A story ran this weekend under a headline suggesting the Attorney General’s power was threatened with “crippling,” depending on the outcome of a Kentucky Supreme Court case to be argued this Thursday. The story was really more of a sideways tickler about the issues that are before the Court, than a full analysis of what the Supreme Court will really decide. In fact, at the end of the day, this case is more about what the legislature has done or will do (or refuse to do) in the future than any kind of real ultimatum about the power of the Attorney General.
The defendant who challenged the drug investigations conducted in Powell County did so under a claim that, by reading various statutes governing and establishing authority of the Attorney General, one simply could not find the authority to conduct a narcotics investigation in a county which had not “invited” the Attorney General’s presence. Therefore, says he, the court should dismiss a case against me which was investigated by employees of the AG’s office. The Circuit Court Judge in Powell County disagreed and allowed the indictment to stand, but two panels of the Court of Appeals disagreed with the analysis, if not the result.
We say “if not the result” because the contention on behalf of the AG has always been that there is a secondary reason for upholding this particular indictment, unrelated to the statutes empowering the Attorney General. And, in fact, the Court of Appeals left open the idea that the Attorney General may be right on that score, by “remanding” the case to Circuit Court for further analysis. The contention, specifically, was that the investigators in this particular case did not actually engage in conduct which was outside their authority– and, therefore, there may be no need to have the “bigger” issue decided regarding the statutes.
On the issue of these empowering statutes: these statutes are, it is fair to say, far from clear on that point. Over the history of that office, various terms of the legislature have seen fit to carry out little pet projects here and there, variously adding, subtracting and amending the Attorney General’s authority, based on the hot issue of that month or year. Often enough, the Attorney General himself was not even involved in these acts of legislative tinkering. So, does the AG’s authority simply collapse if the Supreme Court decides to read the statutes the same way five judges of the Court of Appeals have, and find that this authority is not there? Absolutely not: it means that the Attorney General simply has a legislative initiative to undertake, seeking to have the elected representatives in the General Assembly clearly and unmistakably grant him to authority he may now not have. Of course, that requires initiative and support in the legislature. Perhaps that could have been tried before it all came to this point.
In that sense the case is “big” because it may have more to do with how much power over individuals a state agency can claim for itself out of the (sometimes ambiguous) words used by the legislature, before that agency has to go back to the legislature and have it spelled out (and quite possibly be refused in that request). Many citizens would answer “not one bit more than what is in black and white,” while others are willing to take a rosier view, willing to find powers that are “implied.”