andy beshear, plaintiffs v. memorandum in support of
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COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT
ELECTRONICALLY FILED CIVIL ACTION NO. 21-CI-00288
HOLLY JOHNSON, in her official capacity as Secretary of the Finance and Administration Cabinet & ANDY BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky PLAINTIFFS v. MEMORANDUM IN SUPPORT OF
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ALLISON BALL, in her official capacity as Kentucky State Treasurer DEFENDANT
* * * * * * * * * * * * * * * *
SUMMARY OF ARGUMENT
The Plaintiffs lack standing to bring the present case, and even if they did possess standing,
the issues raised in their Complaint are not ripe for determination. Further, the procedural posture
of the case is such that any decision issued on the merits would be an impermissible advisory
opinion, and would also necessarily violate the constitutional avoidance doctrine. Any decision on
the merits of the Complaint needs to await such time as when there are plaintiffs with standing,
presenting an actual contract, with a concrete, factual record for review.
Should this Honorable Court deem a ruling on the merits to be appropriate, the Plaintiffs
should not be afforded the relief sought in the Complaint. The procedure used by the General
Assembly to pass the legislation is constitutionally sound. Finally, the Plaintiffs cannot meet the
high burden necessary to show that Senate Bill 165 is facially unconstitutional, the process set
forth in the bill fully comports with the provisions of our Constitution related to separation of
powers.
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TABLE OF CONTENTS
SUMMARY OF ARGUMENT ...........................................................................................1 TABLE OF CONTENTS ...................................................................................................2
I. FACTUAL BACKGROUND .............................................................................................3
II. STANDARD OF REVIEW ...............................................................................................6
III. ARGUMENT
A. JUDICIAL PRINCIPLES OF CONSTITUTIONAL AVOIDANCE, STANDING, RIPENESS & THE PROHIBITION AGAINST ISSUANCE OF ADVISORY OPINIONS REQUIRE JUDGMENT BE ENTERED AGAINST THE PLAINTIFFS .................................................................7 1. RULING ON THE MERITS OF THE PLAINTIFFS CLAIM WOULD VIOLATE
THE CONSTITUTIONAL AVOIDANCE DOCTRINE ...............................................7 2. THE PLAINTIFFS LACK STANDING TO BRING CLAIMS REGARDING
THE PROCEDURE & SUBSTANCE OF SB 165 ....................................................11 a. Finance Secretary Johnson Lacks Standing .......................................12 b. Governor Beshear Lacks Standing.....................................................14
3. THE COMPLAINT IS NOT RIPE FOR ADJUDICATION ..........................................17 4. THE PLAINTIFFS SEEK AN ADVISORY OPINION ...............................................19
B. THE PROCEDURES UTILIZED BY THE GENERAL ASSEMBLY DID NOT VIOLATE THE
CONSTITUTION .....................................................................................................20
C. SB 165 DOES NOT VIOLATE THE GOVERNOR’S “SUPREME EXECUTIVE POWER” UNDER § 69 OF THE KENTUCKY CONSTITUTION ...................................................21
D. SB 165 DOES NOT LIMIT THE GOVERNOR’S ABILITY TO “FAITHFULLY EXECUTE”
THE LAWS OF THE COMMONWEALTH ....................................................................25
E. THE PLAINTIFFS CANNOT SUCCEED IN SHOWING THAT SB 165 VIOLATES THE SEPARATION OF POWERS PROVISIONS OF THE KENTUCKY CONSTITUTION ...........26
IV. CONCLUSION ...............................................................................................................27
EXHIBITS
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I. FACTUAL BACKGROUND
The factual record in this case is hardly in dispute as, due to the Plaintiffs’ rapid resort to
the court system, there is no factual record beyond the enactment of the legislation itself.1
A. GENERAL BACKGROUND OF BILL
Senate Bill 165 passed the Senate on March 4, 2021. After passing the Senate, SB 165 was
sent to the House of Representatives. After a first reading on March 12, 2021, the bill was sent to
the Local Government Committee where, on March 15, 2021, a Committee Substitute and Title
Amendment were approved. A true and accurate copy of SB 165, with the Committee Substitute
and Title Amendment is attached hereto as Exhibit A. The bill then received its second reading in
the House. On the same day, a Local Government Mandate Statement was prepared by LRC staff
and posted along with the Committee Substitute and Title Amendment. A true and accurate copy
of the Local Government Mandate Statement is attached hereto as Exhibit B. This document
reflects the anticipated fiscal impact of the amended SB 165 on local governments. On March 16,
2021, the bill received a third reading, and passed with the Committee Substitute and Title
Amendment. The same day, it was sent to the Senate for concurrence, and the Senate concurred.
A true and accurate copy of the vote history for SB 165 is attached hereto as Exhibit C.
On March 24, 2021, eight (8) days after the passage of the bill, the Governor vetoed SB
165. The Governor’s veto message raised issues largely duplicative of those raised in the present
suit. A true and accurate copy of the veto message is attached hereto as Exhibit D. On March 29,
2021, almost two (2) weeks after SB 165 passed the House and Senate, both chambers voted to
override the Governor’s veto.
1 The legislative history of SB 165 is available at https://apps.legislature.ky.gov/record/21rs/sb165.html (last visited May 10, 2021).
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B. OVERVIEW OF GOVERNMENT CONTRACT REVIEW COMMITTEE & SB 165
The Committee Substitute and Title Amendment introduced in the House Committee
added, inter alia, an amendment to KRS 45A.705, related to the Government Contract Review
Committee (“GCRC”). The GCRC reviews a wide range of personal service contracts and tax
incentive agreements. For example, in the months of December 2020, through February 2021,
contracts were reviewed for a wide range of entities, including: Attorney General; Auditor of
Public Accounts; Board of Accountancy; Council on Postsecondary Education; Eastern Kentucky
University; Kentucky Higher Education Student Loan Corporation (KHESLC); Kentucky Lottery
Corporation; Kentucky Retirement Systems; Legislative Research Commission; Northern
Kentucky University; University of Kentucky; University of Louisville; and, Western Kentucky
University.2
If after review, the GCRC “determines that the contract service or agreement, other than
an emergency contract approved by the secretary of the Finance and Administration Cabinet or his
or her designee, is not needed or inappropriate…the committee shall attach a written notation of
the reasons for its disapproval or objection…to the secretary of the Finance and Administration
Cabinet.” KRS 45A.705(5). Under current practice, when the GCRC returned its objection or
disapproval to the Finance Secretary, the Finance Secretary was given three options: (1) revise the
contract or agreement “to comply with the objections of the committee;” (2) cancel the contract or
agreement; or (3), decide that the contract or agreement should remain in effect as the secretary of
the Finance and Administration Cabinet (“Finance Secretary”). SB 165 operates to change the
2 Full minutes and meeting materials for the GCRC are available at https://apps.legislature.ky.gov/moreinfo/Contracts/homepage.html (last visited May 10, 2021).
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Finance Secretary’s options, leaving the first and second unchanged, and modifying the third to
read that the recommendations of the GCRC:
(c) Be appealed within ten (10) days to the State Treasurer, who shall make a final determination within ten (10) days of receipt of the appeal of whether the personal service contract, tax incentive agreement, or memorandum of agreement shall:
1. Be revised to comply with the objection of the committee; 2. Be canceled and, if applicable, payment allowed for services already
rendered under the contract or amendment; or 3. Remain effective as originally submitted
Exhibit A at pg. 6. Under SB 165 therefore, the Finance Secretary retains the power to amend or
cancel the contract or agreement. If the Finance Secretary does not desire to amend or cancel, the
Finance Secretary can provide the contract or agreement to the Treasurer. The Treasurer is then
permitted to determine whether to amend, cancel, or leave the contract or agreement as originally
presented. The Treasurer is not bound by the recommendation of the GCRC.
C. PLAINTIFFS BRING SUIT AGAINST THE TREASURER
On April 9, 2021, Finance Cabinet Secretary Holly M. Johnson, and Governor Andy
Beshear brought suit against Defendant Treasurer Allison Ball, seeking to prevent SB 165 from
going into effect. No contracts have been recommended for modification, revision, or rejection
by the GCRC, and no contracts have been appealed to the Treasurer under the new provisions of
45A.705(c). Per the agreement of the parties, the Treasurer now brings this Motion for Summary
Judgment, seeking a ruling from this Honorable Court that the Plaintiff’s suit should be dismissed.
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II. STANDARD OF REVIEW
The Plaintiffs have chosen not to wait until there was an actual controversy, by waiting for
a contract to be reviewed by GCRC, and subsequently appealed to the Treasurer for determination,
through the process set forth in the revisions to 45A.705(c). Rather, they have chosen to bring a
challenge that must be interpreted as a “facial challenge” to the constitutionality of SB 165.
There is a “strong presumption of constitutionality accorded legislative enactments.”
Delahanty v. Commonwealth ̧558 S.W.3d (Ky. App. 2018). For this Honorable Court to afford
the Plaintiffs the requested relief, it must find that the challenged statute is “unconstitutional in all
its applications.” Commonwealth v. Claycomb, 566 S.W.3d 202, 210 (Ky. 2018) (citations
omitted); Sabri v. United States, 541 U.S. 600 (2004). By design, this is a weighty standard to
meet. "It is a well-established principle that a facial challenge to a legislative Act is . . . the most
difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." Commonwealth v. Bredhold, 599
S.W.3d 409, 415-16 (Ky. 2020) (emphasis added) citing Harris v. Commonwealth, 338 S.W.3d
222, 229 (Ky. 2011) (internal citations omitted). In the Harris case, the Kentucky Supreme Court
rejected a facial challenge to a criminal statute, because it found that the statute operated in a
constitutional manner for a certain class of offenders, “[t]hus, the statute is constitutional under
that set of circumstances, and cannot withstand a facial constitutional challenge.” Harris, 338
S.W.3d at 229. The fact that the Plaintiffs could posit a set of circumstances where SB 165
operates in an unconstitutional manner is insufficient to meet the heavy burden required to succeed
in a facial challenge. United States v. Salerno, 481 U.S. 739, 745 (1987).
In order for summary judgment to be appropriate herein, the Plaintiffs must, therefore,
establish that under all circumstances, the provisions of SB 165 operate unconstitutionally.
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III. ARGUMENT
A. JUDICIAL PRINCIPLES OF CONSTITUTIONAL AVOIDANCE, STANDING, RIPENESS & THE PROHIBITION AGAINST ISSUANCE OF ADVISORY OPINIONS REQUIRE JUDGMENT BE ENTERED AGAINST THE PLAINTIFFS
The Plaintiffs are exceedingly eager to have this Court issue an opinion on issues of
paramount constitutional importance. This undue interest in speedily obtaining a ruling that would
go to the heart of the separation of powers, including the day-to-day functioning of the General
Assembly, ignores fundamental tenets of judicial review, and doctrines that have been established
to prevent the unnecessary and premature review of constitutional claims.
Specifically, the constitutional avoidance doctrine, the prohibition on advisory opinions,
as well as the requirements that plaintiffs have standing to present claims that are ripe for review,
all counsel strongly against the resolution of this matter on the merits. While these issues intersect
and intertwine at various junctures, particularly in their consistent admonition against unnecessary
review of major constitutional provisions, a separate discussion of each is warranted.
1. RULING ON THE MERITS OF THE PLAINTIFFS’ CLAIMS WOULD VIOLATE THE CONSTITUTIONAL AVOIDANCE DOCTRINE
Underlying the entirety of this discussion is the very real concern that any decision entered
herein would be a violation of the constitutional avoidance doctrine. The Plaintiffs have brought
a broad challenge, wholly unmoored from any set of operative facts, and totally devoid of even the
most skeletal record related to a single actual contract presented to the Government Contract
Review Committee (GCRC) and the Treasurer for consideration. When such a speculative claim
is brought, the resulting opinion must, by necessity, be written in broad strokes, filled with general
pronouncements regarding the nature of the Constitution and interactions between our three
branches of government.
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The Kentucky Supreme Court, as well as the United States Supreme Court, have strongly
condemned such speculative claims. Writing little more than a decade ago, the highest court in the
Commonwealth wrote: “We note that the long-standing practice of this Court is to refrain from
reaching constitutional issues when other, non-constitutional grounds can be relied upon.
Furthermore, we appreciate that a proper respect for the legislative branch obliges us to assume
the constitutionality of legislative enactment. Therefore, we must not reach a constitutional issue
if other grounds are sufficient to decide the case.” Baker v. Fletcher¸204 S.W. 3d 589, 597-98 (Ky.
2006); see also Pearson v. Callahan, 555 U.S. 223, 241 (2009) (“The Court will not pass upon a
constitutional question although properly presented by the record, if there is also present some
other ground upon which the case may be disposed of.”).
In 2012, the Court further examined the so-called “constitutional avoidance doctrine” by
citing a unanimous United States Supreme Court decision, opining: “[T]wo of the most
fundamental rules applied by the courts when considering constitutional challenges are ‘one, never
to anticipate a question of constitutional law in advance of the necessity of deciding it; the other,
never to formulate a rule of constitutional law broader than is required by the precise facts to which
it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to
follow them closely and carefully.” W.B. v. Commonwealth¸388 S.W.3d 108, 113 (Ky. 2012) citing
Liverpool, New York & Philadelphia S.S. Co. v. Commissioners, 113 U.S. 33, 39 (1885) (emphasis
added). Consideration of theoretical cases and writing unavoidably speculative opinions on the
general nature of government is “the antithesis of judicial restraint.” Sheryl Snyder & Robert
Ireland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal
and Historical Analysis of L.R.C. v. Brown¸73 Ky. L.J. 165, 190 (1984). In such situations, the
cases end up often “unnecessarily [opening] several new constitutional issues.” Id.
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Fortunately, this Honorable Court is not invariably doomed to having to broadly opine on
general issues of legislative procedure and the distribution of powers amongst Kentucky’s
constitutional officers. The Plaintiffs have, far too rapidly, brought a request to this Court to rule
upon an issue that, quite simply, is not an “issue” at this time. The Plaintiff’s Complaint is based
in only theory and generalizations on the law. Such pontifications are best relegated to the
classroom, not the courtroom. This Court deals in cases, based upon concrete facts and patterns,
not theorization regarding what “may” occur if a set of particular future speculations manifest into
tangible action.
The sort of facial challenges brought by the Plaintiffs are of particular constitutional
concern because they “often rest on speculation. As a consequence, they raise the risk of
‘premature interpretation of statutes on the basis of factually barebones records.’” Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008) citing Sabri v. United States,
541 U.S. 600, 609 (2004). Challenges such as the one brought by the Plaintiffs “threaten to short
circuit the democratic process by preventing laws embodying the will of the people from being
implemented.” Wash. State Grange, 552 U.S. at 609. In our Commonwealth, the will of the people
increased the majority-party’s representation in the Legislature following the 2020 election, and
that Legislature has acted on the will of the people. In the bill which has draw the Plaintiffs’ ire
herein, the Legislature has even overridden the Governor’s veto, after taking time to consider the
very objections that the Governor has raised herein.
To specifically apply the logic of the United States Supreme Court in the Washington State
Grange case, the 2021 General Assembly was enacting laws that embodied the will of the people
of Kentucky. The actions of the 2021 General Assembly were, therefore, largely attributed to the
will of the people acting through a Legislature that was convened with a mandate to respond to the
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Governor’s actions. To allow the Governor’s speculative complaint to override the will of the
people as embodied within the clear directive of the Legislature, before a single contract has been
reviewed, is to go outside the bounds of prudence and judicial restraint that are the foundational
benchmarks of the power of judicial review. Rewarding the Governor’s premature run to the court
system is to allow him to shirk the results of an election that did not go his way, and to obtain
through the legal system what he was unable to accomplish at either the ballot box or through the
use of his veto power.
The entirety of this case must be viewed through the lens of the constitutional avoidance
doctrine. Rather than seeking to reach the merits, it is the well-established and wise practice of
courts within our nation to seek to avoid such weighty issues unless absolutely necessary. See
Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one doctrine
more deeply rooted than any other in the process of constitutional adjudication, it is that we ought
not to pass on questions of constitutionality…unless such adjudication is unavoidable.”)
(emphasis added). Particularly in the case sub judice, the Plaintiffs’ claims strike at the heart of
the General Assembly’s management of its own affairs, as well as the distribution of powers within
the Executive Branch. As with the triumvirate of governmental powers cases decided in the 1980s,
a slight miswording in any decision on the constitutional powers can lead to unnecessary confusion
and can multiply future litigation. See Snyder & Ireland, supra, 73 Ky. L.J. 165, 190 (1984)
discussing Ex Parte Auditor of Public Accounts¸609 S.W.2d 682 (Ky. 1980); Brown v. Barkley,
628 S.W.2d 616 (Ky. 1982); Legislative Research Com. by Prater v. Brown, 664 S.W.2d 907 (Ky.
1984).
When faced with wholly speculative claims, such as those raised by the Plaintiffs, it
becomes more likely that any decision will be open to wide and broad interpretation on core
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constitutional issues, raising the specter of further litigation. This unfortunate result can be easily
avoided by refusing to rule on the merits of the claims, until the procedural posture, supported by
a record of material, operative facts, demands that such a ruling be made.
2. THE PLAINTIFFS LACK STANDING TO BRING CLAIMS RELATED TO THE PROCEDURE AND SUBSTANCE OF SB 165
Any party seeking redress in the courts of the Commonwealth must have standing to do so.
The separation of powers doctrine is a core consideration in the vigorous enforcement of the
standing doctrine. A leading constitutional scholar, noting the prescient words of the late-Justice
Antonin Scalia, has opined that “the standing doctrine promotes separation of powers by restricting
the ability of judicial review.” Chemerinsky, Federal Jurisdiction, p. 57 4th ed. (Aspen 2003)
citing Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of
Powers, 17 Suffolk L. Rev. 881 (1983) (“disregard [of the standing doctrine] will inevitably
produce – as it has during the past few decades – an overjudicialization of the processes of self-
governance.”).
Justice Scalia’s exhortation from nearly four decades ago appears more prophecy than
premonition. The fear of “overjudicialization” has fully manifested itself in Kentucky’s political
and legal landscape. Plaintiff Beshear’s term as Attorney General saw an unprecedented number
of suits from the Attorney General against the prior gubernatorial administration. Now that
Plaintiff Beshear has moved into the role of Governor, he has continued an unabated stream of
lawsuits against popular and widely-supported legislation.
Since neither of the Plaintiffs are imbued with any unique, constitutional standing that
gives them broad authority to challenge any law, they must meet the traditional standing
requirements as set forth in well-established precedent. In order for a party to bring suit in the
courts of the Commonwealth, “the plaintiff must have the requisite constitutional standing, which
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is defined by three requirements: (1) injury,3 (2) causation, and (3) redressability.” Overstreet v.
Mayberry, 603 S.W.3d 244, 252 (Ky. 2020). The Plaintiffs cannot show that they have suffered
actual, concrete injuries due to the passage of SB 165.
To find that the Plaintiffs have met the traditional standing argument in this case would be
to grant the Governor limitless standing to challenge statutes, a power that would, at first glance,
appear to completely overlap with the unique position of the Attorney General. The Governor
seems to assert that he has the authority to bring suit to question any statutory enactment that has
any impact on the Executive Branch and the distribution of statutory authority therein. This
misapprehends the fundamental role of the Governor as enforcing Kentucky’s laws.
The reasons that each of the Plaintiffs lacks standing will be examined in turn.
A. Finance Secretary Johnson Lacks Standing The Finance Secretary is not a constitutional officer, and has no inherent powers vested
within her position that are not granted by the Legislature. Indeed, the Legislature could choose to
abolish the Finance Cabinet and the position of Finance Secretary, in its current form, altogether.
It is a creation of statute, living by the pen of the legislature, and it could be abolished with the
same instrument. There is, therefore, no cognizable “injury” in the legislature altering the powers
granted to the Finance Secretary, because it is wholly within their prerogative to do so.
As noted in paragraphs 26, 47 and 48 of the Complaint, the Secretary is statutorily named
as the “chief financial officer” and “chief purchasing officer” of the Commonwealth. [Complaint,
3 The standing, ripeness and advisory opinion issues are closely related, illustrated in the Kentucky Supreme Court’s recent description of ripeness as “asking whether there is sufficient injury to meet Article III’s requirement of a case or controversy and, if so, whether the claim is sufficiently mature, and the issues sufficiently defined and concrete to permit effective decisionmaking by the court.” Commonwealth v. Bredhold, 599 S.W. 3d 409, 418-19 (Ky. 2020) citing Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995).
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¶¶ 26, 47-48]. Apparently, the Secretary’s role as “chief financial officer” and “chief purchasing
officer” are the grounds for standing. These terms are not to be found in the Constitution, for the
simple reason that they are statutory titles, the scope of duties for each are fully and wholly
dispensed and removed by the legislature as that body sees fit.
The Finance Secretary only has the power to sign contracts that was given by the
legislature. Standing requires that a “party plaintiff must have a real, direct, present, and substantial
right or interest in the subject matter of the controversy.” Winn v. First Bank of Irvington¸581
S.W.2d 21, 23 (Ky. App. 1978). The Finance Secretary has no right to relief in this case as the
Finance Secretary has no “substantial right or interest” in the duties that have been transferred.
The Legislature has chosen to modify, in a very limited way, a statutory duty that it placed in the
Finance Cabinet. To find standing for the Finance Secretary in this instance would be to provide
standing for every executive official who has had a duty transferred or altered by statute to come
to this Court requesting that the transferred duty be restored to them.
The Legislature could, if it chose to do so, transfer the specific duty of reviewing
recommendations of the GCRC to any number of other persons or offices. The Finance Cabinet
Secretary coming to this Honorable Court claiming that it was a violation of her “right to final
review of contracts” for the duty to be invested in another Executive Branch official is a clearly
fruitless venture. This is because the Finance Cabinet Secretary has no “real, direct, present, and
substantial right or interest” in the final review of all contracts that go before the GCRC.
The Finance Secretary, therefore, has no inherent, defensible, constitutional right to sign
off on contracts reviewed by the GCRC. As will be more fully discussed with the Governor’s
standing, infra, to the extent that the Finance Secretary claims the transfer of duties will lead to
“interference” with the completion of her duties, this argument is far too speculative and remote
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to constitute grounds for standing. Overstreet, supra, 603 S.W. 3d at 252. In short, the only
“injury” claimed by the Finance Secretary is the loss of a statutory power, one in which she has no
legally-defensible interest.
B. Governor Beshear Lacks Standing Like with the Finance Secretary, the Governor’s standing in this matter would need to be
premised on an actual, cognizable injury, as the Governor has no inherent power to bring a
declaratory action regarding the general permissibility of any statute.
An well-known case from the past several years serves as a good example of why the
Governor lacks standing to bring this action. As Attorney General, now-Plaintiff Beshear
promoted the power and role of the Attorney General as the executive tasked with the monitoring
and oversight of Kentucky’s statutes and constitution. Citing KRS 15.020, then-Attorney General
Beshear argued that “[T]he Attorney General, as the chief law officer of the Commonwealth, has
the standing to institute any action he believes is necessary to protect the public’s interest.”
Commonwealth’s Motion for Summary Judgment at p. 22, Commonwealth ex. rel. Beshear v.
Bevin, Franklin Circuit Court 16-CI-389 (April 26, 2016). In that case, the Supreme Court
ultimately found that the Attorney General has standing to bring suit regarding executive and
legislative actions. Commonwealth ex rel. Beshear v. Bevin, 498 S.W. 3d (Ky. 2016) “Because the
Attorney General is the chief law officer of the Commonwealth, he is uniquely suited to challenge
the legality and constitutionality of an executive or legislative action as a check on an allegedly
unauthorized exercise of power.” Id. at 365 (emphasis added). As a contrast, the Kentucky
Supreme Court specifically noted in the aforementioned case that individual legislators did not
have standing to challenge particular actions of the Governor, specifically noting that the
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legislators “unlike the Attorney General…do not have the role of chief legal officer for the public.”
Id. at 367.
Per inherent powers, statutes and precedent, the Attorney General is the executive official
within the Commonwealth whom our Constitution, legislature and courts have vested with the
generalized power to challenge statutes that are not in conformity with Kentucky’s law and
constitution. Pursuant to statute:
The Attorney General is the chief law officer of the Commonwealth of Kentucky and all of its departments, commissions, agencies, and political subdivisions…and shall also commence all actions or enter his appearance in all cases, hearings, and proceedings in and before all other courts, tribunals, or commissions in or out of the state, and attend to all litigation and legal business in or out of the state required of him by law, or in which the Commonwealth has an interest, and any litigation or legal business that any state officer, department, commission, or agency may have in connection with, or growing out of, his or its official duties, except where it is made the duty of the Commonwealth’s attorney or county attorney to represent the Commonwealth.
KRS 15.020 (emphasis added). Inherent constitutional powers aside, the express language of KRS
15.020 deposits the role of chief law officer squarely within the Attorney General’s office, except
when a Commonwealth’s attorney or county attorney is given standing on behalf of the
Commonwealth.
In contrast, the Commonwealth’s highest court has, in the past, referred to the Governor as
the “chief civil officer” of the Commonwealth. Franks v. Smith¸134 S.W. 484, 487 (Ky. 1911). It
is noteworthy that nowhere in KRS 15.020 is there any mention of the Governor being given a
general grant of authority to pursue perceived constitutional violations. The reason is simple: there
is no constitutional authority for the Governor to bring generalized suits regarding the
constitutionality of statutes, and the General Assembly has not seen fit to imbue the office with
the statutory power to do so. Brown v. Barkley, 628 S.W. 2d 616, 621 (Ky. 1982) (“to the extent
that the Governor has any implied or inherent powers in addition to those the Constitution
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expressly gives him, it seems clear that such unexpressed executive power is subservient to the
overriding authority of the legislature.”).
Since the Governor does not have a general right to pursue perceived constitutional flaws
in any statute enacted by the Legislature, he must have traditional, particularized standing in
connection with SB 165. The Governor has no cognizable, legal right to maintain any particular
duty that is not given to him by a specific provision of the Kentucky Constitution. “The Office of
Governor exists to faithfully execute the laws enacted by the General Assembly. Thus, the
executive branch is an agent of the law.” Synder & Ireland, supra at 204. The law, as modified
by SB 165, now provides that the final review of contracts that GCRC has called into question will
be made by the Treasurer rather than the Finance Secretary. This represents the Legislature’s
decision to disburse power amongst the various executive branch officers, which “provide
convenient receptacles for the diffusion of executive power.” Brown, 628 S.W. 2d at 622.
The Governor’s role is to execute the laws of the Commonwealth. The Governor has no
cognizable interest in the particular manner in which the statute sub judice operates or was enacted.
The Complaint throws about generalized claims about separation of powers and executive
supremacy, but cannot articulate an actual, legally cognizable injury, other than the institutional
pride of the Governor’s Office in not having anyone potentially question any actions in which the
Governor may choose to take an interest. To find that the wounded ego of the Governor is sufficient
to establish legal standing would be to stretch the doctrine far beyond its historical bounds, and to
welcome a torrent of litigation from any office holder whose perceived domain has been
encroached upon by legislative enactment.
Again, this interaction between the powers of the legislative and executive branches is
unavoidably at issue in determining the merits of this case. The United States Supreme Court has
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wisely counseled that “[O]ur standing inquiry has been especially rigorous when reaching the
merits of the dispute would force us to decide whether an action taken by one of the other two
branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20
(1997). Both the Governor and the Finance Secretary lack standing to bring this action, and it
should be summarily resolved on that issue. To fail to do so would venture into dangerous
constitutional waters regarding the precise mechanisms of legislative enactments, and the
separation of powers between the Governor, the Legislature, and the State Treasurer. Such
weighty considerations should not be taken up lightly, and indeed they have been rarely handled
in detail by the Kentucky Supreme Court for precisely the concerns raised herein.
3. THE COMPLAINT IS NOT RIPE FOR ADJUDICATION
To the extent that the Plaintiffs can succeed in showing they have standing to bring this
action, an analytically distinct doctrine that prevents this matter from being heard on the merits is
the “ripeness” requirement. The Kentucky Supreme Court has noted the basic rationale underlying
this doctrine is one of preventing “the courts, through the avoidance of premature adjudication,
from entangling themselves in abstract disagreements.” W.B. v. Commonwealth ̧388 S.W. 108,
114 (Ky. 2012) citing Abbott Labs v. Gardner¸387 U.S. 136 (1967) abrogated on other grounds
by Califano v. Sanders¸430 U.S. 99 (1977).
“Ripeness accordingly prevents courts from interfering with legislative enactments until it
is necessary to do so, and thus enhances the quality of judicial decision-making by ensuring that
cases present courts an adequate record to permit effective review and decision-making.” W.B. v.
Commonwealth ̧388 S.W. at 114. Facts provide needed precision and clarity to a legal dispute,
permitting the courts to address constitutional issues with a “well-developed…record by which we
may understand the actual, as opposed to the hypothetical and abstract, application of the process
under review.” Id. Indeed, the ripeness requirement is such a strong tool of judicial restraint, that
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the court may raise the issue on its own motion. Id. citing Local 36 Intern. Ass’n of Firefighters v.
Rubin¸999 A.2D 891, 896 (D.C. 2010).
A review of the Government Contract Review Committee minutes for recent months
reflects that very few contracts are ultimately objected to by the committee. Out of thousands of
contracts reviewed by the GCRC, only a handful are ever the subject of any dispute. In addition,
the nature of the entities and officers whose contracts are reviewed likewise militates against the
idea that the present matter is ripe for adjudication. In recent months, the GCRC has reviewed
contracts for all constitutional officers, the Legislative Research Commission, the Kentucky
Lottery Board, and all the state universities, among others. The constitutional implications of the
Treasurer utilizing the SB 165 process to review a contract involving the Legislative Research
Commission, the Auditor or even the Treasury itself, present a far different set of facts, and
possibly implicate several different issues, far different from those raised in the present Complaint.
A stark example of the seriousness with which the Kentucky Courts apply the ripeness
doctrine can be seen in the recent decision of Commonwealth v. Bredhold, 599 S.W. 3d 409 (Ky.
2020). In that case, the Kentucky Supreme Court found that several individuals, who were all
facing prosecutions where the death penalty could be applied, lacked standing, and could not show
that their claims were ripe, where they had not actually been convicted and sentenced to death.
The Bredhold Court found that these claims would be ripe for adjudication “only when, if ever,
one or more of these Appellees is convicted and a jury recommends the death penalty.” Id. at 423.
Until that time, the court found, the matter would not be ripe for adjudication, and the court would
be operating without a fully developed record.
Likewise, in the present case, the Plaintiffs act as if they have already suffered harm, and
that the record is sufficiently established to rule on such weighty constitutional issues such as the
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scope of executive power, separation of powers, and the constitutional minutiae of the legislative
process. Such issues should not be taken up lightly. In short, unless and until a contract is actually
subjected to the process set forth in SB 165, this matter is not ripe for adjudication.
4. THE PLAINTIFFS SEEK AN ADVISORY OPINION
The final “procedural” or “prudential” bar to hearing this case is the prohibition on advisory
opinions contained within the Kentucky Constitution. This requirement is closely related to the
“case or controversy” requirement contained within Article III of the United States Constitution.
Our courts were not established to issue theoretical opinions, but to resolve actual, concrete
legal disputes between interested parties. The Kentucky Supreme Court has held that courts should
not take actions “unless the alleged controverted questions are justiciable ones, and which do not
include abstract legal questions designed merely to furnish information to the inquirer.”
Commonwealth v. Crow, 92 S.W.2d 330 (Ky. 1936). Kentucky’s court system is no different, and
our Constitution limits access to the courts to those who have suffered an “injury,” Ky. Const. §
14, and also limits the jurisdiction of the circuit courts to “justiciable causes” Ky. Const. § 112(5).
In the context of declaratory judgments, such as that sought by the Plaintiffs herein, the Kentucky
Supreme Court has affirmed that “declaratory judgment statutes are available to resolve ‘only
rights and duties about which there is a present actual controversy presented by adversary
parties.’” Appalachian Racing, LLC v. Family Trust Found. Of Ky., Inc., 423 S.W.3d 726, 734
(Ky. 2014) citing Black v. Elkhorn Coal Corp., 26 S.W.2d 481, 483 (Ky. 1930) (emphasis added).
The changes to KRS 45A.705 anticipated by SB 165 have not gone into effect, and the
Plaintiffs have not even remotely suffered any harm. The Plaintiffs seem merely to seek an
advisory opinion out of generalized fears that they could, in the future, have some negative
consequence as a result of the change in process. This is a remote fear, based on theoretical
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concerns about the future, and is a far cry from a “justiciable cause” that can be brought before
this court for adjudication.
B. THE PROCEDURES UTILIZED BY THE GENERAL ASSEMBLY DID NOT VIOLATE THE CONSTITUTION
The Plaintiffs’ Complaint maintains that the passage of SB 165 violated provisions of the
Kentucky Constitution requiring three readings of bills, as well as the “single-topic” and
“germaneness” requirements of Section 51. Both of these contentions are without merit and,
moreover, threaten to upend years of legislative and executive reliance upon the processes set forth
by Kentucky’s legislature.
The provisions of our Constitution related to multiple readings were “to ensure that every
legislator had a fair opportunity to fully consider each piece of legislation that would be brought
to a vote.” Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 93 (Ky. 2018). In the present
case, the changes to SB 165 in committee occurred prior to the day on which the bill received its
final reading, this included a title amendment. The Complaint makes much of the specific order
in which the chamber choose to read and vote upon each particular item, but this “error” is
elevating form over substance. Due to the availability of electronic records, including items such
as the Local Government Mandate Statement, individual legislators have instant access to bill text,
analysis of the bills, as well as the amendments, committee substitutes, and title amendments.
It is almost unfathomable to consider how many existing laws would be subject to
constitutional infirmity if the Plaintiffs’ reading of Sections 46 and 51 were to be accepted. The
procedures utilized for SB 165 have been widely known and practiced for years, and the various
“defects” pointed out by the Plaintiffs would represent an unnecessary and dangerous incursion of
the judicial branch into the technical, inner workings of the General Assembly. As the Kentucky
Supreme Court has noted:
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Legislative or executive construction of constitutional provisions adopted and acted on with the acquiescence of the people for many years is entitled to great weight with the courts and where not manifestly erroneous, it will not be disturbed. The injustice that would inevitably result by the disturbing of such constructions after a long period of acquiescence therein during which many rights will necessarily have been acquired, is a very strong argument against it.
Kraus v. Kentucky State Senate¸872 S.W.2d 433, 438 (Ky. 1993). In the present case, the members of the General Assembly had ample opportunity to review
the Committee Substitute and Title Amendment prior to voting on the bill. In contrast to the case
of Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 93 (Ky. 2018), the legislators also had
a period of nearly two weeks from the bill’s passage to review the bill, and the Governor’s veto,
before coming back to vote on whether to override the veto. To the extent that any concerns exist
regarding whether the members had sufficient opportunity to consider the bill, it should be noted
that several members changed their votes by the time that they considered the Governor’s veto.
Quite simply, to accept the Plaintiffs’ arguments regarding the three-reading and “single-
topic” requirements would be to venture into waters that could have massive, unforeseeable
consequences for any number of existing laws. As discussed supra, the constitutional avoidance
doctrine, among other prudential concerns, strongly cautions against ruling on such an issue that
goes to the core of the constitutional powers and processes of the General Assembly.
C. SB 165 DOES NOT VIOLATE THE GOVERNOR’S “SUPREME EXECUTIVE POWER” UNDER
SECTION 69 OF THE KENTUCKY CONSTITUTION
The Plaintiffs argue that the very limited scenario in which the Treasurer is provided
authority under SB 165 is a violation of Section 69 of the Kentucky Constitution, which vests
“supreme executive power” with the Governor. The Plaintiffs’ reading of the Governor’s powers
under Section 69 is far too broad and would represent a major increase in the Governor’s powers
beyond what any court has previously provided.
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In the case of Brown v. Barkley, the Kentucky Supreme Court enunciated the “powers and
duties expressly conferred upon” the Governor as follows:
1. He is the commander-in-chief of the military forces and affairs of the state. Const. Sec. 75.
2. He may fill vacancies in office except as otherwise provided by the Constitution. Const. Sec. 76.
3. He may remit fines and forfeitures and grant reprieves and pardons. Const. Sec. 77.
4. 4. He may require written information from the officers of the Executive Department upon any subject relating to the duties of [**13] their respective offices. Const. Sec. 78.
5. He shall from time to time report the state of the Commonwealth to the General Assembly and recommend to it such measures as he deems expedient. Const. Sec. 79.
6. He may call the General Assembly into special session and may adjourn the General Assembly for a period not exceeding four months if its two Houses cannot agree upon an adjournment. Const. Sec. 80.
7. "He shall take care that the laws be faithfully executed." Const. Sec. 81.
Brown v. Barkley, 628 S.W.2d 616, 621 (Ky. 1982). The Brown Court noted that “if it be postulated
that the chief executive does possess implied or ‘inherent’ powers, they would be subordinate to
statute.” Id. at 623. Mindful that the Plaintiffs have brought a facial challenge to SB 165, for this
Honorable Court to afford the Plaintiffs the requested relief, it must find that the challenged statute
is “unconstitutional in all its applications.” Commonwealth v. Claycomb, 566 S.W.3d 202, 210
(Ky. 2018).
The case of Royster v. Brock, 79 S.W.2d 707 (Ky. 1935), is particularly instructive as to
the limits imposed upon the Governor’s authority, and how narrowly the Governor’s “supreme
executive power” is interpreted. In that case, Governor Ruby Laffoon was absent from the state
on February 6, 1935, and Lieutenant Governor A.B. Chandler, acting as governor, issued a
proclamation convening the General Assembly in extraordinary session to begin on February 8.
Governor Laffoon returned to the state on the morning of February 7, and issued a proclamation
revoking Chandler’s call of an extraordinary session, and seeking to “enjoin and direct” the
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members of the General Assembly from convening. On February 9, Senator Hiram Brock brought
an action against the Clerk of the Senate, Byron Royster, to require the Clerk to issue payment for
Sen. Brock’s mileage to Frankfort for the called session.
The Commonwealth’s highest court ruled that Governor Laffoon lacked the power to
“rescind” Chandler’s opportunistic call of the extraordinary session.
It is appellants' contention that the right and power to revoke a proclamation convening the General Assembly rests with the Governor until the General Assembly meets and organizes for business. The correct determination of the question requires an examination of the powers of the Governor, their source and extent. The office of Governor is unknown to the common law. It is the title universally applied to the head of the executive department of a state, but in every instance the office is created by the State Constitution. Section 69 of our Constitution creates the office of Governor and vests in him the supreme executive powers of the commonwealth. He has only such powers as the Constitution and Statutes, enacted pursuant thereto, vest in him, and those powers must be exercised in the manner and within the limitations therein prescribed.
Royster, 79 S.W.2d at 708-709. The Royster Court closely examined the exact parameters of
Section 80 of the Kentucky Constitution, and noted that the Governor is granted the express power
to convene an extraordinary session. The court refused to support Governor Laffoon’s reading of
Section 80, which would have permitted him to revoke the call prior to the General Assembly
actual going into session. The Court noted that the particular power to call the Legislature into
extraordinary session “has been intrusted [sic] to the Governor by the Constitution, and that
instrument measures the extent and limit of his power and authority.” Id. at 711. Therefore, since
the Constitution did not give him a general power of revoking a proclamation to enter into
extraordinary session, the Governor did not have such a power.
Royster is one of many examples where Kentucky courts have narrowly construed the
Governor’s powers under the Constitution. The Plaintiffs’ arguments herein would run directly
contrary to the entire jurisprudential history of interpretation of our Constitution. The Governor
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desires to turn Section 69 into an overriding provision, which makes any “executive” function the
constitutionally dedicated sole province of the Governor’s office. This is a wildly expansive view
that finds no favor in the constitution or case law. Indeed, to accept the Plaintiffs’ position would
be to find that the implied or inherent power to have final say over all contracts involving any
entities that are subject to the Government Contract Review Committee is a “supreme executive
power” which cannot be infringed upon. At the same time, one would have to note the extremely
narrow reading of express powers, such as the one set forth in Royster. The incongruity of such a
narrow reading of an express power, and a broad reading of an implied power is both illogical and
dangerous, as it sets precedent for the Governor to achieve through implication what was denied
to him in the text of the Constitution.
Our Constitution and precedent firmly establish that the General Assembly has the power
to disburse executive powers that are not constitutionally dedicated to the Governor to the other
constitutional officers. For example, the Treasury runs the Unclaimed Property Division, which
consists of hundreds of millions of dollars of funds which are kept with the Treasury for safe-
keeping, and returned to claimants via a process that is run through the Treasury itself. See KRS
393A.010 et seq. The deposit, maintenance and payment of these funds is surely an “executive”
function, and it occurs wholly outside the control and purview of the Governor. To accept the
Plaintiffs’ argument herein regarding the overwhelming scope of the Governor’s Section 69
powers would be to require all other constitutional officers to submit every “executive” function
to the Governor for final approval, if the Governor desires that they do so, and any legislation to
the contrary would be infringing upon his “supreme authority.” This would be, to say the least,
both an unwarranted and unprecedented expansion of the Governor’s powers.
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D. SB 165 DOES NOT LIMIT THE GOVERNOR’S ABILITY TO “FAITHFULLY EXECUTE” THE LAWS OF THE COMMONWEALTH
The Plaintiff’s Fifth Claim is based upon a provision requiring that the Governor faithfully
execute the laws of the Commonwealth. Contrary to the Plaintiffs’ assertion, SB 165 providing
that the Treasurer has the ability to review certain contracts, in limited instances, does not prevent
the Governor from faithfully executing the laws, any more than the duties of the Auditor and the
Attorney General prevent the Governor from complying with his Section 81 obligations.
The logic promoted by the Plaintiffs under this argument would necessitate a finding that
any other state official, of any kind, who is given any type of oversight or ability to review any
Executive Branch actions is unconstitutionally impeding the Governor’s ability to “faithfully
execute” the laws. Indeed, the logic would suggest that any court attempting to review
gubernatorial action is violating Section 81 by the very action of forcing the Governor to come to
court to explain his actions. The inconvenience of litigation is, no doubt an “interference” as that
term is utilized by the Plaintiffs.
In this instance, the Governor is failing to faithfully execute the provisions of SB 165. The
Governor’s duty is to execute the law as written. Our Commonwealth is a democracy, and the
ability of democratically-elected officials to question gubernatorial pronouncements is a
fundamental aspect of our laws and constitution. To accept the Governor’s argument that
questioning his actions is impermissible is to equate Section 81 with an authorization of
authoritarianism, wherein the citizens of the Commonwealth are to rely upon the unchecked,
benevolent goodwill of their leader as he “faithfully executes” what he sees fit.
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E. THE PLAINTIFFS CANNOT SUCCEED IN SHOWING THAT SB 165 VIOLATES THE SEPARATION OF POWERS PROVISIONS OF THE KENTUCKY CONSTITUTION
Finally, the Plaintiffs’ claim that SB 165 violates Kentucky’s separation of powers doctrine
must invariably fail, particularly as the Plaintiffs have brought a facial challenge to SB 165. “There
is a strong presumption of constitutionality which is afforded to any enactment of the General
Assembly.” Jefferson Co. Police Merit Bd. v. Bilyeu, 634 S.W.2d 414 (Ky. 1982).
The General Assembly has the power to grant, deny, or transfer powers away from the
Governor, except for those very few issues that are constitutionally mandated to remain within his
purview. For example, the General Assembly has the power to decide the manner in which
contracts are to be entered. It is not an impermissible infringement upon the Governor to mandate
the manner and method of contracting. Commonwealth v. Whitworth¸74 S.W.3d 695, 700 (Ky.
2002) (“Legally enforceable contracts with the state are to be in writing.”). Likewise, the Supreme
Court has found that Kentucky’s separation of powers doctrine was not violated by the power to
consent to gubernatorial appointees. Kraus v. Kentucky State Senate¸872 S.W.2d 433 (Ky. 1993).
SB 165 does not violate the separation of powers doctrine, as it does not provide for the
GCRC to infringe upon executive power. The GCRC has not taken upon itself an executive
function, but remains in purely an advisory role; the Treasurer may ultimately choose to agree or
disagree with the recommendation of the GCRC, as the Finance Secretary may do under the current
version of 45A.705. Any argument to the contrary is a conflation of the earlier arguments that the
Treasurer’s role violates the “supreme executive power” of the Governor. In short, the GCRC’s
role is not changed by SB 165, and there is no violation by the GCRC continuing to serve in an
advisory capacity.
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IV. CONCLUSION
WHEREFORE, the Defendant prays for the following relief:
1. That Summary Judgment be entered against the Plaintiffs, with no relief granted on their
Complaint;
2. Any additional relief to which the Defendant may be entitled.
Respectfully submitted this the 10th day of May, 2021. /s/ Noah R. Friend Noah R. Friend General Counsel Allison Ball, Kentucky State Treasurer 1050 U.S. Hwy 127 S, Suite 100 Frankfort, KY 40601 Phone. (502) 564-4722 Fax. (502) 564-6545 noah.friend@ky.gov COUNSEL FOR DEFENDANT ALLISON BALL, KENTUCKY STATE TREASURER
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CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing was electronically filed this
the 10th day of May, 2021. I further certify that the following parties were served electronically
or via first-class mail, postage prepaid:
Hon. Amy Cubbage Hon. Marc Farris Hon. Travis Mayo Hon. Taylor Payne Hon. Laura Tipton Office of the Governor 700 Capitol Ave, Suite 118 Frankfort, KY 40601 Counsel for Plaintiff Andy Beshear Hon. William Long, Jr. Finance & Administration Cabinet 702 Capitol Ave, Suite 392 Frankfort, KY 40601 Counsel for Plaintiff Holly Johnson
/s/ Noah R. Friend Noah R. Friend
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