated in an artcontest and highschool students had theopportunity to partici-pate in an essaycontest and a mocktrial. Members of thebench and the bar alsoheld a local law forumfor the community. n

Law Day Awards

Judge Earl-Ray Neal and William Elkins accepted the Small Bar Award for the Clark County Bar Association from Gailen W. Bridges, Jr.

Matthew Cook accepted the Large Bar Awardfor the Bowling Green-Warren County BarAssociation from Gailen W. Bridges, Jr.

Catherine Stavros accepted the Large BarAward for the Northern Kentucky BarAssociation from Gailen W. Bridges, Jr.

Nora Shepherd accepted the Medium BarAward for the Madison County BarAssociation from KBA Law Day ChairGailen W. Bridges, Jr.

2008 Rules Hearing ConsidersEthics Rules Changes

On June 18, 2008, the KentuckySupreme Court held a three-hour longRules Hearing on significant changes tothe Kentucky Rules of ProfessionalConduct (KRPC), stemming from thework of the “Ethics 2000” Committee.The Rules Hearing was chaired by now-Chief Justice John Minton, Jr.

The changes to the KRPC were origi-nally presented at the Rules hearing atthe 2007 Annual Convention inLouisville in 2007. However, it wasrealized that more time was needed forstudy of the proposals. Chief JusticeMinton noted that the Court “made aneffort to put this out before the membersof the Bar for discussion.” The changeswere presented to the membership at alllocations of the Kentucky Law Updatein 2007 by Professor William Fortune.

The Court is taking comments on thechanges through the end of July 2008.All comments should be in writing andaddressed to Susan Clary, Clerk of theSupreme Court.

Noted Author and Commentator Jeffrey Toobin Addresses Convention

Jeffrey Toobin, author and legalaffairs commentator on CNN, addressedthe 2008 Annual Convention on June19, 2008. Discussing his recent book,

The Nine, Mr. Toobin said that the U.S.Supreme Court is “at an importantmoment in its history.” He reviewed theCourt’s work over the last forty years,and remarked on retired Justice SandraDay O’Connor’s impact on the Courtduring her tenure. Toobin called JusticeO’Connor “a toweringly important fig-ure in American history.” Toobin alsonoted that for the first time in theCourt’s history, all nine justices are for-mer federal appellate court judges. Hesaid that the Court has “greatly missed”a “non-judge” justice, such as a gover-nor, senator, or president.

William Korman presents the Emailthat Roared: Ethics in an Age ofElectronic Communication

At this year’s KBA Annual Conven-tion, William Korman presented TheEmail that Roared: Ethics in an Age ofElectronic Communication, providingattendees with a very informativeoverview of ethical dilemmas surround-ing the use of electronic technology.

Mr. Korman practices in the area ofstate and federal criminal defense, andis the founding partner of Korman &Associates, LLC, located in Boston,MA. He received his B.S. from Syra-cuse University in 1992, and his J.Dfrom Boston University School of Lawin 1995. Mr. Korman is a member ofnumerous organizations including theNational Association of CriminalDefense Lawyers, and the New Hamp-

shire, Massachusetts, and Boston BarAssociations. In addition, he hasreceived a number of awards through-out his career, including having beennamed Lawyers’ Weekly “Up andComing Attorney” in 2001, and Massa-chusetts’ “Rising Star” in 2005, 2006,and 2007.

Mr. Korman’s presentation, TheEmailed that Roared, focused on theincreased and widespread use of elec-tronic communication in the day-to-daypractice of attorneys. Such pervasiveuse of email can result in a breach ofethical responsibilities by an attorneythrough disclosure of confidential infor-mation. While such email responsibilitywill vary from jurisdiction to jurisdic-tion in regards to electroniccommunication, Mr. Korman identifiedseveral issues to be cautious of, includ-ing sending electronic communicationsto unintended recipients, and the com-munication of invisible data. He alsodiscussed several precautions that canbe taken and tools that can be used toensure the confidentiality of your clientand their case. Such precautions andtools include manually addressingemails as opposed to using pre-programmed addressing and groupaddresses; removing metadata, or invisi-ble data from documents; minimizingthe use of electronic communication forconfidential matters; and keeping atighter control on the informationreceived by third party contractors andconsultants. n

Newly-elected Chief Justice John Minton chaired part of the Rules Hearing at the Annual Convention.

Jeffrey Toobin addressed the KBA Convention.

2008 Convention CLE


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Legal writing is founded on the inter-nal voice of reason that is inherent inhumans. That voice is honed throughexperience and schooling, starting longbefore a student enters a law school’sportals to begin a life in the law andcontinuing through all stages in the lifeof a lawyer. This article posits aCollection of Epigrams that providesguidance to that internal voice.

Early in the process of becoming alawyer, the student is introduced toenduring analytical and organizationalconstructs that inform understanding ofthe law and how to write about it.Students learn about the basic organiza-tional principle of IRAC or Issue, Rule,Application and Conclusion. That is agood beginning, but it is only a begin-ning. IRAC structure does not provideguidance on how to identify the issue,or derive the rule, or apply the rule tosupport the conclusion reached. Nordoes it recognize the need to addresscounter arguments in order to logicallyjustify the conclusion.

CRAC is the amusingly pronouncedpersuasive form of IRAC: Conclusion,Rule, Application and Conclusion. It toois only a beginning because it does notencompass the analytical foundationsthat support its conclusions.

CREAC is an improved, though stillimperfect, acronym: Conclusion, Rule,Explanation, Application, andConclusion. It incorporates the need toexplain the rule so it can be applied tosupport the conclusion. However, thelogical requirements for that explanationand persuasive conclusion are still notthere.

The Collection of Epigrams belowaddresses some of the steps in the

process of formulating and writingabout rule explanations and applicationsthat may not be apparent in the standardacronyms. These are mnemonic devicesto scroll through the mind in the processof deriving and expressing the solutionsto legal problems. Some are familiar,some are traditional expressions thatmay appear in a new context, and per-haps some are new.

1. Tell the readers what you aregoing to tell them, tell them and thentell them what you told them — This isthe basic outline of a piece of legal writ-ing. It is basically the roadmap andissue, the rule explanation and applica-tion and the conclusion. It is analogousto the sonata form in music: exposition,development and recapitulation.

2. Saying something is so, does notmake it so — This is a reminder of theneed to support statements with bothlogic and authority.

3. Don’t be conclusory — This is anadmonition to make sure that the writerhas laid the foundation for the conclu-sions reached (and it is a word that spellcheck rejects even though it doesexpress the point well.)

4. Substantiate your assertions —This is a variation on the theme that thejust application of law is based on anal-ysis of authority, including itsunderlying logic.

5. To everything there is a purpose1

— That is, be sure to include all thenecessary logical and analytical compo-nents in your memo or brief.

6. Don’t proposition/cite —Conclusory legal propositions, followedby cites, do not work because the expla-nations and applications are missing.The same goes for string cites.

7. Analyze, don’t personalize —That is, do not say, “I believe,” ratheranalyze the law and the facts so that thelogic speaks for itself.

8. Do not tell your readers whatthey “must” decide — Rather, appeal tothe readers’ sense of logic and justice.

9. Remember to edit — That is,read, reread, put aside and reread.

10. Brevity is the soul of wit2 — Sayall you need to say as completely as pos-sible, as briefly as possible — No onewants to read more than they need to.

11. And room to grow…. — ThisCollection of Epigrams is not finite, andmore epigrams will reveal themselves inthe process of thinking about legal rea-soning and legal writing. n

ENDNOTES1. See Ecclesiastes 3:1 (King James

Version).2. William Shakespeare, Hamlet, Act

2, scene 2, 90.

Adrienne Noble Nacev, Visiting Assistant Professor of Legal Writing, NKU Chase College of Law

A Collection of Epigrams — Some Mantras for Legal Writing

EFFECTIVE LEGAL WRITING

Register online now for the

KBA Fall Getaway at www.kybar.org!


By John J. Balenovich

T his article addresses the Court’sapplication of the Tenth Amend-ment as a constitutional restrainton Congressional power. The TenthAmendment, based on the principle thatthe Constitution’s authority rests on theconsent of the people, not individuallyas an entire nation, but as to the “indi-vidual states…they respectivelybelong,”1 reads:

THE POWERS NOT DELE-GATED TO THE UNITEDSTATES BY THE CONSTITU-TION, NOR PROHIBITED BYIT TO THE STATES, ARERESERVED TO THE STATESRESPECTIVELY, OR TO THEPEOPLE.2

The Tenth Amendment operates as anexception – a limit on the general rulethat the federal government may enactlaws necessary and proper to effectuateone of the federal government’s enu-merated powers. The Tenth Amendmentpreserves the rule of limited federalgovernment by reserving powers to thestates. This reservation has been con-strued by the Court to delineate whatthe national government may notdemand of the states because the actionintrudes upon state sovereignty.

The Court’s treatment of this expresslimitation on the national governmenthas been anything but consistent, lead-ing to confusion surrounding the scopeand extent of the Tenth Amendment’sconstraint on Congress. But confusionshould not be taken to mean insignifi-cance. The final amendment in the Billof Rights maintains its importance andviability in our modern system of gov-ernment. Today, the Tenth Amendmentretains its stature as a viable constitu-tional restraint on Congressional power.

The Tenth Amendment, while a part

of the “living” Constitution, has wit-nessed its own evolution in response tothe changing needs of the country. Anexplanation of the Tenth Amendment inthe proper historical context sheds valu-able light on its meaning andimportance in the constitutional scheme.The Tenth Amendment is the guardianof the federal structure in the Constitu-tion.3 American federalism is thevertical division of power between thefederal government and the states basedon the principle of duel sovereignty.

A Sword or a Shield?The major impetus for the Framers

including the amendment stemmed fromconcerns raised during the Constitu-tional Convention about theappropriation of power between the twoconcurrent sovereigns – the national andstate governments.4 Intending to strike aproper balance and fearful the nationalgovernment would abuse its powerunder the Supremacy clause5, theFramers inserted paper protections intothe structure of the Constitution itself toprevent Congressional legislativeencroachment into the realms of purelystate control.6

Not convinced a mandate to refrainfrom legislating in excess of its consti-tutional power was strong enough toguard against the threat of Congres-sional tyranny; the Tenth Amendmentwas passed to prevent national govern-ment intrusion on state sovereignty. But,as we will see, the Supreme Court hasnot always embraced the Tenth Amend-ment as viable constitutional restraint.

A Lion or a Lamb?The United States is wholly “a crea-

ture of the Constitution.”7 The mostbasic constitutional limitation on Con-gress is restricting it to its enumeratedpowers in Article I.8 Because Congresscan legislate only by exercising one ofits enumerated powers, a law passed

that is not expressly or impliedlyderived from an enumerated power is,by definition, unconstitutional.9 Further,the fact that the Constitution is a docu-ment of “limited and enumeratedpowers,” logically necessitates “thatwhat is not conferred [to Congress], iswithheld, and belongs to the stateauthorities.”10

Historically, the Court’s key focus onthe issue has been whether the TenthAmendment is a “judicially enforceablelimit” on Congressional power.11 Inother words, can the Court declare afederal law unconstitutional because thelaw violates the Tenth Amendment?12

The Court has employed twoapproaches to address the meaning andscope of the Tenth Amendment. Oneapproach, the reminder approach, viewsthe Tenth Amendment as a reminderthat Congress may only legislate if ithas the constitutional authority to doso.13 Under this approach, the TenthAmendment is not a separate restrainton Congressional power; therefore afederal law could not violate the Consti-tution on Tenth Amendment grounds.14

The second approach applies theTenth Amendment as a constitutionalprotection of state sovereignty.15 Underthis approach, the Supreme Court hasused the Tenth Amendment as a “keyprotection of states’ rights and federal-ism.”16 The Tenth Amendment, being aviable restraint on Congressional power,confirms the “Federal Government issubject to limits that…reserve power tothe States.”17 Thus, the Tenth Amend-ment forces the Court to determinewhether Congressional action was per-missible or did the Federal action offendstate sovereignty protected by the TenthAmendment.18

The second approach is more in linewith the intent of the Framers.19 AsAlexander Hamilton explained in TheFederalist No. 33, Congressional actionis allowed if executed properly under

Reservations for 50:A Closer Look at the Tenth Amendment’s Powers

Reserved to the States


Article I. However, when a federal lawviolates state sovereignty, then that lawis “merely [an] ac[t] of usurpation”which “deserve[s] to be treated assuch.”20

Early Treatment of the Tenth Amendment

Tenth Amendment jurisprudence hasgone through four phases since it adop-tion into the Constitution in 1789.During the Nineteenth Century, basedon Chief Justice John Marshall’s opin-ions in McCulloch v. Maryland 21 andGibbons v. Ogden,22 the Court treatedthe Tenth Amendment as a reminder toCongress that it must have constitu-tional authority to legislate, not arestraint on Congressional power.23

These cases involved testing the limitsof one of Congress’s enumerated pow-ers under the Supremacy Clause and theCommerce Clause, respectively.

In both cases, Marshall, a staunchnationalist, expanded national powerand limited state sovereignty.24 This wasno surprise; Marshall consistently “con-strued” the Constitution as authorizingthe broad Congressional powers hebelieved were necessary to ensure thenational government was effective whenexecuting national initiatives.25

Marshall’s approach was abandonedin 1918, when the Court handed downits opinion in Hammer v. Dagenhart(The Child Labor Case).26 Broughtbefore the Court during the Lochner era,the decision in Hammer fundamentallychanged Tenth Amendment jurispru-dence by explicitly recognizing “zonesof state control.”27 The Court reasonedthat Congress was prohibited by theTenth Amendment from legislatingactivities in those zones.28 The HammerCourt ruled Congressional authorityover a federal matter could not destroythe innate power always reserved by thestates over the same issue.29 The Courtused the Tenth Amendment as a formi-dable limit on federal power until theearly 1930s.30

By the end of the decade, the Courthad an influx of progressive Justiceswho were less concerned with adheringto the text of the Constitution thanreaching what they believed was theright result. Again, a perceived strong

need for big national government toaddress big national problems led to aserious shift in the Court’s approach onmany constitutional issues. In 1937, inWest Coast Hotel Co. v. Parrish,31 theCourt upheld the federal minimum wagelaw and effectively ended the Lochnerera. The Court reverted back to viewingthe Tenth Amendment as merely areminder of Congressional limits. Thisswing in the pendulum was confirmedin 1941 in United States v. Darby,33

where the Court squarely addressed theissue of whether the Tenth Amend-ment34 was an actual restraint onCongressional authority. The Court heldit was not.

Between 1937 and 1992, TenthAmendment issues were raised in sev-eral cases before the Court; however theCourt only struck down one federal lawas violative of the Tenth Amendment. In1976, Justice William Rehnquist’s opin-ion for the Court in National League ofCities v. Usery, briefly revived the TenthAmendment as a viable constitutionalrestraint when he articulated the govern-ment functions test that prohibitedCongress from regulating “traditional …functions” of state governments.35 Theproblem for the Court was determiningwhich state functions deserved Constitu-tional protection.

Over the next ten years the Courtconsistently rejected Tenth Amendment-based claims similar to those raised inNational League of Cities. In 1985, theCourt expressly overruled the govern-ment functions test in Garcia v. SanAntonio Metropolitan TransitAuthority.36 The Garcia Court explainedthe government functions test was notsound, unworkable in practice, and leadto inconsistent results.37 The Court ulti-mately concluded that protection ofstate sovereignty is best left to the polit-ical process, and in so doing, the Court“washed its hands” of the Tenth Amend-ment leaving it for dead.38

Modern Tenth AmendmentJurisprudence

In the 1990s, the Court resur-rected the Tenth Amendment by using itto limit Congress’s authority to requirestate governments to effectuate federalregulatory laws by prohibiting Congress

from commandeering state legislaturesand state officials.39 The SupremeCourt’s reversal of opinion can largelybe attributed to Chief Justice Rehnquist.The Rehnquist Court, citing “first prin-ciples,”40 took the country on a“federalism revival” that expressly over-ruled Garcia and revitalized the TenthAmendment.41

The three cases that establish currentTenth Amendment jurisprudence areNew York v. United States, Printz v.United States, and Reno v. Condon. InNew York, the State challenged the fed-eral 1985 Low Level Radioactive WastePolicy Amendments Act. The Court’sanalysis focused on the Act’s incentives,specifically the “take title” provision,that obligated states to accept ownershipof any undisposed of waste within theirborders and held states liable for anydirect or indirect damages caused by thewaste as a consequence of ownership.42

The Court found the Act’s “take title”provision unconstitutional because itforced state governments to make aHobbsian choice; either accept owner-ship of the waste or regulate “accordingto the instructions of Congress.” 43

The Court was unequivocal: Con-gress is prohibited from commandeeringstate legislatures, or the state legislativeprocess, by compelling states to enactand enforce federal laws.44 The Courtlaid down a bright-line rule: it willnever sanction an explicit federal com-mand to states to affirmatively act.45

Simply put, the Court concluded thatCongress is not empowered to comman-deer state legislatures by requiring stategovernments to “promulgate and enforce[federal] laws and regulations” and theTenth Amendment expressly forbidssuch action.46 This misuse of Congres-sional power, the Court reasoned, woulddestroy the federal system and under-mine government accountability becauseCongress would make the political deci-sions, but the states would take the“political heat” and be held responsiblefor a decision they did not make.47

In Printz v. United States, the Courtextended the anti-commandeering prin-ciple to encompass federal lawsrequiring action by state executive offi-cers. The case involved a TenthAmendment challenge to the Brady


Handgun Violence Prevention Act.Specifically, the Court found the BradyAct’s requirement that each state’s chieflaw enforcement officer establish anational background check system vio-lated the Tenth Amendment because it“pressed into federal service” stateexecutive officers for federal regulatorypurposes.48 The Court ruled the FederalGovernment could not issue directives(1) requiring state officials to address aparticular problem, nor (2) commandState officials or political subdivisionsto administer federal programs.49 TheCourt restated that it would not allowCongressional attempts to circumventthe Tenth Amendment by “conscripting”state officers instead of passing lawsdirecting state governments.50

Shortly after the decision in Printz,the Court reigned in the scope of theTenth Amendment in Reno v. Condon.The case involved a challenge by thestate of South Carolina to a provision ofthe Drivers Privacy Protection Act of1994 (DPPA) that restricted the disclo-sure and sale of personal informationkept in DMV records.51 The state’s lawwas in direct conflict with the federallaw because it allowed any person toaccess DMV records by filling out aformal request, so long as they sworethe information would not be used fortelephone solicitation.52 The stateargued the DPPA was unconstitutionalbecause it “thrust[ed]” upon the stategovernment the day-to-day responsibil-ity of administering a complex federalprogram.53

The Court ruled the DPPA provisiondid not violate the Tenth Amendmentbecause it did not require affirmativeaction by the state and instead prohib-ited state conduct, which is apermissible use of Congressionalpower.54 In other words, Congress pro-hibiting state conduct does not violatethe Tenth Amendment because Congressdoes not force a state to pass laws, regu-late their own citizens, or require stateofficials to assist in the enforcement offederal regulatory programs.55

In summary, it is clear the Court willstrike down a federal law that comman-deers state legislatures or state executiveofficials for federal regulatory purposes.The Court has held that federal laws

which compel states or state executiveofficers to affirmatively act are uncon-stitutional as violative of the TenthAmendment. However, Congress maypass laws that prohibit state conduct solong as the law does not influence themanner in which states regulate theirown citizens.

Future of the Tenth AmendmentReverberations of the Rehnquist

Court’s “federalism revival” will con-tinue to echo as these decisions havespawned hundreds of lower court deci-sions delineating issues of federalism.56

With Chief Justice Rehnquist and Jus-tice O’Connor no longer on the bench,how the Tenth Amendment will beshaped by the Roberts Court remains tobe seen. To date, the Roberts Court hasnot directly addressed the scope of theTenth Amendment or any of the funda-mental “constitutional federalism issuesthat formed the heart of the RehnquistCourt’s Federalism Revolution.”57 Butit has dealt with cases that raised feder-alism issues.

Two recent cases, Waters v. WachoviaBank, N.A. and United Haulers Associa-tion, Inc. v. Oneida-Herkimer SolidWaste Management Authority, indirectlyshed light on both Chief JusticesRoberts’s and Justice Alito’s stance onfederalism. In Waters, the Court faced apreemption issue involving the National

Banking Act.58 Alito joined the majorityrecognizing a zone of federal activitythat is free from undue interference bystate regulations.59 Further, the majorityheld the Court may properly overturnstate laws that unduly hamper federallypreempted national bankingregulations.60 The dissent, in whichRoberts joined, expressed concern abouthow the majority’s decision impacts thefederal-state balance of power.61 Thedissent pointed to the Tenth Amend-ment, and explained that it serves toremind the Court that its decisionsimpact sovereigns.62 The dissent con-cluded the dual sovereignty enjoyed bythe states and federal governments is thereason for the well established “pre-sumption against preemption.” 63

The second case, United Haulers,involved a state law that required wastehaulers to bring their waste to a state-created public benefit corporation.64 Theconstitutional question was whether thedormant Commerce Clause precludedstate and local governments from favor-ing (i.e. showing preference to)government-owned corporations overprivate competitors.65 Roberts, writingfor the majority, strongly argued forjudicial restraint on the expansion of thedormant Commerce Clause.66 Despitemaking comments at his nominationhearing emphasizing stronger Congres-sional power, Roberts’ opinion

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strengthened states’ rights by holdingthat state enterprises should not betreated with as much skepticism as pri-vate businesses and therefore mayproperly be favored or preferred.67 Find-ing otherwise, he maintained, wouldlead to unbounded interference withlocal and state government by theCourts.68

Conversely, Alito, a champion of fed-eralism on the Third Circuit Court ofAppeals, argued in the dissent that bothpublic and private corporations shouldbe treated equally under the dormantCommerce Clause.69 Alito argued theCourt should not shirk its obligation tooverturn disruptions in the market, evenif the disruption involves state regula-tion within her police power of atraditional government function.70 Moresurprising, Alito harkened back to Gar-cia to remind the majority that thetraditional state functions analysis hasbeen found unsound in principle andunworkable in practice.71 Alito’sembrace of Garcia along with his disre-gard of states’ rights throughout hisdissent is a far cry from Justice O’Con-nor, whom Alito replaced, and leavesroom to question the future of the TenthAmendment.72

ConclusionOf the various structural elements the

Framers built into the constitution –checks and balances, separation of pow-ers, judicial review, and federalism – thelatter has been the only doctrine notunconditionally embraced by theCourt.73 The Court’s hesitation toimpose the limits expressed in the Tenth

Amendment is, in a word, ironic. The irony is that federalism “was the

unique contribution of the Framers topolitical science and political theory.”74

Federalism, in other words, is the defin-ing characteristic of Americangovernment as expressed in the writtenConstitution. Yet, for the better part ofthe past forty-five years, federalism hastaken a “back seat to an extensiveperiod of judicial activism” that hasreduced the Tenth Amendment’s impor-tance in constitutional law.75

Even if the Tenth Amendment remainsa weak limit on federal power, it never-theless serves an important role in themodern state/federal dichotomy. If noth-ing else, the Tenth Amendment istestament to the propriety and necessityof state regulators to continue to deviseinnovative responses to today’s chal-lenges. The Court’s recent federalismdecisions implicating the Tenth Amend-ment have placed the powers reserved tothe states back into the constitutional lawspotlight. So as it was at the beginning,states’ rights versus federal power contin-ues to be the great American question. n

ENDNOTES1. U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779, 846 (1995) (Thomas,J., dissenting) (quoting FEDERAL-IST NO. 39 (James Madison)).

2. U.S. CONST. amend. X.3. See David M. Palmer, Note, Untan-

gling Tenth Amendment Standing:Why Private Parties CannotEnforce the Federal Structure, 35HASTINGS CONST. L.Q. 169(2008).

4. See CATHERINE DRINKER BOWEN,MIRACLE AT PHILADELPHIA: THESTORY OF THE CONSTITUTIONAL CON-VENTION MAY TO SEPTEMBER (BackBay Books 1986) (1966).

5. Id. at 1787.6. U.S. CONST. amend. X.7. Reid v. Covert, 354 U.S. 1, 5-6

(1957).8. See United States v. Lopez, 514 U.S.

549 (1995) (reinforcing the principleof law that Congress possesses onlyenumerated powers).

9. ERWIN CHEMERINSKY, CONSTITU-TIONAL LAW: PRINCIPLES ANDPOLICIES 234 (3d ed. 2006).

10. New York v. United States, 505 U.S.144, 156 (1992) (quoting J. Story).

11. CHEMERINSKY, supra note 9, at 312.12. Id.13. Id. at 313.14. Id.15. Id.16. Id.17. New York, 505 U.S. at 157.18. Id.19. Printz v. United States, 521 U.S. 898,

923-924 (1997).20. Printz, 521 U.S. at 924 (quoting FED-

ERALIST NO. 33 (AlexanderHamilton)).

21. 4 Wheaton 400 (1819).22. 22 U.S. (9 Wheat.) 1 (1824).23. CHEMERINSKY, supra note 9, at 317.24. CHARLES F. HOBSON, THE GREAT

CHIEF JUSTICE: JOHN MARSHALL ANDTHE RULE OF LAW 20 (1996).

25. Id. at 113.26. 247 U.S. 251 (1918).27. Id.28. CHEMERINSKY, supra note 9, at 317.29. See Hammer v. Dagenhart, 247 U.S.

251 (1918).30. Palmer, supra note 3, at 170-71.31. 300 U.S. 379 (1937).32. Erwin Chemerinsky, Assessing Chief

Justice William Rehnquist, 154 U.PA. L. REV. 1331, 1359 (2006).

33. 312 U.S. 100, 124 (1941).34. Nat’l League of Cities v. Usery, 426

U.S. 833 (1976).35. Id. at 854.36. 469 U.S. 528 (1985).37. Id. at 546-47.38. Palmer, supra note 3, at 173; William

T. Barrante, States Rights and Per-sonal Freedom Breathing Life intothe Tenth Amendment, 63 CONN. BARJOURNAL 262, 262 (1989); ErwinChemerinsky, ReconceptualizingFederalism, 50 N.Y.L. SCH. L. REV.729, 739 (2005).

39. Palmer, supra note 3, at 173-74.40. United States v. Lopez, 514 U.S. 549,

552 (1995).41. Chemerinsky, supra note 38, at 739.42. New York v. United States, 505 U.S.

144, 153-54 (1992).43. Id. at 177.44. Id. at 161 (quoting Hodel v. Virginia

Surface Mining & ReclamationAssn., Inc., 452 U.S. 264, 288(1981)).

John J. Balenovichis a member of theKentucky and WestVirginia bar associ-ations. Aftergraduating fromBellarmine Univer-sity, Mr. Balenovichobtained his lawdegree from theLouis D. Brandeis

School of Law at the University ofLouisville and earned a Masters of Sci-ence in Justice Administration from theUniversity of Louisville. He focuses hispractice on debtor/creditor law, criminallaw, and commercial law.


45. Id. at 188.46. Id. at 161 (quoting FERC v. Missis-

sippi, 456 U.S. 742, 761-62 (1982)).47. CHEMERINSKY, supra note 9, at 324.48. Printz v. United States, 521 U.S.

898, 905 (1997).49. Id. at 935.50. Id.51. Reno v. Condon, 528 U.S. 141, 146

(2000).52. Id.53. Id. at 150.54. Id. at 151.55. Id.56. Chemerinsky, supra note 38, at 732.57. Dan Schweitzer, Federalism and

Separation of Powers: The DifferentApproaches of Chief Justice Robertsand Justice Alito on the Scope ofState Power, 9 ENGAGE 52, 52(2008).

58. Watters v. Wachovia Bank, N.A., 127S.Ct. 1559, 1566-67 (2007).

59. Id.60. See Id. at 1566-72.61. Id. at 1573.62. Id. at 1585.63. Id.64. United Haulers Ass’n, Inc. v.

Oneida-Herkimer Solid WasteMgmt. Auth., 127 S.Ct. 1790 (2007).

65. Schweitzer, supra note 58, at 55.66. United Haulers Ass’n, Inc., 127

S.Ct. at 1786.67. Id. at 1795.68. Id. at 1796.69. Id. at 1804-05.70. Schweitzer, supra note 58, at 56.71. United Haulers Ass’n, Inc., 127

S.Ct. at 1810.72. Marci Hamilton, A Recent Opinion

Shows a Clear Split Between ChiefJustice Roberts and Justice Alito onFederalism Issues-With RobertsDisplaying Justice O’Connor’sRespect for the States, and AlitoLacking that Respect, FINDLAW,May 3, 2007,http://writ.lp.findlaw.com/hamilton/20070503.html.

73. United States v. Lopez, 514 U.S.549, 575 (1995).

74. Id. 75. John H. Clough, Federalism: The

Imprecise Calculus of Dual Sover-eignty, 35 J. MARSHALL L. REV.1, 42 (2001).

Lexington, Kentucky


By Bill Lear & David Fleenor

Recent controversies concerningthe governing boards of theCommonwealth’s public uni-versities1 and the leadership of theCouncil on Postsecondary Education,2

bring into focus the overall impor-tance of boards and commissions inthe structure of state government.These controversies also highlight acontinuing tension between the Gover-nor’s authority to make appointmentsto those boards and the GeneralAssembly’s desire to limit that power.The stakes are not insignificant. Thenearly 500 boards and commissions inthe Commonwealth regulate anddefine nearly every aspect of ourlives. Professions as diverse as medi-cine and barbering have their owngoverning boards. The worker’s com-pensation system, public utilities,election finance, and executive branchethics, each have a specialized boardthat governs it or adjudicates disputesor both. These boards and commis-sions are diverse in function butsimilar in that they are typicallyattached to the executive branch ofgovernment and are controlled byappointees as opposed to elected offi-cials. Those appointees are primarilyselected by Kentucky’s Governor. Thepower of the Governor to makeappointments to these boards is a con-stitutional prerogative of theCommonwealth’s “Chief Magistrate,”3

a prerogative that is not unfettered andwhich is limited in varying degrees bylegislation enacted by the LegislativeBranch and interpreted by the JudicialBranch. This article will examine theconstitutional basis of the Governor’sappointment power, the practicalaspects of the use of that power, andthe attempts by the General Assemblyto limit that power.4

CONSTITUTIONAL PROVISIONSAFFECTING THE GOVERNOR’SAPPOINTMENT POWER

At first blush it would appear that theGovernor’s power to make appointmentsto the Commonwealth’s Boards andCommission is contained within Section76 of the Constitution, which states:

He shall have the power, exceptas otherwise provided in thisConstitution, to fill vacanciesby granting commissions,which shall expire when suchvacancies shall have been filledaccordingly to the provisions ofthis Constitution.5

Courts in Kentucky have inconsistentlyapplied this Section to the Governor’s

appointment power for Boards and Com-missions. Most cases have held thatSection 76 applies only to constitution-ally created offices. Typical of these arePoyntz v. Shackleford6 and Rouse v.Johnson.7 In these two cases the Ken-tucky Court of Appeals held that Section76 had no applicability to legislativelycreated positions. The plain language ofSection 76 supports that view. At leastone case in the Kentucky Supreme Courtsubsequent to Poyntz and Rouse, how-ever, has referenced Section 76 as thebasis of the Governor’s power to appointmembers to university boards.8 Relianceupon Section 76 was not critical to theresult in that case. The Court referencedthat section only to show that it con-

Board and Commission Appointments:Executive Power — With Limits

tained no prohibition that would haveprevented Governor Wallace Wilkinsonfrom appointing himself. The same hold-ing could be reached by reference toother sections of the Constitution thathave been used as a basis for the Gover-nor’s appointment power.

This is not to suggest that Section 76does not provide the Governor with anextremely important appointmentpower. That section clearly applies tovacancies in constitutionally createdoffices. This includes judges in all ofthe Commonwealth’s courts, countyjudge executives, and CommonwealthAttorneys to name a few. These guber-natorial appointments are temporary;however, lasting only until the nextscheduled election. The procedures forthese appointments are also laid out inexpress terms within the body of theKentucky Constitution. See Section 152of the Kentucky Constitution. Gubena-torial appointments to Constitutionaloffices have thus not been the subject ofthe same volume of litigation as boardand commission appointments.

More to the point with respect toboard and commission appointments isSection 93 of the Kentucky Constitutionwhich states in pertinent part:

Inferior State officers andmembers of boards and com-missions, not specificallyprovided for in this Constitu-tion may be appointed orelected, in such manner as maybe prescribed by law, whichmay include a requirement ofconsent by the Senate, for aterm not exceeding four years,and until their successors areappointed or elected and quali-fied.9 (Emphasis supplied.)

Significantly, the phrase “boards andcommissions” and the provision for con-sent by the Senate were both added by aConstitutional Amendment ratified bypopular vote in 1992. The phrase “insuch manner as may be prescribed bylaw” would seem to give the legislaturefairly broad latitude in limiting theappointment power, until it is pairedwith the “consent by the Senate” lan-guage. Under this approach, the “in suchmanner as may be proscribed by law”language only allows the General

Assembly to determine whether a posi-tion will be elected or appointed, and notthe manner of appointment. As will bediscussed in more detail below, theSupreme Court has at times taken theposition that the separation of powersdoctrine limits the ability of the GeneralAssembly to only this “advise and con-sent” roll. At other times the Court hasallowed a more expansive oversight role.

Yet another section of Kentucky’sConstitution has an impact on the Gov-ernor’s appointment power. Section 23of the Kentucky Constitution says noth-ing about boards and appears aimedonly at preventing Kentucky from con-ferring titles of nobility.Notwithstanding the lack of express ref-erences to appointment power, Section23 has been used as a basis for the cre-ation of certain board and commissionoffices and is so referenced in theunderlying legislation. Specifically, thatSection of the Constitution is used whenthe General Assembly has created boardoffices with a term in excess of fouryear limit contained in Section 93.10

The seminal case of LRC v. Brown,11

a 1982 Kentucky Supreme Court case,took a different approach in defining theGovernor’s appointment powers, ignor-ing Sections 76, 93 and 23. This casehas been called by legal commentatorsthe Kentucky Marbury v. Madison.12

The approach taken by the Court inBrown viewed the Governor’s appoint-ment power as implicit in the doctrineof separation of powers contained inSections 27 and 28 of the KentuckyConstitution. Section 27 divides thepowers of the government into three (3)distinct departments. Section 28 states:

No person or collection of per-sons, being of one of thosedepartments, shall exercise anypower properly belonging toeither of the others, except inthe instances hereinafterexpressly directed or permitted.

As Kentucky’s Separation of Powersprovision is particularly strong, theholding of Brown would seem to indi-cate that the Governor’s appointmentpower can only be limited by the adviseand consent function of the Senateadded in the 1992 Amendment to Sec-tion 93. Despite the language of Brown,

Courts have not always taken that hardline approach.

GENERAL STATUTORY PROVISIONSProcedures for the Governor’s

appointments are outlined within Chap-ters 11 and 12 of the Kentucky RevisedStatutes. Specifically, KRS § 11.160delineates the process for GeneralAssembly confirmation of appoint-ments. It provides that a boardappointment may be subject to confir-mation by the Senate or by the Senateand the House of Representativesdepending upon the specific enablinglegislation. The appointee requiringconfirmation is allowed to serve prior tohis confirmation.13 However, if not con-firmed, the appointment expires at theend of the General Assembly sessionthat declined to confirm the appointee.The Governor may not reappoint thatperson to the same position for a periodof two (2) years.14 As noted before, theprovisions of Section 93 concerningSenate confirmation would at leastarguably appear to be at odds with astatutory provision requiring Senate andHouse confirmation. That issue has yetto be resolved by a court.

KRS § 12.070 contains requirementsfor minority representation on Boardsand Commissions. It also contains aprovision that allows the Governor toreject a list and require that other listsbe submitted in those instances wherehe is required to select from a list. Arecent decision by the Kentucky Courtof Appeals has made it clear that theGovernor’s power to reject a list is notlimited solely to the instance of achiev-ing minority representation.15 There wasa dissent to that decision and it is not anabsurd position to view this statute asonly applying to issues affecting minor-ity representation.

ILLUSTRATIVE BOARDSContained within the numerous

Boards and Commissions which regu-late affairs in the Commonwealth ofKentucky are several distinctapproaches to appointment of boardmembers. In some instances the Gover-nor’s appointment power is completelyunfettered. He may appoint whomeverhe chooses and that appointment is not



subject to any confirmation process. Insome instances the Governor mustselect from a list of potential nomineessubmitted by another entity, but hisnominee is not subject to confirmation.At the other end of the spectrum, thereare Boards in which the Governor mustpick from a list and the choice is subjectto confirmation by one or more of thehouses within the General Assembly.These approaches are best explained byreference to specific boards.

The Executive Branch Ethics Com-mission consists of five members, allappointed by the Governor.16 Eachserves a four year term. Even a oneterm Governor will over time have theopportunity to appoint a majority of theEBEC. The EBEC has significantpower: the ability to issue subpoenas,levy fines of up to $5,000.00, and issuerecommendations that state employeeshave their employment terminated. Theonly constraint on the Governor’sappointment power is that an appointeebe a registered voter. Currently, no con-firmation process is in place.

The Worker’s Compensation Board

consists of three members with stag-gered four year terms. The Governormakes his choice from a list submittedby a nominating commission.17 Themembers of the nominating commissionare in turn also appointed by the Gover-nor, subject to certain qualifications.Members of the Board are subject toSenate Confirmation.18 Members of thenominating commission are not.

University Boards, a subject of recentlitigation, are a hybrid form of appoint-ment. The Governor is required to pickfrom a list submitted by the Post Sec-ondary Education NominatingCommittee.19 Contained within thestatute that set up the university boardsare requirements that the composition ofthe boards must be balanced both politi-cally and try to achieve fullrepresentation of the sexes as well asminority representation.20 The nominat-ing committee that submits the list tothe Governor itself must reflect repre-sentation of the sexes, minorityrepresentation and voter registration inits membership.21 Finally, the membersof the Nominating Committee must be

confirmed by both houses of the Gen-eral Assembly. Members of theUniversity Boards are not subject toGeneral Assembly confirmation.

As a final note on university boards,these appointments are for a term of six(6) years. This would seem squarely atodds with the requirement containedwithin Section 93 of the Constitutionthat a Board appointment not last longerthan four (4) years. Kentucky’s highestcourt passed on its last opportunity todetermine this issue.22 The current statu-tory schemes however, indicate thatthese appointments are made pursuantto Section 23 of the Constitution. Sec-tion 23 states that appointments shallonly be for a term of years with no ref-erence to a specific number of years.This provision was first seen in theConstitution of 1792 and in fact is partof the Kentucky Bill of Rights. Viewedin the context of the years immediatelyafter the Revolutionary War, this sectionappears aimed more at preventing titlesof nobility. Nevertheless, it has beenused as an expedient to achieve six (6)year appointments, and its applicability

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Another appointment method isreflected in the State Board of MedicalLicensure. Of the fifteen members,eleven are appointed by the Governor.The other four are ex officio members.Eight of the eleven members appointedby the Governor are to be selected fromlists provided the Kentucky MedicalAssociation and the Kentucky OsteopathAssociation. Three appointments arecompletely within the discretion of theGovernor, subject to the qualificationthat they represent a consumer healthadvocacy. None of the fifteen membersof this board are subject to confirmation.

CASESThe concept of requiring the Gover-

nor to pick from a list supplied byanother entity would seem to be animproper delegation of the Governor’sauthority. The constitutionality of thisdelegation of authority was firstaddressed in Elrod v. Willis.24 That caseconcluded that requiring the Governorto make his appointment to the Disabled

Ex-Servicemen’s Board from a list sup-plied by the American Legion wasconstitutional. The Court held that thisprocedure did not violate separation ofpowers as it “… merely sets in motionthe machinery by which its purpose willbe effected.”25 The Governor still madethe appointment.

The issue of whether the Governormay be required to pick from a listseemed to have been answered in thenegative in 1984 by the Supreme` CourtLRC v. Brown. The post-Brown argu-ment would be that requiring theGovernor to select from a list submittedby another entity would usurp a powerreserved exclusively for the Governor.However, in the 1991 case of KentuckyAssociation of Realtors v. Musselman26

the Supreme Court decided that listswere still an acceptable procedure, albeitwith a strong dissent from part of theCourt. The Musselman case involved thepractice of appointments to the RealEstate Commission being made from alist submitted by Kentucky Associationof Realtors. The Court distinguishedBrown on the basis that the entity pro-viding the list was not the LRC or theGeneral Assembly. Since the Governorstill had the ability to pick from the list,and implicitly since the Governor hadthe ability to reject the list in its entiretyand require a subsequent list, the Courtheld that this passed Constitutionalscrutiny, if only barely.

The Wilkinson case involved theappointment to the University of Ken-tucky Board of Trustees of WallaceWilkinson and merits another look.27

While the case stands for the proposi-tion that a Governor can appointhimself, that occurrence triggered acomplete revision of the statutes con-cerning university boards. Under themodern provisions of KRS Chapters164, the Governor may make anappointment to a University Board onlyfrom names on list submitted by thePostsecondary Education NominatingCommission. That Commission mustadhere to strict requirements in formal-ity, as to the list composition, and theappointments to the Commissionrequire confirmation by both houses ofthe General Assembly.

Kraus v. The Kentucky State Senate28

directly addressed the issue of whether astatute could require confirmation of thegubernatorial appointment by one bodyof the General Assembly, in thatinstance the Senate. At issue was arejected Worker’s CompensationAdministrative Law Judge who hadbeen denied confirmation by the Senate.The Court ultimately held that the StateSenate has an inherent power to adviseand consent on Executive Branchappointments. This case was decidedprior to the Amendment to Section 93which made the Senate’s advise andconsent power express. Again the casecontained a strong dissent which ques-tioned whether the advise and consentfunction of the Senate had beenremoved by the Constitution of 1892.An express advise and consent provi-sion had been considered in theConstitutional Convention of 1890-91.That provision was ultimately rejected.The dissent viewed this as a constrainton the Governor’s executive power anda violation of the separation of powerprovisions of Section 27 and 28 of theKentucky Constitution.

In a slightly different context, Praterv. Commonwealth29 examined separa-tion of powers from the view point ofseparation between the Executive andJudiciary divisions. That case heldunconstitutional a judicial pre-releaseprogram as it impermissibly conferredthe Executive Power of Pardon andClemency upon the Judiciary.

Finally, in Galloway v. Fletcher,30 themost recent case to deal with the Gover-nor’s appointment power, the Court ofAppeals held that the Governor had theright to reject the list for reasons otherthan achieving minority representation.

CONCLUSIONBoards and Commissions constitute a

powerful and far reaching element ofthe Executive Branch of Government.In the Commonwealth of Kentuckythere are nearly five hundred (500) ofthese Boards and Commissions whichregulate or adjudicate many aspects ofour daily life. The power to fill theseappointments is an important element ofthe Governor’s overall power andallows that official to effect governmentwell beyond his term of office. Recent

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controversy and litigation concerningthe Governor’s appointment power isnothing new and will likely not beresolved in the near future. n

ENDNOTES1. Comm. Ex rel. Conway v. Beshear,

Franklin Court, Civil Action No.07-CI-1456. The action was origi-nally filed by then Attorney GeneralGreg Stumbo against then GovernorErnie Fletcher challenging whetherappointments to the universityboards reflected voter registrationas required by statute. The newlyelected Governor and AttorneyGeneral agreed to dismiss the case.

2. “Cowgill Resigns Post” LexingtonHerald Leader April 30, 2008. TheCouncil on Postsecondary Educa-tion, composed of gubernatorialappointees had initially selectedBrad Cowgill as the Council’s pres-ident over the Governor’sobjections. Mr. Cowgill voluntarilyresigned to defuse the controversy.

3. Section 69 of the Kentucky Consti-tution provides that “The supremeexecutive power of the Common-wealth shall be vested in the ChiefMagistrate, who shall be styled the‘Governor of the Commonwealthof Kentucky.’”

4. The issues raised in this article areuniquely issues of Kentucky law.References to the “Constitution”are references to the KentuckyConstitution in its current form.References to decisions of the“Supreme Court” refer to the Ken-tucky Supreme Court.

5. Kentucky Constitution, Section 76.6. Poyntz v. Shackleford, 54 S.W. 855

(Ky. 1900). “It cannot, of necessity,have any application to vacancies inoffice for the filling of which noprovision is made in the constitu-tion; for, as to such offices, therewould be no period at which thecommissions granted by the gover-nor would expire.” Id at 857-8.

7. Rouse v. Johnson, 78 S.W. 2d 145(Ky. 1930). This case dealt with theconstitutionality of a statute thattook the appointment power for theState Highway Commission awayfrom the Governor and lodged it

with an appointing board. Theappointing board consisted of theGovernor, Lieutenant Governor andAttorney General. Ultimately, theCourt avoided deciding the consti-tutionality question.

8. Comm. ex rel. Cowan v. Wilkinson,828 S.W. 2d 610 (Ky. 1992). TheCourt discussed the Governor’sappointment authority solely byreference to Section 76.

9. Kentucky Constitution, Section 93.10. Section 23 of the Kentucky Consti-

tution states: “The GeneralAssembly shall not grant any titleof nobility or hereditary distinction,nor create any office the appoint-ment of which shall be for a longertime than a term of years.” KRSChapter 165 references this sectionas creating university board termsof six years, directly contrary to theSection 93 limit of four years.

11. LRC v. Brown, 664 S.W. 2d 907(Ky. 1984).

12. See Snyder and Ireland, The Sepa-ration of Governmental PowersUnder the Constitution of Ken-tucky: A Legal and HistoricalAnalysis of LRC v. Brown, 73 KyL.J. 165 (1984-85).

13. KRS §§ 11.160(1)(f) and11.160(2)(h).

14. KRS § 11.160(1)(h) and11.160(2)(i).

15. Galloway v. Fletcher, 241 S.W. 3d(Ky. App. 2007). In that case theGovernor rejected a list of threepotential appointees to the MurrayState University Board. The Gover-nor ultimately made theappointment from a subsequent listsubmitted to him by the Post Sec-ondary Education NominatingCommittee. The disappointed nomi-nees from the first list brought suit.

16. KRS § 11.06017. KRS § 342.21318. Id.19. KRS § 164.005(5)(a)20. KRS §§ 164.131, 164.321 and

164.821.21. KRS § 164.00522. Jones v. Forgy, 750 S.W. 2d 434

(Ky. 1988). The court declined todecide the case as the terms of thetrustees at issue had expired, thus

rendering the issue moot.23. The General Assembly has been

inconsistent in its approach to thelength of term of state universityboard member. Until 1988, KRSChapter 164 provided for six yearterms. In 1988, the statutes wereamended to shorten that period tofour years. In 1992, the term wasagain lengthened to six years, andthe reference to Section 23 wasadded.

24. Elrod v. Willis, 203 S.W. 2d 18 (Ky.1947)

25. Id at 228.26. Kentucky Association of Realtors v.

Musselman, 817 S.W. 2d 213 (Ky.1991).

27. Comm. ex rel. Cowan v. Wilkinson,828 S.W. 2d 610 (Ky. 1992).

28. Kraus v. The Kentucky StateSenate, 872 S.W. 2d 433 (Ky.1994).

29. Prater v. Commonwealth, 82 S.W.3d 898 (Ky. 2002).

30. Galloway v. Fletcher, 241 S.W. 3d(Ky. App.2007).

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In our world of extraordinary reli-gious plurality, schisms withindenominations occur with great fre-quency, often bringing with them thefascinating legal problem of who keepsthe bricks, mortar, records and savingsof the institution. The problem can arisein virtually any denomination, from themost hierarchical to the most congrega-tional. Here in Kentucky, for example,we have recently seen people in theEpiscopalian tradition coming close tolitigation after the consecration of V.Gene Robinson, an openly gay man, asBishop of the Diocese of New Hamp-shire.1 On first impression, one mightthink that cases arising in this areainvolve only the laws of property, con-tracts, trusts and estates, but in fact suchcases strongly implicate the FirstAmendment as well.2 First, lack ofaccess to adequate, familiar facilitiescan affect free exercise, as can the exi-gencies of litigation itself, particularlydiscovery. Second, civil courts areunderstandably wary of being calledupon to construe ecclesiastical terms,given the risk of establishment posed bysuch construction. In light of these con-cerns, a handful of somewhatspecialized approaches to resolvingecclesiastical disputes over bricks andmortar have developed. The purpose ofthis essay is to describe three of themost historically prominent of theseapproaches, with specific reference toprevailing rules in Kentucky.

The Doctrine of Implied TrustUntil fairly recently, one of the most

common methods of resolving such dis-putes, at least with regard tohierarchical denominations, was toapply the doctrine of implied trust.Under this doctrine, a grant of propertyto a local church was deemed to be “forthe benefit of the general church

[meaning the church’s hierarchy] on thesole condition that the general churchadhere to its tenets of faith and practiceexisting at the time of affiliation by thelocal [church].”3 This doctrine reflectedthe fairly simple assumption that, whenpeople gather together on a local basis,raise money, build a church, and affili-ate themselves with a larger institution,they do so on the implied understand-ing that the latter will continue toespouse the basic theological doctrinethat it holds forth at the time of affilia-tion. Courts maintained a similardoctrine for churches adopting a con-gregational polity.4

Needless to say, there are flaws inthis theory. First, it depends on a sup-position of the exact nature of theoriginal grantors’ intent. Althoughmany donors may be particular aboutdoctrine, others may not. Others, infact, might wish to facilitate theologicalinnovation by worshipers to follow. Asecond, related problem arises fromconflicting rights. That is, whose rightsshould control – those of the donors,who may be long deceased, or those ofworshipers who prefer the innovation atissue, and who may be many in num-ber? One might answer that a conditionattached to a gratuitous grant should berespected out of deference to the rightsof property, but of course the doctrinedoes not require the condition to beexplicit. This tension is obviously mostacute when the condition is explicit,that is, when the original donor doesmake his or her grant subject to anexpress religious use.5

But the formal demise of the doctrineof implied trust did not in fact arisefrom any of the foregoing concerns.Instead, it arose from the anxietycourts felt with distinguishing one the-ological concept from another. Toillustrate, consider a grant to the hypo-thetical “First Church ofReincarnation,” subject to a condition

that its clergy continue to espouse rein-carnation as a theological concept.Assume that, well after the demise ofthe donor, a new minister took to thepulpit of the church and began todescribe reincarnation as merely ametaphor for the fact that each day is anew day, wherein we can be new andbetter people. People of common sensemight be able to formulate a reasonableopinion about whether the new minis-ter’s theology is consistent with theintentions of the donor, but courtsunderstandably are wary of the entan-glement that might arise from makingthese kinds of determinations in alegally binding way. Thus, in Presby-terian Church in the United States v.Mary Elizabeth Blue Hull MemorialChurch, the Supreme Court of theUnited States held that the doctrine ofimplied trust could not be applied in amanner consistent with the FirstAmendment to the federal Constitu-tion.6 As the Court noted in Hull, the“departure-from-doctrine element” ofthe theory “requires the civil court todetermine matters at the very core of areligion – the interpretation of particu-lar church doctrines and the importanceof those doctrines to the religion.”“Plainly,” it went on to say, “the FirstAmendment forbids civil courts fromplaying such a role.”7 Ironically, thisrationale would appear to apply just asforcefully to express trusts in favor ofreligious uses as to imp

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