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Franklin Circuit Court Decision
Franklin Circuit Court Decision
TO BE PUBLISHED
House Bill (H.B.) 1,1 Senate Bill (S.B.) 1,2 S.B. 2,3 and House Joint Resolution
(H.J.R.) 774 which the General Assembly enacted during the 2021 regular
case or controversy but that the Franklin Circuit Court abused its discretion in
issuing the temporary injunction. Accordingly, we remand this case to the trial
authority vested in [him] by [KRS] Chapter 39A,” i.e., the “Statewide Emergency
November 2020, this Court held that the executive orders were valid since the
legislature had given the Governor the power to issue them under the
Beshear v. Acree, 615 S.W.3d 780, 802 (Ky. 2020). Further, at the onset of the
Act of Mar. 30, 2020, ch. 73, 2020 Ky. Acts 310 (2020 S.B. 150). However, in
Acree, we clarified that going forward, the General Assembly could limit the
with KRS Chapter 39A is necessarily broad,” many “checks [exist] on that
2
authority,” including “legislative amendment or revocation of the emergency
Acree by passing H.B. 1, S.B. 1, and S.B. 2 which restrict the Governor’s ability
those bills and the General Assembly overrode his vetoes. The bills became
Secretary of the Cabinet for Health and Family Services (“CHFS”),8 filed this
powers under Sections 2, 27, 28, 36, 42, 55, 59, 60, 69, 75, 80 and 81 of the
to the ongoing COVID-19 pandemic and creates a public health crisis that will
result in increased disease and death. The Governor sued Speaker of the
ease of reference.
3
legislative defendants (Osborne, Stivers, and LRC) filed motions to dismiss
the legislation, the Governor and the public would suffer immediate and
irreparable harm in the absence of injunctive relief, and the public interest and
the balance of the equities required the granting of injunctive relief. The
Attorney General filed for CR10 65.0711 relief with the Court of Appeals to
vacate the temporary injunction, arguing that the Franklin Circuit Court
lacked jurisdiction to issue the temporary injunction since the Complaint does
Not long after the trial court granted injunctive relief, the General
days, but terminating all other COVID-related orders and regulations. The
Governor vetoed that resolution, and the General Assembly overrode his veto.
9The trial court’s denial of the legislative defendants’ motion to dismiss is not at
issue in this appeal.
10 Kentucky Rules of Civil Procedure.
11A party may move for interlocutory relief pursuant to CR 65.07 when a circuit
court “by interlocutory order has granted, denied, modified, or dissolved a temporary
injunction[.]” CR 65.07(1). An appellate court may grant emergency relief if the
movant demonstrates that the irreparable injury will occur before the motion for
interlocutory relief may be considered by a three-judge panel. CR 65.07(6).
4
2020-215, the Governor’s original emergency declaration, as one of the
executive actions which would expire in ninety days, or by June 28, 2021. The
77, to which the Attorney General objected. The Franklin Circuit Court
granted the Governor’s request and put a hold on the implementation of HJR
77 as well. The Attorney General immediately filed for CR 65.07 relief with the
expedited basis due to these issues being of great and immediate statewide
importance.
II. Analysis
Two questions are presented for our review: (1) whether this lawsuit
A. Justiciability
controversy. Commonwealth Cabinet for Health & Fam. Servs., Dep’t for
Medicaid Servs. v. Sexton ex rel. Appalachian Reg’l Healthcare, Inc., 566 S.W.3d
185, 196 (Ky. 2018). Indeed, “all Kentucky courts have the constitutional duty
Id. (internal quotations and footnotes omitted). “If a case is not justiciable,
specifically because the plaintiff does not have the requisite standing to sue,
improperly seeks relief against legislative acts of the General Assembly, which
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the Attorney General asserts are not appropriate subjects of injunctive relief.
CR 65.01; CR 65.04. The Attorney General argues that the only provision of
to exercise that power. The Attorney General points to this Court’s repeated
branch the power to suspend a law, that branch constitutes the General
a suspension of the laws does not violate Section 15.” Commonwealth ex rel.
Beshear v. Bevin, 575 S.W.3d 673, 679 (Ky. 2019) (citing Lovelace v.
Commonwealth, 285 Ky. 326, 336, 147 S.W.2d 1029, 1034–35 (1941)).
case, the Governor would have standing to sue to prevent the General
Assembly from repealing or amending laws that he likes, or sue to make it pass
bills he wants.
7
The Attorney General further asserts that no injury has occurred,
pointing out that the challenged legislation does not prevent the Governor from
emergencies. Not only is there no injury, the Attorney General argues that he
certainly did not cause any injury to the Governor since the complained-of
legislation was not enacted by him. See Sexton, 566 S.W.3d at 196 (holding
injunction issued by the trial court did not redress anything, as it did not
683 S.W.2d 260, 263 (Ky. App. 1984) (requiring that injunctions “describe in
reasonable detail the act to be restrained[]”); see also CR 65.01 (injunctive relief
can only “restrict or mandatorily direct the doing of an act[]”). Therefore, the
Attorney General argues that the Governor’s alleged injury clearly cannot be
to bring this suit because the General Assembly violated Section 69 of the
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Kentucky Constitution13 by delegating veto control to the Attorney General over
remain with the Governor. Because S.B. 1 gives the Governor authority to
enjoining the Attorney General from possessing or exercising this veto power
over his exercise of emergency authority. The Governor further argues that
this right is present: under S.B. 1, the Attorney General can exercise his veto
right during an emergency and the Commonwealth was and is currently under
a declared state of emergency. The Governor maintains that he need not wait
until the Attorney General exercises his veto power since whether the Attorney
regardless of whether the Attorney General has yet to exercise veto authority.
9
In support, the Governor directs us to Board of Education v. Bushee, 889
school policy consistent with district board policy” and a Boone County Board
of Education policy that required school councils to submit “for Board review
and approval” a plan containing measurable goals and objectives for the
upcoming school year. Id. at 810. Thus, the clash in Bushee involved the
Education’s policy that would have removed that authority. This Court held
that the Boone County Board of Education’s new policy of requiring its
justiciable controversy, even though no such plan had yet been submitted for
be required at all. Id. at 811. The Bushee court noted that in a declaratory
judgment action, this Court has long recognized that “the question is not one of
Dravo v. Liberty Nat. Bank & Trust Co., 267 S.W.2d 95, 97 (Ky. 1954) (emphasis
bar deals with a grant of authority from the General Assembly and a
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subsequent alteration of that grant of authority by the General Assembly,
bodies. In other words, this case involves a statutory amendment by the one
body authorized to amend the statute. But really, the conflict here is between
The Attorney General further distinguishes Bushee on the basis that the
parties in that case were on a collision course involving a concrete dispute with
an impending deadline that could not be avoided. Here, the Attorney General
argues that whether there will ever be a conflict is purely speculative and
abstract. While a plaintiff might not have to incur harm before seeking a
409, 417 (Ky. 2020) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
Assembly could lawfully require the Attorney General’s approval in the first
place. Thus, the Governor was not required to wait to file suit until the
Attorney General invoked his veto power. See Commonwealth v. Ky. Ret. Sys.,
396 S.W.3d 833, 839 (Ky. 2013) (holding that “[t]he [Declaratory Judgment] Act
allows courts to determine a litigant’s rights before harm occurs, and requires
11
defendant’s position would ‘impair, thwart, obstruct or defeat plaintiff in his
rights[]’”) (quoting Revis v. Daugherty, 215 Ky. 823, 287 S.W. 28, 29 (1926)).
See also Jamgotchian v. Ky. Horse Racing Comm’n, 488 S.W.3d 594, 600 (Ky.
2016) (holding that the plaintiff, a licensed owner in good standing to claim
horses, was not required to wait until being sanctioned by the Commission
regulations); Jarvis v. Nat’l City, 410 S.W.3d 148, 153 (Ky. 2013) (explaining
the scope of a statute “to have their rights and obligations [under the statute]
declared without being forced to act improperly and initiate litigation after an
injury has occurred[]”); cf. Foley v. Commonwealth, 306 S.W.3d 28 (Ky. 2010)
We find the present case more analogous to Jamgotchian and Jarvis than
14 As an aside, and while this analysis has focused on S.B. 1, the trial court
enjoined enforcement of three other pieces of the 2021 legislation, H.B. 1, S.B. 2. and
H.J.R. 77. Currently before this Court are two other cases, Beshear v. Goodwood
Brewing Co., 2021-SC-0126-I (Scott Circ. Ct., No. 21-CI-000128), and Beshear v.
Ridgeway Props., LLC, 2021-SC-0228 (Boone Circ. Ct., No. 20-CI-00678). In each of
these cases, the Attorney General, either as a party or amicus curiae, is arguing in
support of the constitutionality of the 2021 legislation and against the Governor.
12
B. Temporary Injunction Not Warranted
With respect to our review of the trial court’s analysis under Maupin,
(Ky. 2009) (internal quotations and footnotes omitted). “The test for abuse of
v. English, 993 S.W.2d 942, 945 (Ky. 1999)). Notably, “[a] motion for a
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temporary injunction does not call for, or justify, an adjudication of the
ultimate rights of the parties. . . . [and] should issue only where it is clearly
shown that one’s rights will suffer immediate and irreparable injury pending
review, however, the appellate court may properly determine that findings are
law. Rogers v. Lexington-Fayette Urb. Cnty. Gov't, 175 S.W.3d 569, 571 (Ky.
2005). In this instance, we find that the trial court’s issuance of injunctive
Complaint, and persuade the court that the equities balanced in favor of
issuance.
1. Irreparable Injury.
on the harm to his ability to protect the public during a global pandemic, and
the claimed harm to the constitutional power and authority of his office. We
emphasize that in our following discussion and analysis we do not question the
Governor’s good faith in taking steps he believes are necessary in dealing with
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decisions, as aptly stated by Justice William O. Douglas, “no doubt that the
emergency which caused the [executive to take action] was one that bore
heavily on the country. But the emergency did not create power; it merely
Tube Co. v. Sawyer, 343 U.S. 579, 629 (1952) (Douglas, J., concurring). Over
the last forty years, this Court has been explicit that the Governor’s powers,
derive from statutes passed by the General Assembly. See, e.g., Commonwealth
ex rel. Beshear v. Commonwealth ex. rel. Bevin, 498 S.W.3d 355, 369 (Ky. 2016)
rel. Stumbo, 163 S.W.3d 852, (Ky. 2005) (rejecting Governor’s claim of implied
emergency); Brown v. Barkley, 628 S.W.2d 616, 621 (Ky. 1982) (detailing the
powers and duties on the Governor).16 In fact, in Brown, we held that “to the
extent that the Governor has any implied or inherent powers in addition to
those the Constitution expressly gives him, it seems clear that such
15
In Fletcher, we approvingly quoted the following,
Fletcher, 163 S.W.3d at 871 (quoting Youngstown, 343 U.S. at 646, 649–50,
Salvage, Inc., 286 S.W.3d 790, 806 (Ky. 2009) (quoting Ky. Indus. Util.
Customers, Inc. v. Ky. Utils. Co., 983 S.W.2d 493, 499 (Ky. 1998)). Considering
that the General Assembly is the policy-making body for the Commonwealth,
16
legislative body’s policy choices. In fact, non-enforcement of a duly-enacted
statute constitutes irreparable harm to the public and the government. See
Boone Creek Props., LLC v. Lexington-Fayette Urb. Cnty. Bd. of Adjustment, 442
S.W.3d 36, 40 (Ky. 2014) (holding that the statute’s enactment constitutes an
implied finding by the legislature that the public interest required it). Whether
the extent of the Governor’s exercise of emergency authority during the COVID-
legislature under KRS Chapter 39A. Acree, 615 S.W.3d at 812–13. Indeed, in
[T]o the extent that the Governor has any implied or inherent
powers in addition to those the Constitution expressly gives him, it
seems clear that such unexpressed executive power is subservient
to the overriding authority of the legislature, and . . . the officers
named in Const. Sec. 91 have only such powers and duties as are
assigned to them by legislative enactment or by executive order
expressly authorized by statute.
628 S.W.2d at 621 (holding that the Governor did not have constitutional
by the enabling statute and a related statute pursuant to which the order was
issued). Further,
Id. at 623.
the Constitution, [the Governor’s] powers, like those of the executive officers
created by Const. Sec. 91, are only what the General Assembly chooses to give
him.” Id. Thus, the Governor has no implied or inherent emergency powers
beyond that given him by the legislature, who, as elected officials, serve at the
a. Separation of Powers.
The trial court found serious separation of powers issues under Sections
27 and 28, the constitutional provisions that mandate that strict separation of
Commission ex rel. Prather v. Brown, 664 S.W.2d 907 (Ky. 1984). The trial
court stated,
The legislature has every right, and even the duty, to adopt
standards and rules to govern the Governor’s exercise of
emergency executive authority. But when the legislative role shifts
from oversight and policymaking to micromanagement of
administrative rules and orders there is a clash that implicates the
separation of powers provisions of sections 27 and 28 of the
Kentucky Constitution. See Legislative Research Commission v.
Brown, 664 S.W.2d 907 (Ky. 1984). The challenged legislation
here—HB1, SB 1 and SB 2—all raise serious separation of powers
issues.
18
Order Granting Temporary Injunction Under CR 65.04, No, 21-CI-00089
misplaced.
provisions that purported to give the General Assembly authority, through the
set forth in KRS Chapter 13A. Specifically, legislative committees may review
determinations that the regulations are deficient. KRS 13A.030. Prior to S.B.
commented on the change to the statutory language in S.B. 2 that deleted the
change the law. Jefferson Cnty. Bd. of Educ. v. Fell, 391 S.W.3d 713, 724 (Ky.
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statutory construction is discerning legislative intent, it is entirely
logical for the judiciary to see what else our General Assembly has
said on the particular topic underlying the controversy.
review of KRS Chapter 13A reveals that even though a legislative committee
may find that a regulation is “deficient,” the regulation at issue remains in the
regulations. The Governor’s final say over the disposition of any “deficient”
regulations, the 2021 legislation does not violate Sections 27 and 28, or this
court’s holding in L.R.C. v. Brown. If the trial court’s conclusion was based on
committee hearing. As we have noted time and again, so many times that we
need not provide citation, the General Assembly establishes the public policy of
the Commonwealth.
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b. Power to Call Special Sessions.
The Governor argues that the legislation at issue requires him to call the
legislature into session every thirty days in order for him to continue to
exercise his emergency powers. S.B. 1 §2(2)(a). In other words, the Governor
claims the General Assembly infringes on his exclusive authority to call it into
Since 1942, special sessions have been called 52 times.18 No doubt each
involved some matter that the then-Governor believed could not wait for the
governors over the past 130 years of the 1891 Constitution, is to do the hard
U.S. at 629 (Douglas, J., concurring) (stating “[t]he Congress, as well as the
work.19 Furthermore, the assertion that the Governor would be forced to call a
18 https://legislature.ky.gov/Law/Statutes/Pages/KrsExtraOrdList.aspx (last
21
circumstances, nothing prohibits the Governor and General Assembly from
These items noted, we do not believe this issue has been adequately
2021 legislation.
authority by placing his authority to suspend statutes under the veto power of
the Attorney General. Ky. Const. § 69; Barkley, 628 S.W.2d at 624. Again, we
disagree.
belongs to the General Assembly. Ky. Const. § 15. This section is especially
succinct and clear: “[n]o power to suspend laws shall be exercised unless by
the General Assembly or its authority.” In fact, the drafters of our Constitution
22
Fletcher, 163 S.W.3d at 872. From this, we conclude that the power to
consideration.
Under Section 15, the General Assembly might grant the Governor the power to
suspend statutes. Or, it properly might grant that power to the Attorney
General. See Barkley, 628 S.W.2d at 621 (stating “the officers named in
[Section] 91 have only such powers and duties as are assigned to them by
executive power.” Id. at 622. Given the importance of the power to suspend
laws, we see no valid reason why the General Assembly might not properly
supports his argument that by doing so, the General Assembly has
23
Id. (emphasis added).20 S.B. 1 § 4 constitutes a valid exercise of the General
d. Arbitrary Legislation
The trial court expressed that the 2021 legislation “presents questions as
to whether the thirty-day limitation period for Executive Orders and [emergency
regulations] are arbitrary under Section 2.” The Governor expands this
concept by arguing the bills are arbitrary, vague and unenforceable, asserting
the public’s due process rights. In our view, the Governor has no standing to
assert the public’s due process rights. See Worldwide Equip., Inc. v. Mullins, 11
S.W.3d 50, 60-61 (Ky. App. 1999) (holding that motor vehicle seller had no
vague, and violative of due process since it was not charged with violation of
charged).21
20 The Governor also cites L.R.C. v Brown in support of this argument. This
case did not address suspension of statutes, but the authority of the General
Assembly, through the L.R.C., to disapprove administrative regulations while it, the
General Assembly, was not in session. We therefore fail to perceive the applicability of
this case, unless it is for the proposition as to the executive powers and
responsibilities lying within the province of the Governor. 664 S.W.2d at 919. We
hold that Fletcher and our analysis of Sections 15 and 91 are more directly on point.
21 In Commonwealth ex rel. Beshear v. Commonwealth ex. rel. Bevin, 498 S.W.3d
355, 360-66 (Ky. 2016), we recognized that the Attorney General has standing as the
chief legal officer of the state to vindicate public rights. In the same case, we held that
three individual legislators did not have that same standing because they were not the
chief legal officer(s) for the public. Id. at 367. We similarly conclude as to the
Governor’s lack of standing in this case as to these claims.
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e. Special Legislation
violation of Sections 59 and 60. His argument is that these bills grant
Willis, 305 Ky. 201, 204-05, 203 S.W. 2d 5, 7 (1947). Any argument that the
Sheriff’s Department v. Woodall, 607 S.W.3d 557 (Ky. 2020). The legislature
did not identify or single out any particular person, business, school, locality or
entity to which the 2021 legislation would apply. Id. at 573. Instead, the
We similarly reject the Governor’s argument that Section 60,22 and our
The claim is that the 2021 legislation permits localities or any number of other
statutes are replete with many instances of localities, schools, businesses being
25
permitted to make choices that conform to local conditions or individual choice.
3. Balancing Equities
pandemic, its ongoing nature, and the good occasioned by the Governor’s
constitutional powers, juxtaposed with the 2021 legislation and the more
implied it was the sole method in dealing with the pandemic. In fact, we
expressly held that the General Assembly could limit the Governor’s
noted, as we have discussed, the Governor’s emergency powers derive from the
statutes enacted by the General Assembly, not from our Constitution and not
from his “inherent” powers. The trial court’s findings substituted its view of the
public interest for that expressed by the General Assembly. The fact that a
public will be harmed if the statute is not enforced. Boone Creek Props., 442
23 Additionally, we can take judicial notice that the Delta variant, and perhaps
others, are raising positivity rates throughout the nation and Kentucky.
26
S.W.3d at 40. Thus, the public interest strongly favors adherence to the 2021
legislation.
III. Conclusion
The trial court emphasized that “[t]he Governor has alleged irreparable
injury to his constitutional powers and made preliminary showing that the bills
impair the exercise of his constitutional duty.” As discussed, these findings are
law. As a result, we find that the trial court’s issuance of injunctive relief was
improper.
the Governor’s Complaint does not present a substantial legal question that
of its constitutionality, we conclude that the Franklin Circuit Court abused its
Circuit Court with instructions to dissolve the injunction. This case is reversed
and remanded to the Franklin Circuit Court for further proceedings consistent
with this Opinion. In the event certain sections of the 2021 legislation may be
ultimately found invalid, the likely remedy may be severability. KRS 446.090.
C.J., JOINS: I concur with the lead opinion’s conclusion that a blanket
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injunction essentially precluding enforcement of any of the 2021 legislation
should not have issued in this matter. The Attorney General insists this case
presents no justiciable controversy and, in my view, his point has legal merit
executive orders and the absence of any enforcement measures that collide
with the limitations in the 2021 legislation, we have (at least on the record
before us) currently no specific real-world dispute about the application of any
portion of H.B. 1, S.B. 1, S.B. 2 or H.J.R. 77. That said, the Governor has
seemingly relentless nature of the COVID-19 pandemic ensures that the issues
conflicting results from circuit courts across the Commonwealth. Last summer
prior to Beshear v. Acree, 615 S.W.3d 780 (Ky. 2020), we invoked Kentucky
merits of the trial court’s injunction. Simply put, the maelstrom will continue
absent some direction from this Court. As I read the lead opinion, we address
on the merits have been raised, not to rule definitively on all issues presented.
28
This point bears emphasis because the Attorney General has not briefed in this
Court, or in the trial court for that matter, the merits of the various
constitutional challenges but has stood on his position that the case presents
no justiciable controversy.
specific emergency powers and authority to the Governor in KRS Chapter 39A
and the legislature has the authority to restrict and expand those statutory
powers. Id. Many of the challenged provisions of the 2021 legislation are
lead opinion aptly notes Section 15 of the Kentucky Constitution allows for the
Consequently, the legislature can amend KRS 39A.180 to alter the manner in
directives of the executive branch or applicable guidance from the Center for
Disease Control. The Governor—and others for that matter—may question the
efficacy and wisdom of that patchwork approach but that is a policy decision
that our legislature can make by duly-passed statute and neither the executive
nor the judiciary can reject it outright on “best practices” grounds. In sum,
passing generally applicable laws that provide the framework for governmental
29
believe a substantial question on the merits was presented as to those parts of
the 2021 legislation that were within the legislature’s law-making authority.
That said, in Acree this Court did not conclude that all emergency
powers are lodged solely in the legislature. Emergency powers are not
provides the framework for the three branches and the exercise and separation
of their respective powers. Id. at 805. The executive branch is charged with
interpreting and applying the law. The legislature is not in year-round session
legislature has no power to call itself into session at any other time but the
observations and conclusion about the power and necessity of the executive
30
need to definitively label the powers necessary to steer the Commonwealth
between the two branches.” Id. at 809. Regrettably, recent events have
including the Cabinet for Health and Family Services and the Division of
function. Thus, during the 2020 and 2021 legislative sessions the General
and discontinuing others. The 2021 legislation extends the legislature’s reach
his emergency authority. The thirty-day limit operates as a “kill switch” that
legislature by rendering the executive branch powerless to act after thirty days,
forcing the call of a special legislative session. This type of special legislative
31
session trigger has no antecedent in Kentucky law to my knowledge and
constitutional framework? Can the legislature pass a law that de facto nullifies
the recall of the legislature into special session appears throughout the 2021
controversy exists, has not engaged on this or any other merits issues; the trial
court needs the benefit of legal analysis from both sides. The lead opinion
wisely recognizes that on remand the circuit court should address this issue
August 19, 2021. That number is considerably higher than the entire
Kentuckians live and work. The death toll does not even account for the
24 The 2021 Session passed H.B. 4 which will place on the 2022 general election
ballot a proposed amendment to the Kentucky Constitution allowing the President of
the Senate and the Speaker of the House to convene the legislature by Joint
Proclamation “for no more than twelve legislative days annually.” If Kentucky voters
approve, this amendment would put the imprimatur of our Constitution on the
convening of the General Assembly beyond the current constitutionally-authorized
annual sessions and the “extraordinary circumstances” special sessions called at the
discretion of the Governor under Section 80.
32
hundreds of thousands of citizens whose lives have been irrevocably changed
by the impact of the disease on their own lives, their families and their
disagreements citizens may have about how best to address the seemingly
limitless thorny issues raised by the pandemic, they are undoubtedly united in
their desire to see our Commonwealth travel as safely and quickly as possible
to the other side, to find some semblance of normal again. As a Justice, and
lay down their swords and work together cooperatively to finish this immensely
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COUNSEL FOR MOVANT, ATTORNEY GENERAL:
S. Chad Meredith
Matthew F. Kuhn
Brett R. Nolan
Office of the Attorney General
Amy D. Cubbage
S. Travis Mayo
Taylor Payne
Marc Farris
Laura C. Tipton
Office of the Governor
Wesley W. Duke
LeeAnne Applegate
Cabinet for Health and Family Services
David E. Fleenor
David E. Lycan
Gregory A. Woosley
34