commonwealth of kentucky franklin circuit court … · 10710 kings crown dr. prospect, kentucky...

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COMMONWEALTH OF KENTUCKY

FRANKLIN CIRCUIT COURT

DIVISION ____

CIVIL ACTION NO. ____________

GARY HOUCHENS

818 Wakefield Street

Bowling Green, Kentucky 42103

MILTON SEYMORE

2906 Aspendale Court

Louisville, Kentucky 40241

BEN CUNDIFF

5601 Cerulean Road

Cadiz, Kentucky 42211

TRACEY CUSICK

743 Iron Liege Drive

Union, Kentucky 41091

KATHY GORNIK

4158 Georgetown Road

Lexington, Kentucky 40511

HAL HEINER

15101 Piercy Mill Road

Louisville, Kentucky 40245

ALESA JOHNSON

410 N. Cave Springs Road

Somerset, Kentucky 42503

JOE PAPALIA

17696 Cabin Crossing Court

Fisherville, Kentucky 40023

LAURA TIMBERLAKE

529 Sunset Drive

Ashland, Kentucky 41101

RICHARD GIMMEL

10710 Kings Crown Dr.

Prospect, Kentucky 40059

PLAINTIFFS

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v.

ANDY BESHEAR, in his official capacity DEFENDANT

as Governor of the Commonwealth of Kentucky

SERVE: Office of the Attorney General

The Capitol

700 Capitol Avenue

Frankfort, Kentucky 40601-3449

and

JACQUELINE COLEMAN, in her official capacity DEFENDANT

as Secretary of the Education and Workforce Development Cabinet


The Capitol

700 Capitol Avenue


VERIFIED COMPLAINT FOR DECLARATION

OF RIGHTS AND FOR INJUNCTIVE RELIEF

Come now the Plaintiffs, Gary Houchens, Milton Seymore, Ben Cundiff, Tracey Cusick,

Kathy Gornik, Hal Heiner, Alesa Johnson, Joe Papalia, Laura Timberlake and Richard Gimmel

(hereinafter “Plaintiffs” or “Board Members”), by and through counsel, and bring this action for

a permanent injunction and declaration of rights against the Defendants, Andy Beshear in his

official capacity as governor of the Commonwealth of Kentucky and Jacqueline Coleman in her

official capacity as Secretary of the Education and Workforce Development Cabinet.

INTRODUCTION

Plaintiffs are current members of the Kentucky Board of Education (the “Board”) who

have volunteered hundreds of hours of their time during the last few years to help ensure the

future of the Commonwealth’s education system. Some have their own businesses. Some are

educators. Some are retired. They simply want what is best for Kentucky’s children and the

state’s future. They would like nothing better than to work with newly elected Governor Andy

Beshear toward that goal.

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But within hours of taking the oath of office as the Commonwealth of Kentucky’s 63rd

top public executive, Governor Beshear violated Kentucky law by issuing Executive Order 2019-

002 (Hereinafter, “Executive Order 2019-002”) that attempts to blanketly disband the entire

Board and replace the members with 11 new appointees. See Executive Order 2019-002 attached

as Exhibit A.

The Executive Order violates Kentucky law because the Governor failed to follow strict

statutory procedure and, instead, uses his political position to skirt the same laws he publicly

sought to uphold during his four-year tenure as Kentucky Attorney General. Simply put, the

Governor has attempted to make good on promises he made during his campaign for Governor

that he knew, or at least should have known, were legally impossible.

His campaign promises were prohibited by law because the members of the Board of

Education can only be fired “for cause” as required by two clear Kentucky statutes. KRS

159.029; KRS 63.080. Governor Beshear cannot meet this requirement; therefore, his actions are

illegal.

As mandated by Kentucky law, the Board develops and adopts the regulations that

govern Kentucky's 172 public school districts and the actions of the Kentucky Department of

Education. The Kentucky Department of Education underwent a major overhaul in 1990 when

the state legislature adopted the Kentucky Education Reform Act of 1990 (KERA) after the

Kentucky Supreme Court ruled in Rose v. Council for Better Education that the “entire system”

of common schools in the Commonwealth was unconstitutional. One purpose of KERA was to

provide stability and consistency at the state level by adopting an 11-member governing board

that exemplified the geographic and ethnic diversity of the state and could not be used as a

political tool capable of being changed on a whim by a newly-appointed chief executive. To

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ensure this, the Kentucky General Assembly required the political appointments of all 11

members to occur on staggered terms. Only after two years does a newly appointed governor

have the opportunity to appoint a majority of the Board Members.

Four of those current terms are set to expire in April 2020, and the remaining seven are

set to expire in April 2022. The current members were lawfully appointed by former Governor

Matthew Bevin according to this staggered plan dictated by the General Assembly KRS 159.029.

Instead of waiting for those terms to expire naturally as did Governor Bevin, Governor

Beshear issued Executive Order 2019-002 terminating every one of the members’ terms,

effective immediately. Executive Order 2019-002 is illegal, clearly falling outside the authority

delegated to the Governor by the Legislature in KRS 12.028, and the Plaintiff members of the

Board respectfully request that the Court:

A. Declare Executive Order 2019-002 of Governor Beshear illegal;

B. Permanently enjoin the Defendants from enforcing Executive Order 2019-002

related to the Kentucky Board of Education.

NATURE OF ACTION

1. This Verified Complaint for a Declaration of Rights and Permanent Injunction is

governed by the Kentucky Declaratory Judgment Act, KRS 418.010, et seq., CR 57, and CR 65.

2. KRS 418.040 provides this court with authority to “make a binding declaration of

rights, whether or not consequential relief is or could be asked” when a controversy exists. An

actual and justiciable controversy regarding violations of the Kentucky Constitution and state

laws clearly exists in this action.

3. CR 65 permits this court, in a final judgment, to issue a permanent injunction

which may restrict or mandatorily direct the doing of an act.

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4. Plaintiffs request an expedited review pursuant to KRS 418.050 and CR 57. The

Governor’s executive order has caused considerable confusion regarding who shall properly sit

on the Kentucky Board of Education. Time is of the essence, and this justiciable controversy

presents an immediate concern that must be promptly addressed to permit the board to perform

its statutory functions.

5. This is an action brought to declare that Governor Beshear’s attempts to seize

control of the Kentucky Board of Education via Executive Order 2019-002 under the guise of a

“reorganization” are null, void, unconstitutional, and of no effect.

6. This is also an action to enjoin Governor Beshear, Secretary Coleman, and all

their agents, attorneys and any other persons in active concert or participation with them, from

implementing and enforcing Executive Order 2019-002 and attempting to prevent or interfere

with the duly appointed board’s service.

7. This is also an action to enjoin the purported abolishment and re-creation of the

Board as set forth in Executive Order 2019-002, until this Court determines whether Governor

Beshear has that power under the Kentucky Constitution and Kentucky statutes.

PARTIES

8. Plaintiffs are duly appointed members of the Kentucky Department of Education.

Each member was appointed by former Governor Matthew Bevin.

9. Plaintiff Gary Houchens was re-appointed to the Board on April 16, 2018. A

professor at Western Kentucky University, he teaches graduate courses in educational

administration, advises graduate students, maintains an active research agenda, and chairs and

serves on students' doctoral advisory committees. Previously, he served as a principal, assistant

principal and middle school social studies teacher. Houchens holds a doctorate degree in

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educational leadership from the University of Louisville, a master's degree in teaching from

Oakland City University, and a master's degree in history and bachelor's degree in philosophy

and religion from Western Kentucky University. His term is due to expire on April 14, 2022. He

represents Supreme Court District 2.

10. Plaintiff Milton Seymore was appointed to the Board on May 25, 2016. A retiree

of Ford Motor Company and chair of the Jefferson County Judicial Resource Center, Seymore

serves as the Board’s Vice Chair. His term is due to expire on April 14, 2020. He is an At-large

Member of the Board.

11. Plaintiff Ben Cundiff was re-appointed to the Board on April 16, 2018. A

chemical engineer and attorney by trade, Cundiff serves on many community boards in Cadiz,

where he lives with his family. His term is due to expire on April 14, 2022. He represents

Supreme Court District 1.

12. Plaintiff Tracey Cusick was appointed to the Board on April 16, 2018. A resident

of Union, she is engaged in many community and education organizations. Her term is due to

expire on April 14, 2022. She represents Supreme Court District 6.

13. Plaintiff Richard Gimmel was appointed to the Board on May 25, 2016. As

Chairman of Atlas Machine and Supply in Louisville, Gimmel has been active in mentoring

inner-city students and helping them to gain workforce training. His term is due to expire on

April 14, 2020. He is an At-large Member.

14. Plaintiff Kathy Gornik was appointed to the Board on April 16, 2018. Retired co-

founder and president of Thiel Audio, she has served as chairwoman of the Consumer

Electronics Association and on the board of National Science and Technology Education

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Partnership. Her term is due to expire on April 14, 2022. She represents Supreme Court District

5.

15. Plaintiff Hal Heiner was appointed to the Board on April 16, 2018. A Louisville

businessman and former member of the Louisville Metro Council and Secretary of the Education

and Workforce Development Cabinet, Heiner also serves as chair of the Board. His term is due

to expire on April 14, 2022. He represents Supreme Court District 4.

16. Plaintiff Alesa Johnson was re-appointed to the Board on April 16, 2018. She is

Chief Officer of Workforce Solutions at Somerset Community College. She collaborates with

local economic development boards, postsecondary institutions and K-12 schools to recruit

business and industry to the area and coordinates workforce training efforts. Johnson has more

than 11 years of experience coordinating and facilitating educational initiatives in the 13-county

Cumberland region of Kentucky. Her term is due to expire on April 14, 2022. She represents


17. Plaintiff Joe Papalia was appointed to the Board on April 16, 2018. He lives in

Louisville and is an entrepreneur and chief executive officer of Munich Welding and Deposition

Technology Innovations. He holds a bachelor's degree in mechanical engineering from the

Massachusetts Institute of Technology (MIT) and has served as the institute’s Regional

Educational Coordinator. He is an At-large Member of the Board. His term is due to expire on

April 14, 2020.

18. Plaintiff Laura Timberlake, of Ashland, appointed April 16, 2018, is chief

operating officer for Big Sandy Distribution/Big Sandy Superstores. She also serves as

chairwoman of the Foundation for the Tri-State and on the boards of Ashland Alliance and Our

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Lady of Bellefonte Hospital. Her term is due to expire on April 14, 2022. She represents


19. Defendant, Governor Andy Beshear, is a duly elected constitutional officer of the

Commonwealth of Kentucky, vested with – but limited by – such powers as are afforded him by

the Kentucky Constitution and related state laws. The Governor is the chief executive officer of

the Commonwealth charged by Section 81 of the Constitution with taking care that the laws of

the Commonwealth be “faithfully executed.”

20. Defendant, Jacqueline Coleman (“Secretary Coleman”), is the Lieutenant

Governor of Kentucky and has also been appointed by Governor Beshear to serve as Secretary of

the Education and Workforce Development Cabinet. She is named in her official capacity as

Secretary of the Commonwealth of Kentucky Education and Workforce Development Cabinet.

JURISDICTION AND VENUE

21. An actual, justiciable controversy exists and this Court has subject matter

jurisdiction over this action pursuant to KRS 418.040, KRS 23A.010, and Rules of Civil

Procedure 57 and 65.

22. Venue is appropriate in this Court pursuant to KRS 452.405, because the

Governor and Education Secretary are located in Frankfort, Franklin County, Kentucky.

Furthermore, this action generally relates to violations of various Kentucky constitutional

provisions and statutes that were either determined or accomplished in Frankfort, Franklin

County, Kentucky. Furthermore, this action generally relates to violations of the Kentucky

Constitution, which occurred in Frankfort, Franklin County, Kentucky.

23. Pursuant to KRS 418.040, et seq., this Court may properly exercise in personam

jurisdiction over the Defendants.

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FACTUAL BACKGROUND

I. Previous reorganization cases.

24. During Governor Beshear’s four-year tenure as Kentucky Attorney General from

2015 to 2019, then-Attorney General Beshear filed two relevant actions against then-Governor

Matthew Bevin relating to the Governor’s attempts to reorganize several state boards. Those

actions include:

a. Commonwealth of Kentucky ex rel. Andy Beshear Attorney General v. Matthew G.

Bevin, et al., (filed July 5, 2016)(concerning reformation of University of Louisville

Board of Trustees), 2016-SC-000642-TG (October 10, 2017)(hereinafter, the “UofL

Case”); and

b. Commonwealth of Kentucky ex rel. Andy Beshear Attorney General v. Matthew G.

Bevin, et al., (filed June 20, 2017)(concerning reformation of seven statutory

education boards), 2017-SC-000647-TG (July 5, 2019 (hereinafter, the “Education

Case”).

25. The 2016 UofL Case was filed by Attorney General Beshear, who asked for a

permanent injunction to restrain Governor Bevin from reforming the University of Louisville

Board of Trustees, charging that by Executive Orders, “the Governor abolished the UofL Board

of Trustees and ended the terms of all of its members.” UofL Case Complaint, ¶ 35, attached as

Exhibit B.

26. The gravamen of the Attorney General’s Complaint in the UofL Case was that

“no trustee was given ‘cause’ for his or her removal,” as required by statute. UofL Case

Complaint, ¶ 36.

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27. In the 2016 UofL Case, Franklin Circuit Court Judge Philip Shepherd granted the

Attorney General’s Motion for Permanent Injunction and set aside the Governor’s Executive

Orders, stating, in part, that “the Governor cannot, by unilateral action under KRS 12.028,

circumvent the statutory requirement of KRS 63.080 that Board members ‘shall not be removed

except for cause.’” UofL Case Final Judgment Granting Declaratory and Injunctive Relief,

September 28, 2016, at 1-2, attached as Exhibit C.

28. The Governor appealed the UofL Case to the Kentucky Supreme Court.

29. In the interim, before the Kentucky Supreme Court could rule on the issues, the

Kentucky General Assembly passed Senate Bill 107 that provided a specific statutory path for a

governor to disband and reconstitute a university’s governing board and created a process for the

removal of individual members of a university’s governing board. Thus, the Kentucky Supreme

Court dismissed the appeal because it had been rendered moot by the passage of Senate Bill 107.

30. The passage of Senate Bill 107 did not affect the Kentucky Board of Education or

change any statutes relating to that entity.

31. In the 2017 Education Case, the Attorney General moved to enjoin the Governor

from enforcing Executive Orders that abolished and/or recreated seven statutory education

boards, including the Kentucky Board of Education. Education Case Complaint, Commonwealth

of Kentucky ex rel. Andy Beshear, Attorney General v. Matthew G. Bevin, et al., 17-CI-00673, at

5, attached as Exhibit D.

32. In the Education Case, the Supreme Court considered whether the Governor had

the statutory authority to add to, subtract from or abolish certain boards governed by the

Kentucky Revised Statutes.

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33. The Executive Order relating to the Kentucky Board of Education “modified the

Council on Postsecondary Education to guarantee that a citizen member is a non-voting, non-

member advisor to the Kentucky Board of Education and changed the Kentucky Board of

Education to include four non-voting, non-member advisors…” Beshear v. Bevin, 575 S.W.3d

673, 676 (Ky. 2019), at 4, attached as Exhibit E. Thus, the Executive Order added four non-

voting, non-member advisors to the Kentucky Board of Education. That Executive Order did not

subtract any members or dismiss any members from the Kentucky Board of Education.

34. Thus, relating to the Kentucky Board of Education, the Kentucky Supreme Court

did not consider whether board members could only be removed for cause.

35. During his gubernatorial campaign, Beshear repeatedly stated that he would use

the Court’s holding in the Education case as precedent to disband the entire Board “on day one”

after his inauguration, and expect the new board to meet immediately to vote on the ouster of

Commissioner of Education Dr. Wayne D. Lewis, Jr. Gov.-Elect Beshear’s Board of Education

Overhaul Would be Unprecedented, WFPL, December 9, 2019, attached as Exhibit F.

36. Beshear knew, or at least should have known, that he could not legally make good

on his campaign promise because that holding did not affect the statutes at issue here.

II. The Kentucky Board of Education.

37. The primary function of the Board is to develop and adopt policies and

administrative regulations, with the advice of the Local Superintendents Advisory Council, by

which the Department of Education shall govern in planning, coordinating, administering,

supervising, operating, and evaluating the educational programs, services, and activities within

the Department of Education that are within the jurisdiction of the Board.

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38. As mandated by Kentucky law, the Board develops and adopts the regulations

that govern Kentucky's 172 public school districts and the actions of the Kentucky Department

of Education.

39. The Board consists of eleven (11) members appointed by the Governor and

confirmed by the Senate and the House of Representatives of the General Assembly, with the

president of the Council on Postsecondary Education serving as an ex officio non-voting

member. Seven (7) members shall represent each of the Supreme Court districts as established

by KRS 21A.010, and four (4) members shall represent the state at large. Each of the appointed

members shall serve for a four (4)-year term.

III. Executive Order 2019-002.

40. On December 10, 2019, Governor Beshear issued Executive Order 2019-002,

citing KRS 12.028 and 12.029 as his authority.

41. In Executive Order 2019-002, the Governor abolished the Kentucky Board of

Education and ended the terms of all its members. The order states: “The Kentucky Board of

Education as created by KRS 156.029 is hereby abolished.” Executive Order 2019-002.

42. Based on the order, no trustee was given “cause” for his or her removal and the

Order does not cite to either of the two Kentucky statutes that require that cause be given to

remove a Board member. See KRS 63.080; KRS 156.029.

43. The Governor then “recreated” an illegal board to oversee Kentucky’s elementary

and secondary education system.

44. While this action violates numerous laws and has numerous consequences for

Kentucky’s elementary and secondary education system as discussed herein, there is nothing

accomplished by this abolishment and dissolution other than the wholesale removal of the duly

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appointed board members in the middle of their statutory terms and less than a month before the

Kentucky General Assembly convenes.

45. Executive Order 2019-002 therefore suspends, ignores, and effectively rewrites

KRS 12.028, 63.080 and 156.029.

IV. The Law.

46. KRS 12.028(1) states as follows:

Recognizing the necessity for grouping related functions of organizational units and

administrative bodies in order to promote greater economy, efficiency and improved

administration, the Governor, the Kentucky Economic Development Partnership as

created in KRS 154.10-010, and other elected state executive officers may propose to

the General Assembly, for its approval, changes in the state government

organizational structure which may include the creation, alteration or abolition of any

organizational unit or administrative body and the transfer of functions, personnel,

funds, equipment, facilities, and records from one (1) organizational unit or

administrative body to another.

47. KRS 12.028(2) states as follows:

Recognizing that changes in the state government organizational structure may need

to be made as rapidly as possible to achieve greater economy, efficiency, and

improved administration as the needs of government dictate, the Governor, the

Kentucky Economic Development Partnership as created in KRS 154.10-010, and

other elected state executive officers may, between sessions of the General Assembly,

temporarily effect a change in the state government organizational structure as

described in subsection (1) of this section if such temporary reorganization plan is

first reviewed by the interim joint legislative committee with appropriate jurisdiction.

48. Thus, the Governor must show that to change a board “between sessions of the

General Assembly,” the purported change must need to be accomplished “as rapidly as possible”

and to achieve “greater economy, efficiency, and improved administration.” KRS 12.028(2).

49. Further, the change must be for the “grouping” of “related functions of

organizational units and administrative bodies[.]” KRS 12.028(1).

50. Further, the change must include the “creation, alteration or abolition” of a

governmental unit or administrative body and the “transfer of functions, personnel, funds,

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equipment, facilities, and records from one (1) organizational unit or administrative body to

another.” KRS 12.028(1).

51. The Kentucky General Assembly is set to convene for Regular Session on January

7, 2020, which is a mere four weeks after the issuance of Executive Order 2019-002.

52. The Board meets every other month. The Board held its last regular meeting on

December 4, 2019, and is set to hold its next meeting on February 4, 2020.

53. No reason exists to disband the entire Board “as rapidly as possible,” less than a

month before the General Assembly convenes for Regular Session or prior to the Board’s next

scheduled meeting, nor does the disbanding of the Board achieve “greater economy, efficiency,

and improved administration,” as is required by the provisions of KRS 12.028(1).

54. Further, Executive Order 2019-002 does not recognize the necessity for “grouping

related functions” or the “transfer of functions, personnel, funds, equipment, facilities, and

records from one (1) organizational unit or administrative body to another” as is required by the

provisions of KRS 12.028(1).

55. KRS 156.029 states that pursuant to KRS 63.080, a member of the Kentucky

Board of Education “shall not be removed except for cause.” KRS 156.029(2).

56. KRS 63.080 states: “Members of the Kentucky Board of Education … shall not

be removed except for cause.” KRS 63.080(2)(b).

57. KRS 63.080 further states: “For the purposes of this subsection, a member may be

removed for cause for conduct including but not limited to malfeasance, misfeasance,

incompetence, or gross neglect of duty.” KRS 63.080(2)(d).

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58. Executive Order 2019-002 does not include any charge for cause and none of the

Board Members engaged in “malfeasance, misfeasance, incompetence, or gross neglect of

duty.”1

CLAIMS

Count I

Violations of KY. CONST. § 15

59. Plaintiffs incorporate by reference each and every allegation previously set forth

in this Verified Complaint as if fully set forth herein.

60. KY Const. §15, entitled, “Laws to be suspended only by General Assembly,”

states, “No power to suspend laws shall be exercised unless by the General Assembly or its

authority.”

61. KRS 156.029 establishes that the Board shall have eleven (11) members

appointed by the Governor.

62. KRS 156.029 states that “Pursuant to KRS 63.080, a member shall not be

removed except for cause.”

63. KRS 63.080 states that “Members of the Kentucky Board of Education … shall

not be removed except for cause.”

64. KRS 63.080 defines “cause” as “including but not limited to malfeasance,

misfeasance, incompetence, or gross neglect of duty.”

1The EO cites in a whereas provision in his Executive Order: “Whereas, members of the current Kentucky Board of

Education have conflicting relationships, lack experience in public education, failed to conduct a nationwide search

before appointing the Commissioner of Education, and accepted plane tickets, hotel rooms, and conference fees

from an organization closely tied to registered lobbyists of both the Kentucky Department of Education and the

Kentucky Board of Education.” Yet, no Member of the Board of Education has been questioned about any

conflicting relationship; all members met the statutory requirements for membership; there was no statutory

requirement that a nationwide search for commissioner be held; and any conferences that were attended upon the

basis of scholarships were reviewed with the Ethics Commission prior to attending.

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65. Executive Order 2019-002 suspends KRS 63.080 and KRS 156.029 because

Plaintiffs were dismissed from their positions without cause.

66. By suspending statutes without the authority of the General Assembly, Governor

Beshear has violated Section 15 of the Kentucky Constitution.

Count II

Violations of Separation of Powers

KY. CONST. §§ 27, 28, 29


in this Verified Complaint as if fully set forth herein.

68. KY. CONST. §27 states:

“The powers of the government of the Commonwealth of Kentucky shall be divided into

three distinct departments, and each of them be confined to a separate body of magistracy, to wit:

Those which are legislative, to one; those which are executive, to another; and those which are

judicial, to another.”


“No person or collection of persons being of one of those departments shall exercise any

power properly belonging to either of the others, except in the instances hereinafter expressly

directed or permitted.”


“The Legislative power shall be vested in a House of Representatives and a Senate,

which, together, shall be styled the General Assembly of the Commonwealth of Kentucky.”

71. KY. CONST. § 23 states:

“The General Assembly shall not grant any title of nobility or hereditary distinction, nor

create any office the appointment of which shall be for a longer time than a term of years.”

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76. Executive Order 2019-002 suspends KRS 63.080 and KRS 156.029 because

Plaintiffs were dismissed from their positions without cause.

77. By issuing Executive Order 2019-002, Governor Beshear has violated Sections

27, 28 and 29 of the Kentucky Constitution by invading the province of the General Assembly’s

legislative power.

Count III



in this Complaint as if fully set forth herein.

79. KY. CONST. §81, entitled, “Governor to enforce the laws,” states, “He shall take

care that the laws be faithfully executed.”

80. Governor Beshear and his representatives are required to faithfully execute the

Kentucky Constitution and Revised Statutes, including all provisions of KRS 63.080, and KRS

156.029.



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85. Executive Order 2019-002 violates the plain language of KRS 164.821 and KRS

63.080.

86. By violating the provisions of the Kentucky Constitution, KRS 63.080, and KRS

164.821 as set forth above, Governor Beshear has violated Section 81 of the Kentucky

Constitution.

Count IV

Violations of KRS Chapter 63

87. Plaintiff incorporates by reference each and every allegation previously set forth


88. KRS 63.080(2)(b) establishes that members of the Kentucky Board of Education

“shall not be removed except for cause.”

89. Cause is defined as “conduct including but not limited to malfeasance,

misfeasance, incompetence, or gross neglect of duty.” KRS 63.080(2(d).

90. By issuing Executive Order 2019-002, the Governor has violated the plain

language of KRS 63.080.

Count V


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93. KRS 156.029(2) provides “Pursuant to KRS 63.080, a member shall not be


94. By issuing Executive Order 2019-002, the Governor has repeatedly violated KRS

156.029.

Count VI




96. KRS 12.028(1) recognizes the necessity for “grouping related functions” to

“promote greater economy, efficiency and improved administration.”

97. KRS 12.028(1) also dictates that if there is a need to group related functions to

promote greater economy, efficiency and improved administration, the Governor can change

certain state governmental organizational structures, which include the “creation, alteration or

abolition of any organizational unit or administrative body and the transfer of functions,

personnel, funds, equipment, facilities, and records from one (1) organizational unit or

administrative body to another.”

98. KRS 12.028(2) states that the Governor can effectuate the provisions in KRS

12.028(1) if the change is necessary “as rapidly as possible to achieve greater economy,

efficiency, and improved administration as the needs of government dictate[.]”

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99. Executive Order 2019-002 violates KRS 12.028(2) because it is not for the

“grouping” of related functions, does not “promote greater efficiency and improved

administration,” and does not do both of the following: 1) “creation, alteration or abolition of any

organizational unit or administrative body;” and 2) “the transfer of functions, personnel, funds,

equipment, facilities, and records from one (1) organizational unit or administrative body to

another.”

100. Governor Beshear exceeded the statutory authority under KRS 12.028 by issuing

Executive Order 2019-002.

Count VII

Declaratory Judgment



102. An actual justiciable controversy exists among the parties as to whether:

A. Governor Beshear has violated KY. CONST. §§15, 27-29, and 81, and

KRS 12.028, 63.080 and 156.029 in enacting Executive Order 2019-002;

B. Executive Order 2019-002 is null and void because it violates the

Kentucky Constitution and/or the Kentucky Revised Statutes;

103. Plaintiff is entitled to a declaratory judgment that:


KRS 12.028, 63.080 and 156.029 in enacting Executive Order No. 1;


Kentucky Constitution and/or the Kentucky Revised Statutes.

COUNT VIII

Injunctive Relief

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105. As described above, Plaintiff is entitled to further relief in the form of injunctive

relief, both temporary and permanent, restraining and enjoining the defendants, and all their

agents, attorneys and any other persons in active concert or participation with them, from

enforcing and implementing Executive Order 2019-002 and attempting to prevent or interfere

with the official business of the Board.

106. By reason of the actions and violations described above, the Commonwealth has

suffered immediate and irreparable injury and will continue to so suffer unless Defendants are

immediately restrained and permanently enjoined from such activity by Order of this Court.

107. Plaintiff has no adequate remedy at law or otherwise to address this injury, save in

a court of equity.

108. No previous application for a restraining order or an injunction has been refused

by any court.

109. Plaintiffs are entitled to further relief as may be shown by the evidence and legal

authority that may be presented in this proceeding. Plaintiffs reserve their right to amend this

Complaint, as necessary, to request any further relief that they are entitled to seek.

WHEREFORE, Plaintiffs demand judgment against Defendants as set forth in their

Prayer for Relief below.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs demand as follows:

I. That this Court issue a declaration and order that:

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KRS 12.028, 63.080 and 156.029 in enacting Executive Order 2019-002 and by

attempting to enforce this Order; and


Kentucky Constitution and/or the Kentucky Revised Statutes; and

II. That a restraining order, temporary injunction and a permanent injunction be

issued by this Court restraining and enjoining the Defendants, and all their agents, attorneys,

representatives, and any other persons in active concert or participation with them, from

implementing and enforcing Executive Order 2019-002 and attempting to prevent or interfere

with the official business of the Plaintiffs as members of the Kentucky Board of Education; and

III. Plaintiffs be awarded any and all other relief to which they may appear entitled,

including their attorneys’ fees and costs.

Respectfully Submitted,

/s/ Bart L. Greenwald

Bart L. Greenwald

[email protected]

Ambrose O’Bryan

[email protected]

Duncan Galloway Egan Greenwald, PLLC

9625 Ormsby Station Road

Louisville, KY 40223

(502) 614-6974

(502) 614-6980 – Fax

Counsel for Plaintiffs

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EXHIBIT A

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DIVISION _

CIVIL ACTION NO. 16-CI-_____


ex rel. ANDY BESHEAR, ATTORNEY GENERAL PLAINTIFF

v. VERIFIED COMPLAINT FOR DECLARATION

OF RIGHTS AND A PERMANENT INJUNCTION

MATTHEW G. BEVIN, in his official capacity DEFENDANT

as Governor of the Commonwealth of Kentucky


The Capitol

700 Capitol Avenue


and

WILLIAM M. LANDRUM III, in his official capacity DEFENDANT

as Secretary of the Finance and Administration Cabinet


The Capitol

700 Capitol Avenue


and

THOMAS B. STEPHENS, in his official capacity DEFENDANT

as Secretary Of The Personnel Cabinet


The Capitol

700 Capitol Avenue


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Filed 16-CI-00738 07/05/2016 Amy Feldman, Franklin Circuit Clerk


NOT ORIGINAL DOCUMENT12/04/2019 04:20:48 [email protected]

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VERIFIED COMPLAINT FOR DECLARATION

OF RIGHTS AND FOR INJUNCTIVE RELIEF

Comes now the Plaintiff, Commonwealth of Kentucky, ex rel. Andy Beshear, Attorney

General (hereinafter “Attorney General”), by and through counsel, and brings this action for a

permanent injunction and declaration of rights against the Defendants, Matthew Griswold Bevin,

Governor of the Commonwealth of Kentucky in his official capacity; William M. Landrum III,

Secretary of the Finance and Administration Cabinet in his official capacity; Thomas B.

Stephens, in his official capacity as Secretary of the Personnel Cabinet.

INTRODUCTION

Governor Bevin claims “absolute authority” to dissolve and reorganize any of the more

than approximately 400 state boards, including the independent and autonomous University of

Louisville Board of Trustees (“UofL Board”) and other public University boards. These

university boards are created and governed by dozens of specific statutes that create checks and

balances. These statutes ensure the boards make decisions that benefit the universities, and not

do the bidding of the Governor. The Governor’s claimed authority would give him direct control

over the university boards as he could simply dissolve them at any time . Thus, Governor Bevin

could control decisions about tuition, faculty, course offerings, and budgets at UofL and every

other public university.

Pursuant to his proclaimed “absolute authority,” the Governor has issued three illegal

Executive Orders regarding the UofL Board. These actions violate numerous sections of the

Kentucky Constitution, including the prohibition against suspending statutes, the separation of

powers, and the Governor’s duty to faithfully execute the law. They further violate the letter and

intent of numerous statutes creating and governing the UofL Board and the university itself.

Finally, they do not meet the requirements and violate the intent of Chapter 12, as the

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reorganizations are being used to establish and/or increase gubernatorial control and authority,

and not for any efficiency.

The Governor’s position threatens the independence of these boards and our very liberty.

If the Court were to uphold his claim of “absolute authority,” the Governor could dissolve and

reorganize the Board of Elections, potentially changing the outcomes of the democratic process.

He could do the same with the Registry of Election Finance if it raised issues with him or his

political allies. The potential for abuse is simply untenable. That is exactly why the Governor’s

actions are prohibited under Kentucky law.

The Attorney General has a legal duty to uphold Kentucky’s Constitution and its laws.

As such, the Attorney General must ensure that the Governor comply with the law. The

Attorney General, through this action for declaratory and injunctive relief, seeks to uphold the

laws of the Commonwealth and respectfully asks this Court to:

A. Declare the executive orders of Governor Bevin illegal;

B. Permanently enjoin the Defendants from enforcing his executive orders related to the

UofL Board and from interfering further with the duly constituted and statutory UofL

Board and its duly appointed Trustees;

NATURE OF ACTION

1. This Verified Complaint for a Declaration of Rights and Permanent Injunction is

governed by the Kentucky Declaratory Judgment Act, KRS 418.010, et seq., CR 57, and CR 65

and is initiated by the Attorney General pursuant to his authority under the Kentucky

Constitution, KRS Chapter 15, and the common law.

2. KRS 418.040 provides this court with authority to “make a binding declaration of

rights, whether or not consequential relief is or could be asked” when a controversy exists. An

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actual and justiciable controversy regarding violations of the Kentucky Constitution and state

laws clearly exists in this action.

3. CR 65 permits this court, in a final judgment, to issue a permanent injunction

which may restrict or mandatorily direct the doing of an act.

4. Furthermore, this justiciable controversy is capable of repetition but evading

review as evidenced by Governor Bevin’s pattern of “reorganizing” various autonomous boards

and commissions in violation of the law. In fact, the Governor has shown a pattern of

“reorganizing” boards right before important decisions were to be made by their members. For

example, upon information and belief, the Governor reorganized the Kentucky Horse Park

Commission just days before it was set to vote to hire an executive director. Furthermore, upon

information and belief, the Governor reorganized the Workers’ Compensation Nominating

Commission just days before it was scheduled to provide names to the Governor for

Administrative Law Judge appointments. The Governor himself even claims that he has

unconstrained, “absolute authority” to disband any board or commission he so chooses.1

5. The Commonwealth requests an expedited review pursuant to KRS 418.050 and

CR 57. The Governor’s executive orders have caused considerable confusion regarding who

shall properly govern UofL. Time is of the essence and this justiciable controversy presents an

immediate concern that must be promptly resolved to permit the board to perform its statutory

functions.

6. This is an action brought to declare that Governor Bevin’s attempts to seize

control of the autonomous governing board of the University of Louisville (Exhibit A, Executive

Order 2016-338, June 17, 2016; Exhibit B, Executive Order 2016-339; Exhibit C, Executive

1 Jack Brammer, Bevin Says He Has ‘Absolute Authority’ to Disband Any State Board, LEXINGTON HERALD-

LEADER, June 21, 2016 (available at http://www.kentucky.com/news/politics-government/article85085272.html).

(Last visited June 22, 2016).

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http://www.kentucky.com/news/politics-government/article85085272.html

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Order 2016-391) under the guise of a “reorganization” are null, void, unconstitutional, and of no

effect.

7. This is also an action to enjoin Governor Bevin, Finance Secretary Landrum,

Personnel Cabinet Secretary Stephens, and all their agents, attorneys and any other persons in

active concert or participation with them, from attempting to prevent or interfere with the duly

appointed board Trustees’ service as members of the UofL Board.

8. This is also an action to enjoin the purported abolishment and re-creation of the

UofL Board as set forth in Executive Orders 2016-338, 2016-339, and 2016-391, until this Court

determines whether Governor Bevin has the power under the Kentucky Constitution and

Kentucky statute(s) to order the “reorganization of the University of Louisville Board of

Trustees.”

PARTIES

9. The Plaintiff, Commonwealth of Kentucky ex rel. Andy Beshear, is the duly

elected Attorney General of the Commonwealth of Kentucky and is a constitutional officer

pursuant to Sections 91, 92 and 93 of the Kentucky Constitution. Pursuant to KRS 15.020,

General Beshear is the chief law officer of the Commonwealth and all of its departments,

commissions, agencies and political subdivisions. Attorney General Beshear is duly authorized

by the Kentucky Constitution, statutes and the common law, including his parens patriae

authority, to enforce Kentucky law. As Attorney General, he has the authority to bring actions

for injunctive and other relief to enforce the Kentucky Constitution and the Commonwealth’s

statutes and regulations, including the authority to bring an action against the Governor and other

state agencies for injunctive relief. See KY. CONST. § 91; KRS 15.020.

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10. The Defendant, Governor of Kentucky Matthew Griswold Bevin is a duly elected

constitutional officer of the Commonwealth of Kentucky, vested with – but limited by – such

powers as are afforded him by the Kentucky Constitution and related state laws. The Governor

is the chief executive officer of the Commonwealth charged by Section 81 of the Constitution

with taking care that the laws of the Commonwealth be “faithfully executed.”

11. The Defendant William M. Landrum III (“Finance Secretary Landrum”) is a

program cabinet Secretary and has been named as a Defendant in his official capacity as the

Secretary of the Finance and Administration Cabinet of the Commonwealth of Kentucky.

12. The Defendant Thomas B. Stephens (“Personnel Cabinet Secretary Stephens”) is

a program cabinet Secretary named as a Defendant in his official capacity as the Secretary of the

Personnel Cabinet of the Commonwealth of Kentucky.



jurisdiction over this action pursuant to KRS 418.040, KRS 23A.010, and Rules of Civil

Procedure 57 and 65.

14. Venue is appropriate in this Court pursuant to KRS 452.405, since the primary

offices of the Attorney General, the Governor, the Finance Secretary, and the Personnel

Secretary are located in Frankfort, Franklin County, Kentucky. Furthermore, this action

generally relates to violations of various Kentucky constitutional provisions and statutes which

were either determined or accomplished in Frankfort, Franklin County, Kentucky. Furthermore,

this action generally relates to violations of the Kentucky Constitution, which occurred in

Frankfort, Franklin County, Kentucky.

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15. Pursuant to KRS 418.040, et seq., this Court may properly exercise in personam


FACTUAL BACKGROUND

I. The Governor’s Illegal Acts Related to the University of Louisville Board of

Trustees

A. The University of Louisville and the UofL Board of Trustees

16. The University of Louisville (“UofL”) has a long and rich history in the

Commonwealth of Kentucky. It was initially founded as the Jefferson Seminary in Louisville in

1798.2 In 1846, it was incorporated by the Kentucky General Assembly. See Ky. Acts 1846,

Chapter 137, p. 135.

17. In 1970, the University of Louisville became a “state institution” pursuant to KRS

164.810, which permitted it to receive the benefits of a state institution and maintained its

nonstock, nonprofit corporate status pursuant to KY. CONST. § 190 and KRS Chapter 273. The

University was required to amend its charter and articles of incorporation to conform to KRS

164.810 et seq., which included vesting UofL’s governance with its board of trustees. (See

Exhibit D, Articles of Amendment to Charter and Articles of Incorporation of the University of

Louisville, A Body Politic and Corporate, filed with the Secretary of State, July 1, 1970);

164.810(3); KRS 164821(1). Its most recent by-laws were approved by the UofL Board of

Trustees on November 13, 2008. (See Exhibit E, By-Laws of the Board of Trustees, University

of Louisville, November 13, 2008).

2 See University of Louisville A Brief History webpage (http://louisville.edu/about/history) (last visited July 4,

2016).

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18. In 2015, the University enrolled 22,367 total students in both undergraduate and

graduate programs. This includes one of three Kentucky law schools and one of three Kentucky

medical schools. The University had a total operating budget of $1.2 billion in 2015.3

19. As noted above, UofL is not just a state institution. It also operates as a nonstock,

nonprofit corporation subject to the provisions of KRS 273.161 et seq. (See Charter, Exhibit D,

Article III, Section 8, p. 12). Throughout the years, UofL and the UofL Board have taken various

actions consistent with this nonstock, nonprofit status including making the necessary filings

with the Secretary of State pursuant to KRS Chapter 273. UofL’s most recent annual report was

filed with the Secretary of State on March 8, 2016 and named members of the duly appointed

and statutory UofL Board as its officers. (See Exhibit F, University of Louisville Annual

Report, March 8, 2016).

20. Pursuant to KRS 164.821, the UofL Board is the governing body of the

University of Louisville. KRS 164.830 provides the UofL Board with powers independent of the

Governor and states:

The board of trustees of the University of Louisville shall constitute a body

corporate, with the usual corporate powers, and shall possess all the authorities,

immunities, rights, privileges, and franchises usually attaching to the governing

bodies of Kentucky public higher educational institutions.

21. These powers include, but are not limited to, the appointment and removal of a

president, faculty, and other personnel, KRS 164.830(1)(a)-(b); granting degrees, KRS

164.830(1)(f); and setting and evaluating the University’s strategic agenda, KRS 164.830(g).

22. In addition, the UofL Board is responsible for and controls the University’s

finances pursuant to KRS 164A.555 et seq.

3 See University of Louisville Profile webpage (http://louisville.edu/about/profile) (last visited July 4, 2016).

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http://louisville.edu/about/profile

-9-

23. The University of Louisville was initially accredited by the Southern Association

of Colleges and Schools (“SACS”) in 1915. Such accreditation is critical to receiving and

administering federal funds and awarding associate, bachelor, master, specialist, doctoral and

first-professional degrees. UofL last received its accreditation certification in October 2010. (See

Exhibit G, SACS accreditation certificate letter to President James R. Ramsey, October 27,

2010). Upon information and belief, it is currently in the reaccreditation process, with its next

accreditation review in 2017. See Exhibit G.

24. SACS accreditation requires that universities meet “Comprehensive Standards.”

Several of these standards relate to governing boards. One mandatory standard, Standard 3.2.4,

requires that “the governing board is free from undue influence from political, religious, or other

external bodies and protects the institution from such influence.” (See Exhibit H, SOUTHERN

ASSOCIATION OF COLLEGES AND SCHOOLS, “Principles of Accreditation” (5th Ed. 2011), p. 26

(Available at: http://www.sacscoc.org/pdf/2012PrinciplesOfAcreditation.pdf).4

25. A second “Comprehensive Standard,” Standard 3.2.5, requires that “the governing

board has a policy whereby members can be dismissed only for appropriate reasons and by a fair

process.” See Exhibit H, p. 26).

26. Public universities in Kentucky routinely meet these standards by citing the

specific checks and balances in the Kentucky Revised Statutes that are meant to protect

university boards from undue political influence, which limit trustee removal, and provide due

process for any attempted removal.

4 See also SOUTHERN ASSOCIATION OF COLLEGES AND SCHOOLS, “Resource Manual for the Principles of

Accreditation” (2nd Ed. 2012), p. 40-41 (Available at: http://www.sacscoc.org/pdf/Resource%20Manual.pdf)(last

visited July 4, 2016).

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http://www.sacscoc.org/pdf/2012PrinciplesOfAcreditation.pdf

http://www.sacscoc.org/pdf/Resource%20Manual.pdf)(last

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27. The Kentucky Revised Statutes related to the UofL Board first provide for

specific number of trustees that include faculty and student representation. KRS 164.821(1)

specifically mandates:

The government of the University of Louisville is vested in a board of trustees

appointed for a term set by law pursuant to Section 23 of the Constitution of

Kentucky. The board shall consist of seventeen (17) members appointed by the

Governor; one (1) member of the teaching faculty of the University of Louisville

who shall be the chief executive of the ranking unit of faculty government; a

member of the permanent staff of the University of Louisville who shall be the

chief executive of the staff senate; and a student member who shall be the

president of the student body during the appropriate academic year.

(Emphasis added.)

28. The law then provides that the Trustees appointed by the governor “shall serve a

term of six (6) years….” KRS 164.821(4). The General Assembly created the six year term in

1990 to specifically limit the power of the Governor so that he/she could not appoint all trustees

at one time or in one term.

29. Having protected appointments from undue political influence, the law next

protects Trustees from removal, making it only for cause and only after their right to due

process:

“Board members may be removed by the Governor for cause, which shall include

neglect of duty or malfeasance in office, after being afforded a hearing with

counsel before the Council on Postsecondary Education and a finding of fact

by the council.”

KRS 164.821(1)(b) (emphasis added).

30. This requirement is repeated in a separate statute related to all university boards:

Members of the board of trustees of the University of Kentucky, the board of trustees

of the University of Louisville, members of the board of regents respectively of Eastern

Kentucky University, Western Kentucky University, Morehead State University,

Kentucky State University, Northern Kentucky University, Murray State University, and

the Kentucky Community and Technical College System, and members of the Kentucky

Board of Education and the Council on Postsecondary Education shall not be removed

except for cause.

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KRS 63.080(2)(emphasis added).

31. Knowing these laws are critical to its accreditation and operation, UofL’s by-laws

also require the membership and terms of the UofL Board to comply with the Kentucky Revised

Statutes. The by-laws mandate:

The government of the University shall be vested in a Board of Trustees, which shall

consist of such number of persons having such voting rights, serving such terms and

appointed by such means as provided in the Kentucky Revised Statutes.

(Exhibit E, Article 2, Section 2.1, p. 1).

32. But Kentucky law does not stop there, and contains additional protections. For

instance, when a vacancy on a University board does occur, either by the ending of a term,

resignation, appropriate removal, or death, the Governor must follow procedures outlined in

KRS 164.005 through the Governor’s Postsecondary Nominating Committee to fill the vacancy.

33. This Nominating Committee was established by the General Assembly in 1992 to

further prohibit gubernatorial interference with the university governing boards. KRS

164.005(7) requires the Nominating Committee to “consider the needs of the respective

institutions, locate potential appointees, review candidates' qualifications and references, conduct

interviews, and carry out other search and screening activities as necessary.”

B. The Illegal Abolishment of the UofL Board and Creation of the Illegal Board –

Executive Order 2016-338

34. On June 17, 2016, the Governor issued executive order 2016-338 (Exhibit A, the

“UofL Reorganization Order”), citing KY. CONST. §§ 69 and 81 and KRS 12.028 as his

authority.

35. In the UofL Reorganization Order, the Governor abolished the UofL Board of

Trustees and ended the terms of all its members. The order states:

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The University of Louisville Board of Trustees as established by KRS 164.821 is

abolished. The terms of the members appointed by the Governor serving on the

University of Louisville Board of Trustees as it existed prior to the filing of this

Order shall expire immediately upon the filing of this Order.

(Exhibit A, at p. 3.)

36. Based on the order, no trustee was given “cause” for his or her removal. No

trustee received any hearing before the Commission on Postsecondary Education or any other

body.

37. The Governor then “recreated” an Illegal Board to oversee UofL and deemed that

the new membership shall consist of:

A. Ten (10) members appointed by the Governor, at least one (1) of whom shall

be a graduate of the University, selected from nominees submitted to the

Governor by the Postsecondary Education Nominating Committee in accordance

with KRS 164.005.

B. One (1) member of the teaching faculty of the University of Louisville, who

shall be the chief executive of the ranking unit of faculty government, who shall

serve a one (1) year term.

C. One (1) member of the permanent staff of the University of Louisville, who

shall be the chief executive of the staff senate who shall serve a one (1) year term.

D. One (1) student member who shall be the president of the student body during

the relevant academic year who shall serve a one (1) year term. The student

member shall begin service as a Board member beginning with the first meeting

of the academic year for which she or he was selected as student body president.

E. The persons referenced in Subsections B., C., and D. of this Section shall not

begin their service as members of the Board until the ten (10) members appointed

under Subsection A. of this Section have begun their service as members.

(Exhibit A, at p. 3-4).

38. While this action violates numerous laws and has numerous consequences for

UofL as discussed herein, there is nothing accomplished by this abolishment and dissolution

other than the wholesale removal of the duly appointed Trustees in the middle of their statutory

terms.

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39. The UofL Reorganization Order therefore suspends, ignores, and effectively

rewrites KRS 164.821.

40. The membership of the recreated Board of Trustees is in direct conflict with and

in violation of KRS 164.821, in which the General Assembly determined that UofL shall be

governed by a twenty member board.

41. The action also violates KRS 164.821(1)(b) by removing trustees without cause

and without any hearing.

42. The action finally violates UofL’s by-laws because the membership of the Illegal

Board is no longer in conformity with the Kentucky Revised Statutes as required under by-laws

Section 2.1.

43. The Governor’s directive usurps, invades, and erodes the authority of the

legislative branch, a co-equal branch of state government, which has the authority to make law

determining the governance of UofL and set the terms and authority of the UofL Board and its

Trustees.

44. Upon information and belief, the Governor’s illegal actions have even imperiled

UofL’s accreditation. The UofL Board Trustees, who were removed by a politician’s executive

order, were not provided fair process as outlined in SACS Comprehensive Standard 3.2.5.

Moreover, the UofL Board is not free from political influence if the Governor has “absolute

authority” to remove its members by Executive Order. This causes UofL to be in violation of

SACS Comprehensive Standard 3.2.4.

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C. The Illegal Formation of a Temporary Board to Oversee UofL –

Executive Order 2016-339

45. Additionally, on June 17, 2016, the Governor issued executive order 2016-339

(Exhibit B, the “UofL Interim Board Order”), citing KY. CONST. §§ 69 and 81 and KRS 12.028

and 63.190.

46. In the UofL Interim Board Order, the Governor, by executive fiat and with no

advice and consent of any body, created a three-person Interim Board to govern UofL and named

its members. (Exhibit B, at 1.)

47. KRS 164.821 does not provide for an interim board of any kind.

48. The make-up of the Interim Board is in direct conflict with and in violation of

KRS 164.821, in which the General Assembly determined that UofL shall be governed by a

twenty member board.

49. Moreover, the Governor did not follow the procedure outlined in KRS 164.005 to

appoint these temporary members to this temporary board.

50. Moreover, in his executive order, the Governor appointed all “new” members at

the same time, violating the precise reasons KRS 164.821(4) provided six-year terms..

51. As such, the UofL Interim Board Order suspended the operation of KRS 164.821.

D. The Appointment of Members to the Illegal Board – Executive Order 2016-391

52. The Governor issued Executive Order 2016-391 on June 29, 2016, appointing ten

(10) members to the Governor’s newly created and Illegal board to oversee the University of

Louisville’s operations (“Illegal Board”) from a list of thirty (30) nominees provided to him by

the Governor’s Postsecondary Education Nominating Committee on June 28, 2016, after a

closed-door meeting. (Exhibit C, Executive Order 2016-391, “UofL Board Appointment

Order.”)

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53. The UofL Reorganization Order, the UofL Interim Board Order, and the UofL

Appointment Order all violate the process for nominating Trustees as outlined in KRS

164.005(5)(a), which requires the Governor to choose Trustees from three names provided to

him by the Postsecondary Education Nominating Committee for each vacant position.

54. The UofL Appointment Order appoints members to a board which legally does

not exist and is illegal. Additionally, there were not ten (10) vacancies on the duly constituted

statutory UofL Board at the time of Executive Order 2016-391.

55. Moreover, in his executive order, the Governor appointed all “new” members at

the same time, violating the precise reasons KRS 164.821(4) provided six-year terms. This

executive order is illegal and void.

CLAIMS

Count I




57. KY Const. §15, entitled, “Laws to be suspended only by General Assembly,”

states, “No power to suspend laws shall be exercised unless by the General Assembly or its

authority.”

58. KRS 164.821 establishes that the UofL Board shall have seventeen (17) members


59. KRS 164.821(1)(b) provides “Board members may be removed by the Governor

for cause, which shall include neglect of duty or malfeasance in office, after being afforded a

hearing with counsel before the Council on Postsecondary Education and a finding of fact by the

council.”

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60. KRS 63.080(2) establishes that members of the University of Louisville Board of

Trustees “shall not be removed except for cause.”

61. In addition, KRS 164.821 outlines other provisions for the operation of the

University which were suspended by the Governor.

62. Executive Orders 2016-338, 2016-339, and 2016-391 suspend KRS 164.821 and

KRS 63.080.


Bevin has violated Section 15 of the Kentucky Constitution.

Count II


KY. CONST. §§ 27, 28, 29




The powers of the government of the Commonwealth of Kentucky shall be divided into

three distinct departments, and each of them be confined to a separate body of magistracy, to wit:

Those which are legislative, to one; those which are executive, to another; and those which are

judicial, to another.


No person or collection of persons being of one of those departments, shall exercise any

power properly belonging to either of the others, except in the instances hereinafter expressly

directed or permitted.


The Legislative power shall be vested in a House of Representatives and a Senate, which,

together, shall be styled the General Assembly of the Commonwealth of Kentucky.


The General Assembly shall not grant any title of nobility or hereditary distinction, nor

create any office the appointment of which shall be for a longer time than a term of years.

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69. By enacting KRS 164.821, the General Assembly statutorily established that the

UofL Board shall have seventeen members appointed by the Governor.

70. In KRS 164.821, the General Assembly further exercised its constitutional

authority and provided for a term of six (6) years for the trustees of the UofL Board – a term of

years pursuant to KY. CONST. § 23.




council.”

72. By enacting KRS 63.080(2), the General Assembly statutorily established that

members of the UofL Board “shall not be removed except for cause.”

73. By issuing Executive Orders 2016-338, 016-339, and 2016-391 which violate

KRS 164.821 and KRS 63.080, Governor Bevin has violated Sections 27, 28 and 29 of the

Kentucky Constitution by invading the province of the General Assembly’s legislative power.

Count III




75. KY. CONST. §81, entitled, “Governor to enforce the laws,” states, “He shall take

care that the laws be faithfully executed.”

76. Governor Bevin and his representatives are required to faithfully execute the

Kentucky Constitution and Revised Statutes, including all provisions of KRS 63.080, and KRS

164.821.

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77. KRS 164.821 establishes that the UofL Board shall have seventeen (17) members





council.”

79. KRS 63.080(2) establishes that members of the UofL Board “shall not be


80. Executive Orders 2016-338, 2016-339, and 2016-391 violate the plain language

of KRS 164.821 and KRS 63.080.

81. By violating the provisions of the Kentucky Constitution, KRS 63.080, and KRS

164.821 as set forth above, Governor Bevin has violated Section 81 of the Kentucky

Constitution.

Count IV




83. KRS 63.080(2) establishes that members of the UofL Board “shall not be


84. By issuing Executive Orders 2016-338 and 2016-391, the Governor has violated

the plain language of KRS 63.080.

Count V


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86. KRS 164.821 establishes that the UofL Board shall have seventeen members





council.”

88. By issuing Executive Orders 2016-338, 2016-339, and 2016-391 Governor Bevin

has repeatedly violated KRS 164.821 and KRS 164.005 as set forth above.

Count VI




90. KRS 12.028(2) provides Governor Bevin that he “may propose to the General

Assembly, for its approval, changes in the state government organizational structure which may

include the creation, alteration or abolition of any organizational unit or administrative body and

the transfer of functions, personnel, funds, equipment, facilities, and records from one (1)

organizational unit or administrative body to another.”

91. KRS 12.028(2) provides that the Governor may effect a temporary reorganization

“to achieve greater economy, efficiency, and improved administration as the needs of

government dictate.”

92. KRS 12.028(2) provides Governor Bevin the power to temporarily reorganize

organizational and administrative bodies “between sessions of the General Assembly,

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temporarily effect a change in the state government organizational structure as described in

subsection (1) of this section if such temporary reorganization plan is first reviewed by the

interim joint legislative committee with appropriate jurisdiction.”

93. Executive Orders 2016-338, 2016-339, and 2016-391 do not achieve greater

economy, efficiency, and improved administration.

94. Governor Bevin exceeded the statutory authority under KRS 12.028 by issuing

Executive Orders 2016-338, 2016-339, and 2016-391.

Count VII

Violations of KY. CONST. § 190 and KRS Chapter 273




Except as otherwise provided by the Constitution of Kentucky, the General

Assembly shall, by general laws only, provide for the formation, organization,

and regulation of corporations. Except as otherwise provided by the Constitution

of Kentucky, the General Assembly shall also, by general laws only, prescribe the

powers, rights, duties, and liabilities of corporations and the powers, rights,

duties, and liabilities of their officers and stockholders or members.

97. UofL is a nonstock, nonprofit corporation and pursuant to KRS 273.171 possesses

certain powers including “[t]o have and exercise all powers necessary or convenient to effect any

or all of the purposes for which the corporation is organized.”

98. The UofL Board elects its own corporate officers each year pursuant to its by-

laws, Section 2.2 (See Exhibit E, Article 2, Section 2.2).

99. Only the UofL Board can remove its corporate officers. KRS 273.231.

100. A nonstock, nonprofit corporation may only be involuntarily dissolved by a

decree of the Circuit Court under set criteria found in KRS 273.320.

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101. By issuing Executive Orders 2016-338, 2016-339, and 2016-391, the Governor

has illegally removed the statutory UofL Board’s corporate officers, which are elected pursuant

to its by-laws and operate pursuant to KRS Chapter 273. He has also exceeded his authority by

creating a new Illegal Board to govern the affairs of the University.

102. In the alternative, by issuing Executive Orders 2016-338, 2016-339, and 2016-

391, the Governor has attempted to illegally and involuntarily dissolve the statutory UofL Board,

which was created by the General Assembly and has powers under KRS Chapter 273. He has

also exceeded his authority by creating a new Illegal Board to govern the affairs of the

University.

Count VIII




104. An actual justiciable controversy exists among the parties as to whether:

A. Governor Bevin has violated KY. CONST. §§15, 23, 27-29, 81, and 190,

and KRS 63.080, 164.821, 164.005 and KRS Chapter 273 in enacting Executive Orders 2016-

338, 2016-339, and 2016-391;

B. Executive Orders 2016-338, 2016-339, and 2016-391 are null and void

because they violate the Kentucky Constitution and/or the Kentucky Revised Statutes;

105. Plaintiff is entitled to a declaratory judgment that:

A. Governor Bevin has violated KY Const. §§15, 23 27-29, 81, and 190, and

KRS 63.080, 164.821, 164.005, and KRS Chapter 273 in enacting Executive Orders 2016-338,

2016-339, and 2016-391;

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because they violate the Kentucky Constitution and/or the Kentucky Revised Statutes;

Count IX

Injunctive Relief



107. As described above, Plaintiff is entitled to further relief in the form of injunctive

relief, both temporary and permanent, restraining and enjoining the defendants, and all their

agents, attorneys and any other persons in active concert or participation with them, from

attempting to prevent or interfere with the official business of the duly appointed Trustees of the

University of Louisville.


suffered immediate and irreparable injury and will continue to so suffer unless Defendants are

immediately restrained and permanently enjoined from such activity by Order of this Court.


a court of equity.

110. No previous application for a Restraining Order or an Injunction has been refused

by any court.

111. Plaintiffs are entitled to further relief as may be shown by the evidence and legal

authority that may be presented in this proceeding. Plaintiffs reserve their right to amend this

Complaint, as necessary, to request any further relief that he is entitled to seek.

WHEREFORE, Plaintiffs demand judgment against Defendants as set forth in their

Prayer for Relief below.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiffs demand as follows:


A. Governor Bevin has violated KY. CONST. §§15, 23, 27-29, 81, and 190,

and KRS 63.080, 164.821, 164.005 and KRS Chapter 273 in enacting Executive Orders 2016-

338, 2016-339, and 2016-391 and by attempting to enforce any and all of those Orders; and


because they violate the Kentucky Constitution and/or the Kentucky Revised Statutes; and

II. That a restraining order, temporary injunction and a permanent injunction be

issued by this Court restraining and enjoining the Defendants, and all their agents, attorneys,

representatives, and any other persons in active concert or participation with them, from

attempting to prevent or interfere with the official business of the duly appointed Trustees of the

University of Louisville; and

III. Plaintiff be awarded any and all other relief to which they may appear entitled,

including their attorneys’ fees and costs.

DATE: July 5, 2016. Respectfully Submitted,


OFFICE OF THE ATTORNEY GENERAL

ANDY BESHEAR

ATTORNEY GENERAL

By: /s/ Mitchel T. Denham____________

Mitchel T Denham

Assistant Deputy Attorney General

La Tasha Buckner, Executive Director

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Office of Civil and Environmental Law

S. Travis Mayo

Joseph A. Newberg, II

Assistant Attorneys General

Office of the Attorney General

700 Capitol Avenue

Capitol Building, Suite 118


(502) 696-5300

(502) 564-8310 FAX

Counsel for Intervening Plaintiff,

Commonwealth of Kentucky

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EXHIBIT C

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0142

COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT

DIVISION I CIVIL ACTION NO. 16-CI-738

FRANKLIN C-IrCUIT COURT AMY FELDMAN, CLERK

ANDY BESHEAR, in his official capacity as Attorney General of the Commonwealth of Kentucky,

V. FINAL JUDGMENT GRANTING DECLARATORY AND INJUNCTIVE RELIEF

MATTHEW G. BEVIN, in his official capacity as Governor of the Commonwealth of Kentucky,

PLAINTIFF

DEFENDANT

This action is before the Court for a final decision on the merits following briefing,

argument, and an evidentiary hearing. Attorney General Beshear challenges a series of

Executive Orders issued by Governor Bevin purporting to "abolish and re-create" the Board

of Trustees of the University of Louisville. For reasons more fully stated below, the Court

GRANTS the Attorney General's request for declaratory relief and a permanent injunction

setting aside the Governor's Executive Orders.' The Court holds that the Governor's re-

organization power under KRS 12.028 does not extend to public universities, which the

legislature has placed outside the scope of the organizational structure of the executive branch

of government.2 The Court further holds that the Governor cannot, by unilateral action under

' The Executive Orders at issue are: 2016-338 (abolishing and re-creating the University of Louisville Board of Trustees); 2016-339 (establishing an Interim Board of Trustees); 2016-391 (appointing members to the re-constituted Board of Trustees); and 2016-512 (appointing Brian Cromer to replaced Doug Cobb, who declined appointment to the re-constituted Board of Trustees). 2 The Court must also note that the recent Supreme Court decision in Commonwealth, ex rel. Beshear v. Sevin S.W.3d 2016-SC-272 (Ky. Sept. 22, 2016) (slip opinion) compels the granting of relief to the Attorney General.

-Although that decision is not yet final, the principles adopted in that case mirror the prior ruling of this Court that public universities, as quasi-independent corporate bodies, are not directly subject to the Governor's executive power in matters of budget and organization, in the same manner as program cabinets, departments, and agencies of state government. Id. slip op. at 45-47. This ruling further reinforces this Court's prior ruling in issuing injunctive relief that the Governor's re-organization power in KRS 12.028 does not extend to public universities.

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KRS 12.028, circumvent the statutory requirement of KRS 63.080 that Board members "shall

not be removed except for cause," and the statutory requirement that any Board member the

Governor seeks to remove is entitled to a due process hearing before the Council on

Postsecondary Education under KRS 164.821(1)(b).

The Attorney General has also challenged the Governor's actions on constitutional

grounds. He argues that the Governor's unilateral executive action usurps the power of the

legislature in violation of Sections 27 and 28 of the Kentucky Constitution, that it illegally

suspends statutes in violation of Section 15 of the Kentucky Constitution, and that the

Executive Orders conflict with the Governor's mandatory duty to faithfully execute the laws

of the Commonwealth under Section 81 of the Kentucky Constitution. The Court finds that it

is not necessary to reach those constitutional issues, as the Governor's actions are outside the

scope of his re-organization power under KRS 12.028 and are in direct conflict with the

statutory provisions for removing university board members set forth in KRS 63.080 and KRS

164.821(1)(6).

FACTUAL AND HISTORICAL BACKGROUND

One undisputed fact stands out in analyzing the Governor's executive orders at issue

here: there is no legal or historical precedent for the Governor's actions in abolishing and

reconstituting the board of trustees of a public university. Never before in Kentucky history

has any Governor attempted to invoke KRS 12.028 to re-organize the administration or board

of any public university. Governor Bevin's actions purporting to abolish and re-create the

University of Louisville's Board of Trustees is entirely without precedent.

The kind of dispute which gave rise to Governor Bevin's actions—a Board of Trustees

divided over presidential leadership of a public university—is not unprecedented. Prior

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Governors, who have not been shy about asserting executive powers, have dealt with these

situations by requesting (and obtaining) resignations of board members, or have allowed the

disputes to be settled through the normal administrative and judicial processes. See, e.g.

Board of Regents of Murray State University v. Curris 620 S.W.2d 322 (Ky. App. 1981);

William E. Ellis A History of Higher Education in Kentucky 397 (2011). No prior Governor

has ever attempted to invoke the re-organization power of KRS 12.028 to address problems in

the governance of public universities.

The factual context in which these executive orders were issued reveals the depth of

the conflict between this unprecedented assertion of executive power, and the statutes that limit

the governor's authority to remove and replace board members. The Governor asserts that

KRS 63.080 and KRS 164.821(1)(6), requiring due process prior to removal of any university

board member, apply only to the removal of individual board members, and not to the complete

abolition and re-creation of the Board. By this logic, the Governor could abolish an entire

Department of state government and lay-off all of its employees without giving any employee

the right of appeal to state Personnel Board under KRS Chapter 18A. It is uncontested that the

action of the Governor removed all non-elected members of the Board of Trustees' from office.

He took this action unilaterally, without bringing any charges or granting any hearing to the

Board members.

Yet an examination of Executive Order 2016-338 reveals that it reads like a Bill of

Particulars, charging the Board members with a host of allegations of misconduct, neglect, and

malfeasance. It alleges the Board members "acted in a manner that manifests a lack of

3 Board representatives elected by faculty, staff, and students remained on the Board after the re-organization.

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transparency and professionalism"; it alleges the Board members "have become operationally

dysfunctional"; and it alleges "certain Trustees" had a "strained relationship" with "University

administration, which is seriously damaging the entire University community."

These charges malign the integrity and competence of Board members. Further, the

charges were leveled by the Governor with no notice to Board members of the charges, no

opportunity to contest their validity, and no recourse whatsoever, solely by the unilateral fiat

of the Governor. In adopting the Executive Order, the Governor bypassed the statutory

requirements for due process. He served as judge, jury, and executioner of the incumbent

Board without any legal process to determine the merits of the charges, which, of necessity,

were based on individual actions of board members.

The Governor did not testify in this case, nor did he offer any affidavit to explain his

actions. But he did produce correspondence from former President James Ramsey, which was

admitted into evidence. That correspondence confirms that Dr. Ramsey offered to submit his

resignation as University president conditioned upon the Governor's removal of the Board of

Trustees.4 As the Court noted in its ruling granting a Temporary Injunction, this letter gives

rise to the appearance that Dr. Ramsey negotiated his departure as president directly with the

Governor in exchange for the Governor's agreement to fire the Board.5 The Governor has

offered no other explanation of his actions. Accordingly, the Court makes a factual finding,

based on the only evidence in the record, that the Governor improperly agreed to fire and

replace the Board of Trustees as a condition of obtaining Dr. Ramsey's agreement to resign.

° Letter from Dr. James Ramsey to Governor Bevin, June 16, 2016 (Exhibit I1 from Hearing on Temporary Injunction). 5 "Upon a legal restructure of the Board of Trustees at the University of Louisville, 1 will immediately offer, to the newly appointed board, my resignation/retirement as President of the University of Louisville."

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This action by the Governor violates KRS 164.821, which provides "Mlle government of the

University of Louisville is vested in a board of trustees appointed for a term set by law pursuant

to Section 23 of the Constitution of Kentucky."

Almost immediately after the meeting between Dr. Ramsey and Governor Bevin, the

Governor issued the executive orders that are the subject of this action, and called a press

conference to announce Dr. Ramsey's agreement to resign.' Thereafter, the Southern

Association of Colleges and Schools (SACS), the accrediting agency for the University of

Louisville, notified the University that it was undertaking a review of whether those executive

orders were in violation of the Universities obligations to maintain accreditation.' Following

the University's initial response to this letter, SACS President Whelan indicated that the impact

of the executive orders on the University's accreditation was still an issue, and would be further

reviewed under SACS procedures.' It is clear from these letters from SACS that the

Governor's actions have placed the University of Louisville in jeopardy of sanctions affecting

its accreditation. If the Governor's assertion of unlimited power to abolish and re-create a

public university board under KRS 12.028 during the legislative interim is upheld, it is unclear

how the University can avoid sanctions. Again, it appears that such unilateral action by a

Governor is unprecedented.

See John Gregory, News of the Week: June 17, 2016, KET (June 18, 2016, 10:00AM), http://www.ketorg/public-affairs/news-of-the-week-iune-17-2016P Gov. Matt Bevin Charts Course for Fresh Sian at University of Louisville Board, httn://lcentuelcv.gov/Paces/Activity-stream.asox?n=KentuckyGovernoretorld=104 (last visited Sept. 28, 2016).

Letter from SACS President Belle Whelan to Dr. Ramsey, June 28, 2016 (Commonwealth Exhibit 6, Hearing, 9/15/16).

Letter from SACS President Belle Whelan to Acting President Pinto, August 18, 2016 (Commonwealth Exhibit 7, Hearing 9/15/16).

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In response to the Attorney General's motion for injunctive relief, the Governor has

also raised an issue regarding the lack of minority representation on the Board, and lack of

political party balance on the Board, as required by ICRS 164.821(5). The Governor implies

that his action in abolishing the Board was justified because the Board did not have enough

racial minorities and was not politically balanced. The Governor has not, however, asserted

any claim, or counter-claim raising this issue for formal adjudication. Executive Order 2016-

338 contains a comprehensive listing of the Governor's findings of problems that justify his

abolition of the Board, but it does not list political party and minority representation on the

Board as a basis for the executive order abolishing the Board. Moreover, any alleged problem

with minority representation can be cured forthwith by the Governor's compliance with his

existing commitment to fill existing vacancies on the Board with minority members. See

Kentucky Justice Resource Center, Inc. v. Governor Matt Bevin Franklin Cir. Ct. No. 15-C1-

1146 (Settlement Agreement filed of record, March 18, 2016). Likewise, any imbalance in

political party representation can be cured, either immediately or over the next appointment

cycle, by the filling of Board vacancies with members of the Republican Party.9

LEGAL ANALYSIS

The statute governing the University of Louisville provides that "Board members may

be removed by the Governor for cause, which shall include neglect of duty or malfeasance in

9 Republican Governor Ernie Fletcher, when faced with a similar claim of disproportionate appointments of Republican university board members, argued that any such problems must be cured over time with new appointments to bring the boards into balance. Commonwealth ex rel. Stumbo v. Fletcher Franklin Cir. Ct. No. 07-CI-1456. That case was settled with an agreement between Governor Beshear and Attorney General Conway, providing for the Governor to appoint a disproportionate share of Democrats to university Board vacancies, until the statutory balance between political parties was achieved. The Governor was further required to maintain that balance once it was achieved, an obligation which apparently has remained unenforced. No request for relief concerning political party balance has ever been brought before this Court, either in a motion to re-open the Fletcher case or in any new proceeding, including this one.

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office, after being afforded a hearing with counsel before the Council on Postsecondary

Education and a finding of act by the council." KRS 164.821(1)(6). Likewise, KRS 63.080(2)

provides that members of the board of trustees of public universities, including the University

of Louisville, "shall not be removed except for cause." Here, the Governor removed all

appointed members of the Board without cause, and without any hearing or finding of fact,

through the exercise of his re-organization power under KRS 12.028. If the Governor's re-

organization power under KRS 12.028 gives him the power he asserts here to unilaterally

abolish the Board during the legislative interim, and thus remove and replace all Board

members, then the protections for Board members explicitly enacted into law in KRS

164.821(1)(b) and KRS 63.080(2) are rendered meaningless.

The Governor relies heavily on the decision of the Court of Appeals in Galloway v.

Fletcher 241 S.W.3d 819 (Ky. App. 2007), which held that the Governor could reject a list of

nominees submitted by the Postsecondary Education Nominating Committee for a university

board, and require the Committee to submit another list of nominees more acceptable to the

Governor. That issue is not presented in this case, but the Governor argues that the holding of

Galloway that KRS 12.070 (the statute that allows the Governor to reject lists of nominees)

applies to university board appointments should be construed to mean that all of KRS Chapter

12, including the re-organization powers in 'CRS 12.028, applies to public universities.

The Court finds Galloway inapplicable for the following reasons. First, public

universities were removed from the organizational structure of the executive branch of state

government in 1952. 1952 Ky. Acts, c. 41, Section 1. After the 1952 legislation removing

state universities from the executive branch's organizational structure, the Governor retained

the power to appoint university board members. Thus, the holding of Galloway stipulating

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that the Governor is not required to appoint nominees from the initial list submitted to him by

the Postsecondary Education Nominating Committee, in no way implies that the Governor has

the right to abolish a university board or to re-organize a university to board to replace all

members under a different statute, KRS 12.028. Kentucky law has long recognized that "the

power of removal . . . is not an incident to the power of appointment... ." Voeteler v. Fields

23 S.W.2d 588 (Ky. 1926). Nor is the power to re-organize "an incident to the power of

appointment." In short, the fact that the Governor retains one power related to public

universities does not bring those institutions within the scope of KRS Chapter 12 for all

purposes.

KRS 12.070(3) simply provides that "[w]here appointments to administrative boards

and commissions are made from lists submitted to him, the Governor may reject the list and

require that other lists be submitted." KRS 12.070(3). The application of this statute on

gubernatorial appointments does not in any way alter the restrictions on the Governor's power

to remove board members under KRS 63.080 and KRS 164.821, nor does it bring university

board within the scope of the organizational structure subject to KRS 12.028. No one disputes

that the Governor has the power to appoint board members, but Galloway stands only for the

proposition that the Governor has the same power to reject nomination lists for university

boards that he has for all other administrative boards.

Moreover, a careful reading of Galloway demonstrates that it was decided on the

assumption that the application of KRS 12.070 was "immediately obvious" without any

consideration of the statutory history that demonstrates the separation of state universities from

the organizational structure of the executive branch in 1952. Galloway 241 S.W.3d at 822-

23. Galloway stands for nothing more than the proposition that when the legislature requires

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the Governor to make appointments from a list submitted by a nominating group, the Governor

can reject a list that fails to include names suitable to the Governor. This has been the law in

Kentucky for almost seventy years. Elrod v. Willis 203 S.W.2d 18 (Ky. 1947)• see also

Kentucky Ass'n of Realtors, Inc. v. Musselman 817 S.W.2d 213 (Ky. 1991).10 It has no

bearing whatsoever on the Governor's re-organization power.

The Governor's assertion of unlimited power, during the legislative interim, to abolish

a Board, composed of members who can only be removed for cause, would completely defeat

the protection of Board members from partisan political interference for discharging their

fiduciary duties. The unlimited power to "abolish and re-create" this Board is wholly

inconsistent with the statutes that explicitly limit the Governor's power to remove university

board members. Such control would establish a dangerous precedent that invites the abuse of

power.

This Court does not doubt Governor Bevin's good intentions in adopting these

executive orders. But if the Court adopts his interpretation of the re-organization statute, there

would be nothing to stop a future governor from employing it to destroy a university board as

a means of political retaliation, or to extort some economic advantage, or for other motives

that are not in the public interest. The concept of unchecked political power asserted by the

Governor is wholly inconsistent with our statutory framework for university boards. Such

unlimited and unilateral power is also flatly inconsistent with our constitutional system of

checks and balances that requires executive power to be checked by statutory limitations.

10 Musselman held without reference to KRS 12.070, that "the Governor may reject all the names on the listed provided by the Association and forego making an appointment until provided with a list that includes a person whom the Governor deems suitable for appointment to the office." Id. at 214. Accordingly, the law in Kentucky seems clear that the Governor has the right to reject nominations lists regardless of KRS 12.070 or any other provision of KRS Chapter 12.

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Here, the legislature, as a part of sweeping higher education reforms, placed limits on the

power of the Governor to remove university board members. 1997 (1st Extra. Sess.) Ky. Acts,

ch. 1, sec. 41, sec. 125. The Governor cannot circumvent these limits by use of his re-

organization power.

As noted in the Governor's brief, courts have a duty to construe statutes in harmony so

that interpretations that create conflicts between statutes are avoided. The Supreme Court

recently reiterated this principle in the University budget cut case: "It is unquestionable 'that

where two statutes are in apparent conflict, their inconsistencies should be reconciled if

possible.' I Here, the most logical way to interpret the re-organization statute (KRS 12.028)

to be in harmony with the higher education statutes that prohibit removal of university board

members except for cause (KRS 63.080), and after a due process hearing (KRS 164.821(1)(6)),

is to hold that the re-organization statute does not apply to public universities.

A close examination of the statutory history of Kentucky's public universities reveals

that this is the correct interpretation of KRS 12.028. The simple reason no other governor has

ever invoked the re-organization power of KRS 12.028 in connection with public universities

is that these institutions of higher education, since 1952, have been recognized as "public

corporations, having a separate existence from the main body of state government"' separated

from the organizational structure of the executive branch of state government. 1952 Ky. Acts,

" Commonwealth, ex re/.Beshear v. Bevin supra, note 2, at 39. " Id. at 45.

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ch. 41, Section 1.13 It is clear that public universities were removed from the organizational

structure of the executive branch of state government by the General Assembly.'

A careful reading of the definitions set forth in KRS 12.010 finds that there is absolutely

no mention of public universities as organizational units that are subject to KRS Chapter 12,

which is entitled "Administrative Organization." KRS 12.020 contains an exhaustive list of

every division, department, board, agency, and cabinet in state government. It contains no

mention of public universities. It does state that the enumeration of all such agencies "is not

intended . . . to be all inclusive" but KRS 12.015 clarifies that Chapter 12 applies only to

administrative bodies within the organizational structure of state government, not quasi-

independent public institutions such as public universities. As explained in ICES 12.015, "each

administrative body established by statute or statutorily authorized executive action shall be

included for administrative purposes in an existing department or program cabinet." Public

universities, since 1952, have not been "included for administrative purposes in an existing

department or program cabinet," and thus are outside the purview of the Governor's re-

organization power in KRS 12.028.

A close examination of the applicable statutes fully supports this legal conclusion.

Public universities simply do not fall within the definitions of KRS 12.010 and KRS 12.015,

nor are they listed in the organizational chart enacted in KRS 12.020. Public universities are

13 Prior to the enactment of Senate Bill 113 in 1952, all state universities were listed in the organizational structure of the executive branch of state government as divisions of the Department of Education under KRS 156.010(3) (Carroll's Kentucky Statutes 1934-52). See also Public Higher Education in Kentucky, 117 Research Publication 25, Legislative Research Commission (1951). Findings of Fact, ##20-22, Temporary Injunction, July 29, 2016. 14 A contemporaneous Legislative Research Commission report demonstrates that the immediate reason for the removal of universities from the organizational structure of the executive branch in 1952 was that the salary limitations on state government employees were incompatible with the need for universities to hire qualified professors, officers and employees. See "Public Higher Education in Kentucky", p. 117. Research Publication #25, Legislative Research Commission (1951).

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institutions of a different kind and class than operational units of the executive branch of

government such as Cabinets, Departments, Divisions, Boards and Commissions. Thus, public

universities are excluded from the scope of KRS 12.028 by the rule of statutory construction

that "the meaning of general words ordinarily will be presumed to be restricted by the

particular designation, and to include only things or persons of the same kind, class or nature

as those specifically mentioned." Steinfield v. Jefferson County Fiscal Court 229 S.W.2d 319,

320 (Ky. 1950). In the definitions section of KRS Chapter 12, there is no mention of any

organizational unit that includes a public university. KRS 12.010. The next section of Chapter

12 stipulates that all "administrative bodies" must be included in a Department or Cabinet,

which universities clearly are not. KRS 12.015. In the actual statutory enumeration of

administrative bodies subject to KRS Chapter 12, there is no mention of public universities.

KRS 12.020. It is abundantly clear from the statute itself that public universities are

institutions of a different kind, class, and nature than the operational units of state government

subject to KRS Chapter 12.

The Governor's primary power with regard to public universities is the power of

appointment of board members. Unlike administrative bodies of state government, the

Governor does not hire or fire, or even approve the hiring or firing, of administrators,

professors, staff or other personnel. Unlike the executive branch of state government, the

Governor does not control university budgeting, purchasing, or capital construction." The

governance of public universities has been carefully structured to insulate institutions of higher

15 See KRS 164A.555 to .630, which provide for internal financial management of public universities, separate from the normal financial management requirements of KRS Chapters 45 and 45A for the executive branch of state government. See also Commonwealth ex reL Beshear v. Bevin supra, note 2, at 39-41.

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education from the direct influence of partisan politics. The Governor's assertion of the right

to unilaterally abolish and re-create the Board of Trustees during the interim between

legislative sessions is wholly inconsistent with the statutory framework of higher education in

Kentucky, and specifically with KRS 63.080 and KRS 164.821(1)(6).

The Governor has also argued that Executive Orders are immune from judicial review

because "the Governor's authority to reorganize an administrative body pursuant to KRS

12.028 is a 'purely . . . executive function' when exercised in the interim between legislative

sessions,' citing Legislative Research Com'n By and Through Prather v. Brown, 664 S.W.2d

907 (Ky. 1984). While re-organization of administrative bodies may be an executive function,

all executive action is subject to judicial review for compliance with statutory mandates.

Brown held that executive orders are not subject to a legislative veto. It did not hold they were

beyond the scope of judicial review. To the contrary, the Court in Brown squarely held that

that the review of executive actions for compliance with statutory authority was a judicial and

not a legislative function: "It requires no citation of authority to state unequivocally that such

a determination is a judicial matter and is within the purview of the judiciary, the Court of

Justice." Id. at 919.'7

To the extent that the Governor has attempted to raise the issue of lack of minority

and political party representation on the incumbent Board of Trustees as a basis to deny

declaratory and injunctive relief, the Court finds that the public interest requires that the Board

of Trustees of the University of Louisville must continue to function as the governing body of

16 Defendant's Post-Trial Brief; Sept. 21, 2016, at I 17 This holding of Brown was adopted in reference to the legislature's attempt to review administrative regulations promulgated by the executive branch for compliance with statutory authority. The same principle is clearly controlling with regard to judicial review of executive orders.

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the University as required under KRS 164.821. Any non-compliance with the statutory

requirements for minority representation, or political party representation, can and should be

cured by the Governor himself through exercising his appointment power. He currently has

the ability to name minority members of the Board that would achieve the requirements of

KRS 164.821(5). He currently has the power to name up to four, or perhaps five, Republican

members of the Board that would substantially cure any existing problem with political party

representation, and to complete this process by appointing additional Republican members

over the next appointment cycle.

The Governor has failed to cite any statute or other legal grounds to support any

argument that the current Board lacks full legal authority to discharge its statutory duties.

Until the Governor has fulfilled his own duty to make appointments consistent with KRS

164.821(5), he is equitably estopped from asserting this issue as a defense to the Attorney

General's claims. He is currently under a legal obligation, which he has not fulfilled, to appoint

additional minority members of the University of Louisville Board of Trustees." A time

honored maxim of the law of equity is "he who seeks equity must do equity." Gabbard v. Truett

283 S.W.2d 833, 835 (Ky. 1955). The Governor has an adequate remedy at law for any non-

compliance with the minority and political party representation requirements on the University of

Louisville Board of Trustees. All he needs to do is to exercise his power of appointment to bring

the Board into compliance. He has the authority to bring the Board into compliance on minority

members immediately.'

18 Kentucky Justice Resource Center. Inc. v. Governor Matthew Bevin Franklin Cir. Ct., No. 15-CI- I 146, Settlement Agreement dated March 18,2016. "The Settlement Agreement, signed by the Governor, provides that the Governor will appoint two additional minority members of the Board, and that such action "will take place as soon as possible after the [Postsecondary Education Nominating] Committee makes its recommendations to the Governor." This Court denied a motion for a restraining

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Finally, the Attorney General has also raised significant questions regarding the

constitutionality of the Governor's actions here. The Governor's unilateral re-organization of

the University's Board raises important separation of powers issues under Sections 27 and 28

of the Kentucky Constitution, and it also raises issues concerning whether the Governor's

actions violated the prohibition against suspension of laws (Section 15), and requiring faithful

execution of the laws (Section 81). In light of the Court's ruling that that the re-organization

statute does not include public universities within its scope, and that the challenged re-

organization violates KRS 63.080 and KRS 164.821(1)(b) regarding the removal of university

board members, it is not necessary to adjudicate these constitutional issues. As the Court held

in Stephenson v. Woodward 182 S.W.3d 162 (Ky. 2005), Courts should avoid deciding

constitutional issues if a case can be decided solely on statutory grounds. Id. at 168. As Justice

Brandeis summarized this rule, "if a case can be decided on either of two grounds, one

involving a constitutional question, the other a question of statutory construction or general

law, the Court will decide only the latter." Ashwander v. TVA, 297 U.S. 288, 347 (1935)

(Brandeis, J., concurring). Accordingly, this Court must decline to address the constitutional

issues in this case.

CONCLUSION

For the reasons stated above, the Court GRANTS the Attorney General's motion for

declaratory and injunctive relief under KRS 418.040 and CR 65, and IT IS ORDERED AND

ADJUGED as follows:

order under CR 65.03 to restrain the University of Louisville's Board of Trustees from conducting business until Governor Bevin has fulfilled his duty to make the minority appointments to the Board required by the settlement agreement. Opinion and Order, No. 15-CI-1146, Aug. 25, 2015. While those minority appointments should be made forthwith by the Governor, his failure to do so cannot result in institutional gridlock, and the public interest requires that the Board must continue to function until all legal issues in this case are fully resolved.

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1. The Governor's Executive Orders, ##2016-338, 2016-339, 2016-391, and 2016-512

are hereby PERMANENTLY ENJOINED and SET ASIDE;

2. This Court's Temporary Injunction, issued July 29, 2016, is incorporated by

reference, and adopted as part of this Final Judgment to the extent it is not modified

herein, pursuant to CR 54.02;

3. The defendant Governor Matthew Bevin, and his agents, employees, and all other

persons acting in concert with him, are PERMANENTLY ENJOINED from

implementation of the Executive Orders that are the subject matter of this action,

and are further PERMANENTLY ENJOINED from interfering with, or

obstructing in any way, the lawful operation and governance of the incumbent

University of Louisville Board of Trustees who were duly appointed under the

provisions of KRS 164.821 prior to the filing of the Executive Orders that are set

aside by this judgment;

4. The Court finds and declares pursuant to KRS 418.040 and CR 57 that public

universities, including the University of Louisville, are outside the scope of the

Governor's power to re-organize the executive branch of government under KRS

12.028;

5. The Court finds and declares pursuant to KRS 418.040 and CR 57 that the

Governor's actions which resulted in the removal of all gubernatorial appointees to

University of Louisville Board of Trustees under Executive Order 2016-338

violated the requirements of KRS 63.080 and KRS 164.821(1)(b). The Court finds

and declares that university Board members cannot be removed except for cause,

and after a due process hearing before the Council on Postsecondary Education.

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Accordingly, even if public universities are included within the scope of the

Governor's re-organization power under KRS 12.028, that power does not allow

the Governor to circumvent the requirements for removal of university trustees

under KRS 63.080 and KRS 164.821(1)(b).

6. This is a final and appealable order and there is no just cause for delay in the entry

of this judgment.

IT IS SO ORDERED this) day of September, 2016.

PHILLI J. Al ia( 0


DISTRIBUTION:

Attorney General Andy Beshear Hon. Mitchel T. Denham Hon. La Tasha Buckner Hon. S. Travis Mayo Office of the Attorney General State Capitol, Suite 118 700 Capital Avenue Frankfort, Kentucky 40601

Hon. Stephen Pitt, General Counsel Hon. Chad Meredith, Deputy General Counsel Office of the Governor State Capitol, Suite 100 700 Capital Avenue Frankfort Kentucky 40601

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EXHIBIT D

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DIVISION ___

CIVIL ACTION NO. 17-CI-_______

COMMONWEALTH OF KENTUCKY PLAINTIFF

ex rel. ANDY BESHEAR, ATTORNEY GENERAL

v.

MATTHEW G. BEVIN, in his official capacity as DEFENDANT

Governor of the Commonwealth of Kentucky


The Capitol Building

700 Capitol Avenue


HAL HEINER, in his official capacity as Secretary DEFENDANT

of the Education and Workforce Development Cabinet


The Capitol Building

700 Capitol Avenue


COMPLAINT FOR DECLARATION

OF RIGHTS AND A PERMANENT INJUNCTION

*** *** *** *** *** *** *** ***

Comes the Plaintiff, Commonwealth of Kentucky ex rel. Andy Beshear, Attorney General

(hereinafter “Attorney General”), by and through counsel, and brings this action for a permanent

injunction and declaration of rights against the Defendants, Matthew Griswold Bevin, in his

official capacity as Governor of the Commonwealth of Kentucky, and Hal Heiner, in his official

capacity as Secretary of the Commonwealth of Kentucky Education and Workforce Development

Cabinet. A ruling by this court is required to stop Governor Bevin’s unlawful and unconstitutional

actions that seek to control the decisions of statutorily independent state boards.

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2

INTRODUCTION

Governor Bevin claims “absolute authority” to dissolve and/or reorganize any of the more

than four hundred (400) state boards. Governor Bevin has exercised this authority in an

unprecedented and abusive fashion, dissolving, altering, or reorganizing thirty-seven (37) state

boards in just his first twenty (20) months in office.1 In June of 2016, Governor Bevin took the

unprecedented step of attempting to abolish and “reorganize” two of the Commonwealth’s most

prominent boards: the Kentucky Retirement Systems Board of Trustees and the University of

Louisville Board of Trustees.

These actions resulted in litigation before the Franklin Circuit Court. The Kentucky

Retirement Systems matter is currently pending before the trial court. In the University of

Louisville matter, the Franklin Circuit Court ruled that KRS 12.028 does not apply to the

independent and autonomous governing boards of the Commonwealth’s public universities. The

Governor’s appeal is pending before the Kentucky Supreme Court.

The University of Louisville matter shows the dangers of the Governor’s “absolute

authority.” There, the Governor’s purging of the board’s trustees resulted in significant damage

to the university. His conduct specifically caused the university’s accreditation to be placed on

probation, threatening federal student aid, federal research dollars, and even NCAA eligibility.

Undeterred by either of these lawsuits or the serious ramifications of his actions, on June

2 and June 16, 2017, Governor Bevin again exercised his “absolute authority,” reorganizing

numerous autonomous education boards. In these reorganizations, Governor Bevin again purged

dozens of board members, attempted to change the boards’ statutory structures and experience

1 See Exhibit A (List of affected boards and the executive orders that reorganized them).

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requirements, and re-wrote statutory provisions in a manner to provide the Governor with more

power and control than the General Assembly granted.

Specifically, the Governor issued Executive Order 2017-364 (the “Executive Order”

attached hereto as Exhibit B). The Executive Order alters or abolishes and then recreates the

following seven (7) statutory education boards:

Kentucky Board of Education;

Council on Postsecondary Education;

Standards and Assessments Process Review Committee;

School Curriculum, Assessment and Accountability Council;

Education Professional Standards Board;

Reading Diagnostic and Intervention Grant Steering Committee;

State Advisory Council for Gifted and Talented Education; and

Executive Order 2017-364 demonstrates that Governor Bevin believes he has unlimited

discretion under KRS 12.028 to ignore, suspend, or materially alter the law, or even create new

law. Accordingly, a ruling on the constitutionality of KRS 12.028 as it relates to independent state

boards is imperative. With this Complaint, the Attorney General asks the Court to declare that the

Governor’s use of KRS 12.028 violates the Kentucky Constitution. Such a ruling is necessary as

the Governor is in the process of reorganizing an additional thirty-nine (39) boards to remove their

statutory independence and grant the Governor even more power.

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NATURE OF THE ACTION

1. This Complaint for Declaration of Rights and a Permanent Injunction is governed

by the Kentucky Declaratory Judgment Act, KRS 418.010, et seq., Kentucky Rule of Civil

Procedure (“CR”) 57, and CR 65; the Attorney General initiates this Complaint pursuant to his

authority under the Kentucky Constitution, KRS Chapter 15, and the common law.

2. KRS 418.040 provides this Court with authority when a controversy exists to “make

a binding declaration of rights, whether or not consequential relief is or could be” requested. An

actual and justiciable controversy concerning violations of Kentucky constitutional and statutory

law clearly exists in this action.

3. Under CR 65, this Court has authority to issue a permanent injunction that restricts

or mandatorily directs the performance of an act.

4. The Commonwealth requests an expedited review pursuant to KRS 418.050 and

CR 57. At 10:30 a.m. on June 7, 2017, David Dickerson, Secretary of the Public Protection

Cabinet, Gail Russell, Deputy Secretary of the Public Protection Cabinet, and Barry Dunn, General

Counsel to the Public Protection Cabinet, appeared before the 2017 Interim Joint Committee on

Licensing, Occupations, and Administrative Regulations at the Northern Kentucky Convention

Center to present a plan for Governor Bevin to use KRS 12.028 to issue multiple executive orders

to reorganize thirty-nine (39) additional state boards in the next thirty (30) days.2 The Governor’s

2 As discussed by the representatives of the Public Protection Cabinet before the Interim Joint Committee, the

Governor will reorganize the following boards: the State Board of Medical Licensure, the Board of Nursing, the

Kentucky Board of Optometric Examiners, the State Board of Podiatry, the Kentucky Board of Dentistry, the

Kentucky Board of Pharmacy, the Kentucky State Board of Chiropractic Examiners, the Board of Physical Therapy,

the Kentucky Board of Licensure for Occupational Therapy, Board of Speech-Language Pathology and Audiology,

the Board of Respiratory Care, the Kentucky Board of Licensure for Massage Therapy, the Kentucky Board of

Licensure and Certification for Dietitians and Nutritionists, the Kentucky Board of Interpreters for the Deaf and

Hard of Hearing, the Kentucky Board of Licensed Diabetes Educators, the Kentucky Board of Embalmers and

Funeral Directors, the State Board of Accountancy, the Kentucky Board of Veterinary Examiners, the Kentucky

Board of Licensure for Private Investigators, the Kentucky Board of Licensure for Long-term Care Administrators,

the Kentucky Board of Barbering, the Kentucky Board of Hairdressers and Cosmetologists, the Kentucky Board of

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continuous and repeated use of his claimed “absolute authority” to reorganize state administrative

bodies and rewrite state law makes a decision regarding the constitutionality of KRS 12.028 and/or

the limits of the Governor’s authority under the statute imperative. Time is of the essence, as this

justiciable controversy presents questions of immediate concern that must be resolved promptly in

order to prevent further harm to state constitutional and statutory law and state boards.

Additionally, as this case involves only disputed issues of law, and no disputed issues of fact will

necessitate discovery, the Court can proceed directly to the merits without cause for delay.

5. This is an action brought to declare that KRS 12.028 is unconstitutional as used by

the Governor to “reorganize” independent state boards and administrative bodies that are created,

structured, and governed by statute.

6. This is also an action to declare Executive Order 2017-364 unconstitutional,

unlawful, null, void, and of no effect.

7. This is also an action to enjoin Governor Bevin and Secretary Hal Heiner, and all

of their agents, attorneys, representatives, and any other persons in active concert or participation

with them, from implementing, enforcing, or otherwise taking action pursuant to Executive Order

2017-364.

Prosthetics, Orthotics, and Pedorthics, the Kentucky Board for Medical Imaging and Radiation Therapy, the

Kentucky Board of Ophthalmic Dispensers, the Kentucky Board of Durable Medical Equipment Suppliers, the

Kentucky Licensing Board for Specialists in Hearing Instruments, the Board of Examiners of Psychology, the Board

of Alcohol and Drug Counselors, the Kentucky Board of Licensure for Professional Art Therapists, the Kentucky

Board of Licensed Professional Counselors, the Kentucky Board of Licensure of Marriage and Family Therapists,

the Kentucky Board of Social Work, the Kentucky Board of Licensure for Pastoral Counselors, the Kentucky

Applied Behavior Analysis Licensing Board, the Kentucky Board of Architects, the Kentucky Board of Landscape

Architects, the State Board of Licensure for Professional Engineers and Land Surveyors, and the Board of

Registration for Professional Geologists. See “Proposed Reorganization of General Government Licensing Boards,”

Public Protection Cabinet, PowerPoint (attached hereto as Exhibit C).

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PARTIES

8. The Plaintiff, Commonwealth of Kentucky ex rel. Andy Beshear, is the

Commonwealth’s duly elected Attorney General, a constitutional office under Sections 91, 92, and

93 of the Kentucky Constitution. Pursuant to KRS 15.020, General Beshear is the chief law officer

of the Commonwealth and all of its departments, commissions, agencies, and political

subdivisions. General Beshear is duly authorized by the Commonwealth’s constitutional,

statutory, and common law, including his parens patriae authority, to enforce Kentucky law. As

Attorney General, he has authority to bring actions for injunctive and other relief to enforce the

Kentucky Constitution and the Commonwealth’s statutes and regulations, including authority to

bring an action against the Governor and other state agencies for injunctive relief. See KY. CONST.

§ 91; KRS 15.020.

9. The Defendant, Governor Matthew Griswold Bevin, is a duly elected constitutional

officer of the Commonwealth of Kentucky, vested with – but limited by – such powers as are

afforded him by the Kentucky Constitution and related state laws. The Governor is the chief

executive officer of the Commonwealth charged by Section 81 of the Kentucky Constitution with

taking care that the laws of the Commonwealth be “faithfully executed.”

10. The Defendant Hal Heiner (“Secretary Heiner”) is a program cabinet Secretary

named in his official capacity as Secretary of the Commonwealth of Kentucky Education and

Workforce Development Cabinet.

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jurisdiction over the action pursuant to KRS 418.040, KRS 23A.010, CR 57, and CR 65.

12. Venue is appropriate in this Court pursuant to KRS 452.405, since the primary

offices of the Attorney General, the Governor, and Secretary Heiner are located in Frankfort,

Franklin County, Kentucky. Additionally, this action generally relates to violations of various

Kentucky constitutional provisions and statutes that were either determined or accomplished in

Frankfort, Franklin County, Kentucky. This action also generally relates to violations of the

Kentucky Constitution occurring in Frankfort, Franklin County, Kentucky.

13. Pursuant to KRS 418.040, et seq., this Court properly may exercise in personam


FACTUAL BACKGROUND

14. On June 2, 2017, Governor Bevin issued Executive Order 2017-334.

15. Citing KRS 12.028 as authority, Executive Order 2017-334 created the Charter

Schools Advisory Council and altered or abolished and recreated the following seven (7) statutory

education boards: Kentucky Board of Education; Council on Postsecondary Education; Standards

and Assessments Process Review Committee; School Curriculum, Assessment and Accountability

Council; Education Professional Standards Board; Reading Diagnostic and Intervention Grant

Steering Committee; and State Advisory Council for Gifted and Talented Education.

16. On June 7, 2017, the Attorney General announced and specifically communicated

to the Governor that Executive Order 2017-334 was unconstitutional and unlawful and granted the

Governor seven (7) days to rescind his action.

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17. On June 14, 2017, the Governor indicated that he intended to amend the Executive

Order by Friday, June 16, 2017.

18. On June 16, 2017, Governor Bevin issued Executive Order 2017-364.

19. Executive Order 2017-364 rescinded and superseded Executive Order 2017-334.

However, it did not significantly change the Governor’s unconstitutional and unlawful actions with

respect to the seven (7) statutory education boards listed above.

Education Professional Standards Board

20. The Education Professional Standards Board was created by KRS 161.028.

21. In its first provision, KRS 161.028 recognizes that the Education Professional

Standards Board is meant to be independent, stating it is “a public body corporate and politic and

an agency and instrumentality of the Commonwealth, in the performance of essential

governmental functions.” KRS 161.028(1).

22. The Board’s powers and duties are critical, and involve “[e]stablishing standards

and requirements for obtaining and maintaining a teaching certificate[.]” KRS 161.028(1)(a).

23. Executive Order 2017-364 abolishes the Education Professional Standards Board,

causing the terms of all of its members serving prior to the order to “expire and cease to exist”.

(EO 2017-364, ¶ XXV).

24. The Executive Order then re-creates the Board with largely the same powers and

duties. (See id. at ¶¶ XXVI and XXVIII).

25. The Governor’s actions in abolishing the Education Professional Standards Board,

purging its membership, and then reforming the Board violate the independence mandated by KRS

161.028(1).

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26. KRS 161.028(1)(n) also provides the Education Professional Standards Board with

independence, stating that it is the Board’s “responsibility” to “[r]ecruit, select, employ and

evaluate” its own executive director.

27. Executive Order 2017-364 removes this statutory authority from the Education

Professional Standards Board and instead gives the Governor the sole authority to appoint the

Board’s executive director, ignoring, suspending, and rewriting KRS 161.028(1)(n). (EO 2017-

364, ¶ XXVII).

28. KRS 161.028(2)(a) provides the Board independence by limiting the Governor’s

appointment power, stating the Governor’s appointees to the Education Professional Standards

Board “shall” meet certain statutory criteria. (Emphasis added).

29. Specifically, under KRS 161.028(2)(a), the Governor must appoint to the Board:

1. Nine (9) members who shall be teachers representative of

elementary, middle or junior high, secondary, special education,

and secondary vocational classrooms;

2. Two (2) members who shall be school administrators, one (1) of

whom shall be a school principal;

3. One (1) member representative of local boards of education; and

4. Three (3) members representative of postsecondary institutions,

two (2) of whom shall be deans of colleges of education at public

universities and one (1) of whom shall be the chief academic

officer of an independent non-for-profit college or university.

30. Executive Order 2017-364 ignores, suspends, and rewrites the criteria the

Governor’s appointees must satisfy, providing an entirely different criteria list.

31. Specifically, under the Executive Order, the Governor must appoint the following:

one (1) elementary school teacher; one (1) middle school teacher; one (1) high school teacher; one

(1) science, technology, engineering, or mathematics teacher; one (1) arts and humanities teacher;

one (1) exceptional education teacher; one (1) career and technical education professional; one (1)

principal or school administrator; one (1) school counselor or psychologist; one (1) faculty member

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of a private postsecondary institution; one (1) faculty member of a public postsecondary

institution; one (1) dual appointee of the School Curriculum, Assessment and Accountability

Council; and one (1) parent or member-at-large. (See EO 2017-364, ¶ XXVI).

32. The Executive Order thus ignores, suspends, and rewrites KRS 161.028(2)(a),

replacing the judgment of the General Assembly with the judgment of the Governor.

33. KRS 161.028(2)(a) sets out the mandatory structure for the Board.

34. Under KRS 161.028(2)(a), the Education Professional Standards Board “shall” be

composed of seventeen (17) members, including fifteen (15) members appointed by the Governor.

(Emphasis added).

35. The Executive Order ignores, suspends, and rewrites the law, reducing the Board’s

membership to fifteen (15), thirteen (13) of which are gubernatorial appointees. (EO 2017-364, ¶

XXVI).

36. Of critical importance, the Executive Order changes the statutory process of teacher

discipline, removing the statutory right to immediately appeal an administrative ruling to Franklin

Circuit Court.

37. Specifically, under KRS 161.120(1), the Education Professional Standards Board

has the authority to take disciplinary action relating to the certificates it issues.

38. Pursuant to KRS 161.120(5)(a), the Board:

shall schedule and conduct a hearing in accordance with KRS Chapter 13B:

1. Before revoking, suspending, refusing to renew, imposing

probationary or supervisory conditions upon, issuing a written

reprimand, or any combination of these actions regarding any

certificate;

2. After denying an application for a certificate, upon written request

filed within thirty (30) days of receipt of the letter advising of the

denial; or

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3. After issuing a written admonishment, upon written request for a

hearing filed within thirty (30) days of receipt of the written

admonishment.

39. After this process, “[a]n appeal from any final order of the Education Professional

Standards Board shall be filed in Franklin Circuit Court in accordance with KRS Chapter 13B.”

KRS 161.120(12) (emphasis added).

40. Executive Order 2017-364 removes the statutory right to directly appeal a final

order of the Board to Franklin Circuit Court.

41. Instead, the Executive Order creates an entirely new appeal procedure, requiring

final orders to be appealed to the Kentucky Board of Education. (EO 2017-364, ¶ XXIX).

42. Specifically, the Executive Order provides that a final disciplinary order of the

Education Professional Standards Board “may be appealed to the Kentucky Board of Education

within seven (7) days, which body should cause the case to be reviewed and answered within thirty

(30) days in a manner prescribed by its Board.” (Id.).

43. The Executive Order thus grants the Kentucky Board of Education jurisdiction

outside the scope of its statutory authority and changes the Education Professional Standards

Board’s statutory disciplinary process in KRS 161.120.

44. The Executive Order also grants the Governor the power to remove and replace any

member, other than an ex officio appointee, who misses three (3) consecutive board meetings. (EO

2017-364, ¶ LII).

45. In sum, Executive Order 2017-364 alters, suspends, and rewrites KRS 161.028 and

161.120 relating to the Education Professional Standards Board’s independence and statutorily

mandated structure and requirements for members, as well as the statutory appeal process for final

Board orders.

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State Advisory Council for Gifted and Talented Education

46. KRS 158.648(1) creates the State Advisory Council for Gifted and Talented

Education.

47. Under KRS 158.648(1), the purpose of the Council is to “make recommendations

regarding the provisions of services for gifted and talented students in Kentucky’s education

system.”

48. KRS 158.648(1)(c) provides for independence of the Council by mandating that

members “shall” serve terms of three (3) years. (Emphasis added).

49. KRS 158.648(1)(c) further provides for independence by staggering the Council

members’ terms, meaning no Governor can appoint all members at one time.

50. Executive Order 2017-364 abolishes the State Advisory Council for Gifted and

Talented Education, causing the terms of members serving prior to the order to “expire and cease

to exist” in violation of the terms mandated in KRS 158.648(1)(c). (EO 2017-364, ¶ XLII).

51. The Executive Order then re-creates the Council with the same purpose, but

allowing the Governor to appoint all new members, all at the same time. (See id. at ¶¶ XLIII and

XLIV).

52. Further, despite the statutory terms for members, the Executive Order grants the

Governor the power to remove and replace any member, other than an ex officio appointee, who

misses three (3) consecutive board meetings. (EO 2017-364, ¶ LII).

53. KRS 158.648(1)(a) provides for the mandatory structure of the State Advisory

Council for Gifted and Talented Education.

54. It specifically provides that the Council “shall be” composed of nineteen (19)

members appointed by the Governor and three (3) nonvoting ex officio members. Id.

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55. The Executive Order ignores, suspends, and rewrites KRS 158.648(1)(a), reducing

the Council’s membership to fifteen (15), including eleven (11) members appointed by the

Governor. (Id. at ¶ XLIV).

56. KRS 158.648(1)(a) limits the Governor’s appointment power. It states that the

Governor’s appointees to the State Advisory Council for Gifted and Talented Education “shall”

represent various constituencies. (Emphasis added). Specifically, under the statute the Council is

to be composed of the following appointees:

1. Four (4) members shall be teachers within local school districts

representing elementary, middle, and high school levels with at least

one (1) full-time teacher of gifted and talented students and one (1)

full-time teacher who teaches in a regular classroom;

2. Four (4) members shall be parents of students in local school

districts, including two (2) parents of students identified as gifted

and talented and at least one (1) who serves or has served on a school

council;

3. Three (3) members shall be from postsecondary education

institutions, including one (1) from an independent college or

university;

4. One (1) member shall be a superintendent of a local school district;

5. Two (2) members shall be principals, including one (1) from an

elementary or middle school and one (1) from a high school;

6. Two (2) members shall be coordinators of gifted and talented

programs and services in local school districts;

7. One (1) member shall be a local board of education member;

8. One (1) member shall represent the visual and performing arts; and

9. One (1) member shall be appointed from the private business sector.

Id.

57. The Executive Order ignores, suspends, and rewrites these statutory requirements.

58. Under the order, all of the Governor’s eleven (11) appointees must possess specific

experience or background in gifted and talented education, and they must further include: one (1)

elementary teacher; one (1) middle or high school teacher; one (1) gifted and talented program

coordinator; one (1) parent of a gifted or talented child; one (1) science, technology, engineering,

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or mathematics teacher; one (1) arts and humanities teacher; one (1) school counselor or

psychologist; one (1) superintendent or district assessment coordinator; one (1) faculty member of

a private postsecondary institution; one (1) faculty member of a public postsecondary institution;

and one (1) member-at-large who shall not be an active educator. (EO 2017-364, ¶ XLIV).

59. In sum, Executive Order 2017-364 alters, suspends, and rewrites KRS 158.648,

which provides for the independence of the State Advisory Council for Gifted and Talented

Education, sets the mandatory structure of the Council and mandatory terms for the Council’s

members, staggers those terms, and establishes criteria for Council appointments.

Reading Diagnostic and Intervention Grant Steering Committee

60. KRS 158.794 creates the Reading Diagnostic and Intervention Grant Steering

Committee.

61. The Committee was created “for the purpose of advising the Kentucky Board of

Education and the Department of Education concerning the implementation and administration of

the reading diagnostic and intervention fund created in KRS 158.792.” KRS 158.794(1).

62. KRS 158.794(2) provides independence for the Committee by creating set terms,

stating that “[e]ach member of the committee … shall serve for a term of three (3) years or until a

successor is appointed.” (Emphasis added).

63. To provide additional independence, KRS 158.794(2) staggers the terms of the

Committee’s appointees, which means no Governor can make all appointments at the same time.

64. Executive Order 2017-364 abolishes the Reading Diagnostic and Intervention

Grant Steering Committee, causing the terms of its members serving prior to the order to “expire

and cease to exist” in violation of the terms mandated in KRS 158.794(2). (EO 2017-364, ¶

XXXII).

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65. In violation of both the explicit provisions and intent of KRS 158.794(2), the

Executive Order then provides that the Governor shall appoint all new members, all at the same

time. (See id. at ¶ XXXIV).

66. Further, despite the statutory terms for members, the Executive Order grants the

Governor the power to remove and replace any member, other than an ex officio appointee, who

misses three (3) consecutive board meetings. (EO 2017-364, ¶ LII).

67. KRS 158.794(1) provides for the mandatory structure of the Reading Diagnostic

and Intervention Grant Steering Committee

68. It states the Committee “shall be” composed of sixteen (16) members, including

thirteen (13) gubernatorial appointees. (Emphasis added).

69. The Executive Order ignores, suspends, and rewrites KRS 158.794, reducing the

Reading Diagnostic and Intervention Grant Steering Committee’s membership to fifteen (15),

including ten (10) members appointed by the Governor. (Id. at ¶ XXXIV).

70. KRS 158.794(1)(a)-(e) limits the Governor’s appointment power by requiring that

appointees to the Reading Diagnostic and Intervention Grant Steering Committee meet certain

statutory criteria. They include: four (4) primary program teachers with a specialty or background

in reading and literacy; four (4) university or college professors with a specialty or background in

reading and literacy representing universities; one (1) elementary school principal; one (1) certified

library media specialist; and three (3) individuals from the state at large with an interest in reading

and literacy. Id.

71. The Executive Order ignores, suspends, and rewrites KRS 158.794(1), changing

the criteria appointees must satisfy. (EO 2017-364, ¶ XXXIV).

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72. Specifically, the Executive Order substitutes the judgment of the Governor over

that of the General Assembly, now requiring: one (1) parent; one (1) elementary school teacher;

one (1) middle or high school teacher; one (1) special education teacher; one (1) gifted and talented

teacher; one (1) university or college professor; one (1) speech-language pathologist; one (1)

librarian or certified media specialist; one (1) reading intervention teacher or administrator; and

one (1) member who has experience assisting deaf and hearing-impaired children. (Id.).


which provides for the independence of the Reading Diagnostic and Intervention Grant Steering

Committee, sets out the mandatory structure of the Committee and the terms of its members,

staggers those terms, and establishes criteria for Committee appointments.

School Curriculum, Assessment and Accountability Council

74. KRS 158.6452 creates the School Curriculum, Assessment and Accountability

Council.

75. According to KRS 158.6452(1), the General Assembly created the School

Curriculum, Assessment and Accountability Council to “study, review, and make

recommendations concerning Kentucky’s system of setting academic standards, assessing

learning, identifying academic competencies and deficiencies of individual students, holding

schools accountable for learning, and assisting schools to improve their performance.”

76. KRS 158.6452(2) provides for the independence of the Council, stating members

of the Council “shall” serve two (2) year terms. KRS 158.6452(2).

77. Executive Order 2017-364 abolished the School Curriculum, Assessment and

Accountability Council, causing the statutory terms of all members serving on the Council prior

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to the date of the order to “cease to exist” in violation of the terms mandated in KRS 158.6452(2).

(EO 2017-364, ¶ XVIII).

78. The Executive Order further violated the terms mandated in KRS 158.6452(2) by

providing that Council members “shall serve for a term of three (3) years[.]” (EO 2017-364, ¶

XLIX).

79. Additionally, despite the statutory terms for members, the Executive Order grants

the Governor the power to remove and replace any member, other than an ex-officio appointee,

who misses three (3) consecutive board meetings. (EO 2017-364, ¶ LII).

80. KRS 158.6452 also provides for the independence of the Council by providing a

mandatory structure.

81. KRS 158.6452(2) states the School Curriculum, Assessment and Accountability

Council “shall be composed of seventeen (17) voting members appointed by the Governor.”

(Emphasis added).

82. After abolishing the Council and purging its members, the Executive Order re-

created the Council, reducing it to fifteen (15) voting members, including thirteen (13)

gubernatorial appointees and the Secretary of Education and Workforce Development (or his

designee) and the Commissioner of Education serving in ex officio voting capacities. (EO 2017-

364, ¶ XXI).

83. KRS 158.6452(2)(a) provides independence to the Council by limiting the

Governor’s appointment power.

84. Specifically, KRS 158.6452(2)(a) mandates that the Governor “shall” select

fourteen (14) of his appointees to the School Curriculum, Assessment and Accountability Council

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from recommendations by organizations representing certain groups, including parents, teachers,

and school boards. KRS 158.6452(2)(a)-(i).

85. The Executive Order removed any requirement that the Governor make

appointments to the Council from recommendations made by education-related organizations.

(EO 2017-364, ¶ XXI).


which provides for the independence of the School Curriculum, Assessment and Accountability

Council, sets out the mandatory structure of the Council and the terms of Council members, and

limits the Governor’s appointment power by requiring recommendations from parties with

knowledge and experience.

Kentucky Board of Education

87. KRS 156.029 establishes the Kentucky Board of Education.

88. Pursuant to KRS 156.070(1), the Kentucky Board of Education “shall” manage and

control all “common” or public schools in the state and all programs operated in such schools.

(Emphasis added).

89. KRS 156.029 provides the statutorily mandated structure of the Kentucky Board of

Education, and KRS 156.029 and 156.040 prohibit certain requirements for board membership.

90. Executive Order 2017-364 violates and contradicts these statutes by changing the

board structure, adding new members with additional rights, and by adding occupational and other

requirements prohibited by the statute.

91. Specifically, KRS 156.029(1) mandates the Kentucky Board of Education “shall”

consist of eleven (11) members appointed by the Governor and confirmed by the Senate and House

of Representatives of the General Assembly. (Emphasis added).

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92. Of these eleven (11) members, seven (7) members “shall” represent each of the

Supreme Court districts established by KRS 21A.010, and four (4) “shall” represent the state at

large. Id. (emphasis added).

93. Under the executive order, Governor Bevin alters the mandatory board structure,

expanding the Board to fifteen (15) members. (See EO 2017-364, ¶ XIII).

94. Specifically, the Executive Order adds four (4) new members to the Board, all of

whom are to be designated by the Governor. (Id.).

95. The new members are neither representatives of Supreme Court districts nor “at-

large” members as required by KRS 156.029.

96. Although these added members are termed “non-voting advisors,” they “are

entitled to be present at all meetings, including closed sessions, and to be fully heard and to

participate in all topics of discussion.” (Id.).

97. The requirement that the new members be “fully heard” in all discussions exceeds

any statutory right granted to voting members under KRS Chapter 156.

98. Additionally, under KRS 156.029(2), appointments to the Kentucky Board of

Education “shall be made without reference to occupation, political affiliation, or similar

consideration. No member at the time of his appointment or during the term of his service shall

be engaged as a professional educator.” (Emphasis added).

99. Similarly, KRS 156.040(3) provides that appointments to the Board “shall be made

without reference to occupation, political affiliation, or similar considerations.” (Emphasis added).

100. Under the Executive Order, the Governor added new occupational and similar

requirements for all appointed, voting members. (EO 2017-364, ¶ XIV).

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101. Specifically, under the Executive Order, one (1) member of the board must be a

parent of a public school child at the time of appointment; at least four (4) members must possess

a minimum of five (5) years of experience within the field of education, including one (1) member

with a background as a faculty member of a postsecondary education; and at least four (4) members

must possess a minimum of five (5) years of leadership experience within business, including one

(1) member with a background as an entrepreneur who has employed ten (10) or more persons.

(Id.)

102. The Executive Order’s occupational requirements violates the express prohibition

of such requirements under KRS 156.029(2) and 156.040(3).

103. Under KRS 156.029(1), appointed members of the Kentucky Board of Education

“shall” serve four (4) year terms.

104. Despite the statutory terms of members, the Executive Order grants the Governor

the power to remove and replace any member, other than an ex officio appointee, who misses three

(3) consecutive board meetings. (EO 2017-364, ¶ LII).

105. In sum, the Executive Order suspends, ignores, and rewrites the mandatory

structure of the Board, the terms of its members, and the prohibitions on occupation requirements

under KRS 156.029 and 156.040.

106. Moreover, the Governor’s recent appointment of new members raises concerns as

to conflicts and control by the Cabinet for Education and Workforce Development. Upon

information and belief, one (1) new appointee is the spouse of that cabinet’s general counsel, and

another appointee is or was directly working for the cabinet through a “loan” program with a public

university.

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Council on Postsecondary Education

107. The Council on Postsecondary Education was created by KRS 164.011.

108. Among its many duties, KRS 164.020 states that the Council of Postsecondary

Education “shall adopt a strategic agenda that identifies specific short-term objectives in

furtherance of long-term goals established in KRS 164.003(2).” KRS 164.0203(1) (emphasis

added). These long-term goals include the achievement by 2020 of “[a] seamless, integrated

system of postsecondary education strategically planned and adequately funded to enhance

economic development and quality of life.” KRS 164.003(2)(a).

109. KRS 164.011 highlights that the Council is meant to be independent, stating it is

“an agency, instrumentality, and political subdivision of the Commonwealth and a public body

corporate and politic having all powers, duties, and responsibilities as are provided to it by law,

appointed for a term set by law pursuant to Section 23 of the Constitution of Kentucky.” KRS

164.011(1).

110. KRS 164.011(2), further limits the Governor’s appointment power for the Council.

It states that, in making all appointments to the Council on Postsecondary Education, the Governor

“shall . . . assure equal representation of the two (2) sexes, inasmuch as possible; assure no less

than proportional representation of the two (2) leading political parties of the Commonwealth

based on the state’s voter registration; and assure that appointments reflect the minority racial

composition of the Commonwealth.” The Governor further “shall” assure that no more than three

(3) voting members reside in any one (1) judicial district of the Kentucky Supreme Court as of the

date of appointment. Id.

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111. Executive Order 2017-3634 removes these limitations and requirements from

appointments of the Council’s faculty and student members in violation of KRS 164.011(2). (EO

2017-3634, ¶ IX).

112. KRS 164.011 provides for the membership of the Council. It states that the Council

on Postsecondary Education “shall” be comprised of thirteen (13) citizen members appointed by

the Governor, a full-time faculty member employed at a state institution of postsecondary

education, a full-time student enrolled at a state institution of postsecondary education, and the

commissioner of education. KRS 164.011(1), (3), and (4). The commissioner of education serves

in a nonvoting ex officio capacity. KRS 164.011(1).

113. KRS 164.011 then provides which of these members must be confirmed by the

Kentucky Senate.

114. Under KRS 164.011(1), only the citizen members of the Council on Postsecondary

Education “shall” be confirmed by the Kentucky Senate. (Emphasis added).

115. Executive Order 2017-364 ignores, suspends, and rewrites KRS 164.011 to require

all voting members, including the faculty and student members, to be confirmed by the Senate.

(EO 2017-364, ¶ IX).

116. Under KRS 164.011(6) each citizen member of the Council on Postsecondary

Education “shall serve a term of six (6) years unless removed by the Governor for cause[.]”

117. Despite the statutory terms for members, the Executive Order grants the Governor

the power to remove and replace any member, other than an ex officio appointee, who misses three

(3) consecutive board meetings. (EO 2017-364, ¶ LII).

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118. In sum, the Executive Order suspends, ignores, and rewrites KRS 164.011, which

provides the mandatory structure and confirmation process and the race, sex, geography, and

political affiliation requirements for the board.

Standards and Assessments Process Review Committee

119. The Standards and Assessments Process Review Committee was established by the

General Assembly during the 2017 Regular Session through the passage of Senate Bill 1 to review

the procedural aspects of the review process undertaken by four (4) standards and assessments

review and development committees, also created by the legislation. See 2017 Ky. Laws Ch. 156

(SB 1, sec. 3).

120. The General Assembly passed SB 1 on March 29, 2017.

121. The Governor approved Senate Bill 1 and signed it into law on April 10, 2017.

122. As of the date of this Complaint, the Governor has not appointed any members to

the Standards and Assessments Process Review Committee.

123. Nevertheless, the Governor has ignored, suspended, and rewritten the legislation,

second-guessing the legislature’s judgment before even implementing the bill.

124. Under SB 1, KRS 158.6453(2)(f), as amended, provides the mandatory structure

for the Standards and Assessments Process Review Committee

125. It provides that the Committee “shall” be composed of ten (10) members, including

three (3) members appointed by the Governor; three (3) members of the Senate appointed by the

Senate President; three (3) members of the House of Representatives appointed by the Speaker of

the House of Representatives; and the commissioner of education. 2017 Ky. Laws Ch. 156 (SB 1,

sec. 3) (emphasis added).

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126. In Executive Order 2017-364, Governor Bevin ignores, suspends, and rewrites

KRS 158.6453(2), as amended in SB 1, by creating three (3) additional appointees to the Standards

and Assessments Process Review Committee. (EO 2017-364, ¶ VIII).

127. The Governor thus increases the number of gubernatorial appointees on the

Committee.

128. Under the order, these three (3) additional appointees, each of whom shall serve

annual terms beginning June 1, 2017, shall include one (1) voting member of the Kentucky Board

of Education, one (1) voting member of the School Curriculum, Assessment and Accountability

Council, and one (1) voting member of the Education Professional Standards Board. (Id.).

129. The Executive Order thus sets criteria for the Governor’s additional appointees

where the legislation is silent.

130. The Executive Order also grants the Governor the power to remove and replace any

member, other than an ex officio appointee, who misses three (3) consecutive board meetings. (EO

2017-364, ¶ LII).


as amended by SB 1, legislation passed during the 2017 Regular Session, in order to increase his

influence on the Committee.

CLAIMS

Count I


132. The Attorney General incorporates by reference each and every allegation

previously set forth in this Complaint as if fully set forth herein.

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133. Kentucky Constitution § 15, entitled “Laws to be suspended only by General

Assembly,” provides that “[n]o power to suspend laws shall be exercised unless by the General

Assembly or its authority.”

134. In altering or abolishing the statutory education boards as set forth above, Governor

Bevin in Executive Order 2017-364 has suspended the laws that govern and structure them.

135. Kentucky Revised Statute 12.028 does not delegate to the Governor the General

Assembly’s power to suspend laws.


Bevin has violated Section 15 of the Kentucky Constitution.

Count II

Violation of the Nondelegation Doctrine



138. Under Kentucky Constitution §§ 27 and 29, the legislative power is vested in the

General Assembly.

139. Thus, only the General Assembly has the power to make a law. This power cannot

be delegated. Legislative Research Comm’n by and through Prather v. Brown, 664 S.W.2d 907,

915 (Ky. 1984).

140. The General Assembly can, however, establish standards and delegate its authority

to implement a law, so long as the delegation contains controlling standards that limit the exercise

of discretion. See id.

141. Again, under Kentucky Constitution § 15, “No power to suspend laws shall be

exercised unless by the General Assembly or its authority.”

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142. As set forth above, in issuing Executive Order 2017-364, Governor Bevin, citing

the authority granted to him in KRS 12.028, suspends, alters, rewrites, and makes laws.

143. Kentucky Revised Statute 12.028 does not and cannot delegate to the Governor the

authority to make law.

144. Furthermore, KRS 12.028 does not expressly delegate the General Assembly’s

authority to implement any law, nor does it delegate the General Assembly’s authority to suspend

the law.

145. Finally, KRS 12.028 sets forth no controlling standards, much less sufficient

controlling standards that limit discretion.

146. Under Governor Bevin’s use of his reorganization authority to alter independent

state boards that are statutorily created and structured, KRS 12.028 violates the nondelegation

doctrine and is unconstitutional.

Count III




148. Under Kentucky Constitution § 81, the Governor must “take care that the laws be

faithfully executed.”

149. In altering, ignoring, suspending, and rewriting statutes that govern and structure

state education boards, as described above, Governor Bevin has failed to take care that the laws

are faithfully executed in violation of Section 81 of the Kentucky Constitution.

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Count IV


KY. CONST. §§ 27, 28, and 29



151. Kentucky Constitution § 27 divides the legislative, executive, and judicial powers

of government among (3) three distinct branches.

152. Kentucky Constitution § 29 vests the legislative power in the General Assembly.

153. Under Kentucky Constitution § 28, no person or persons in one department of

government “shall exercise any power properly belonging to either of the others, except in the

instances hereinafter expressly directed or permitted.”

154. In Executive Order 2017-364, Governor Bevin has suspended and made laws, as

described above. In this way, Governor Bevin has invaded the legislative power of the General

Assembly.

155. By issuing Executive Order 2017-364, Governor Bevin has violated the separation

of powers firmly entrenched in Sections 27, 28, and 29 of the Kentucky Constitution.

Count V

Violations of KRS 12.028



157. Under KRS 12.028(1), the Governor has the power to reorganize state executive

“organizational units and administrative bodies in order to promote greater economy, efficiency,

and improved administration.”

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158. In Executive Order 2017-364, as described above, Governor Bevin has altered a

board created by the General Assembly during the 2017 Regular Session that has yet to meet or

even have members appointed to it.

159. In Executive Order 2017-364, as described above, Governor Bevin has abolished

multiple state education boards and re-created them with the same powers and duties.

160. In Executive Order 2017-364, as described above, Governor Bevin has altered

various state education boards in order to increase his own influence and control.

161. Governor Bevin’s actions under KRS 12.028 in Executive Order 2017-364 cannot

be justified in terms of the promotion of “economy, efficiency, and improved administration.”

162. As such, Governor Bevin’s actions in Executive Order 2017-364 violate the terms

and conditions of KRS 12.028.

Count VI

Violations of State Statutes Governing Education Boards



164. As described above, Governor Bevin’s Executive Order 2017-364 alters the statutes

that govern various state education boards, namely the Kentucky Board of Education, the Council

on Postsecondary Education, the Standards and Assessments Process Review Committee, the

School Curriculum, Assessment and Accountability Council, the Education Professional

Standards Board, the Reading Diagnostic and Intervention Grant Steering Committee, and the

State Advisory Council for Gifted and Talented Education.

165. The statutes so altered include KRS 156.029, KRS 156.040, KRS 164.011, KRS

158.6453, KRS 158.6452, KRS 161.028, KRS 161.120, KRS 158.794, and KRS 158.648.

166. By altering and re-writing these statutes, Governor Bevin has violated the statutes.

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167. Executive Order 2017-364 thus violates the statutes listed in paragraph 167.

Count VII

Violations of KRS 63.080



169. In relevant part, KRS 63.080(1) provides that “[e]xcept as . . . otherwise provided

by law, any person appointed by the Governor . . . may be removed from office by the Governor

for any cause the Governor deems sufficient, by an order of the Governor entered in the executive

journal removing the officer.”

170. Executive Order 2017-364 abolishes the School Curriculum, Assessment and

Accountability Council, the Reading Diagnostic and Intervention Grant Steering Committee, and

the State Advisory Council for Gifted and Talented Education, causing the terms of each board’s

members to expire immediately.

171. Pursuant to KRS 158.6452(2), KRS 158.794(2), and KRS 158.648(1)(c), members

of the education boards listed in the paragraph above serve statutorily-mandated terms of years.

172. These statutorily-mandated terms of years constitute other law that prevents the

Governor from removing board members for any cause he deems sufficient.

173. Thus, in removing board members before the expiration of their statutorily-

prescribed terms, the Executive Order violates KRS 63.080.

Count VIII




175. An actual and justiciable controversy exists among the parties as to whether:

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A. Kentucky Revised Statute 12.028 is constitutional as used by the Governor

to “reorganize” independent state boards;

B. Governor Bevin in enacting Executive Order 2017-364 has violated

Kentucky Constitution §§ 15, 27-29, and 81, KRS 12.028, and the statutes governing and

structuring the education boards affected by his order;

C. Executive Order 2017-364 is null and void because KRS 12.028 is

unconstitutional and/or the order violates the Kentucky Constitution and Kentucky Revised

Statutes;

176. The Attorney General is entitled to a declaratory judgment on behalf of the

Commonwealth that:

A. The Governor’s use of KRS 12.028 violates the Kentucky Constitution as

to independent state boards;



structuring the education boards affected by his order; and



Statutes.

Count IX

Permanent Injunctive Relief



178. As described above, the Attorney General, on behalf of the Commonwealth, is

entitled to further relief in the form of permanent injunctive relief restraining and enjoining the

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Defendants, and all their agents, attorneys, and any other persons in active concert or participation

with them, from implementing, enforcing, or otherwise acting under Executive Order 2017-364.


suffered injury and will continue to so suffer unless and until the Defendants are permanently

enjoined from such activity by Order of this Court.


a court of equity.

181. No previous application for an injunction has been refused by any court.

182. The Attorney General on behalf of the Commonwealth is entitled to further relief

as may be shown by the evidence and legal authority that may be presented in this proceeding.

The Attorney General reserves his right to amend this Complaint, as necessary, to request any

further relief that he is entitled to seek.

WHEREFORE, the Attorney General demands judgment against the Defendants as set

forth in his Prayer for Relief below.

PRAYER FOR RELIEF

WHEREFORE, the Attorney General, on behalf of the Commonwealth, demands as

follows:


A. The Governor’s use of KRS 12.028 violates the Kentucky Constitution as

to independent state boards;



structuring the education boards affected by his order; and

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Statutes;

II. That this Court issue a permanent injunction restraining and enjoining the

Defendants, and all their agents, attorneys, representatives, and any other persons in active concert

or participation with them, from implementing, enforcing, or otherwise acting under Executive

Order 2017-364; and

III. That the Attorney General be awarded any and all other relief to which he may

appear entitled, including his attorneys’ fees and costs.

DATE: June 20, 2017 Respectfully Submitted,


OFFICE OF THE ATTORNEY GENERAL

ANDY BESHEAR

ATTORNEY GENERAL

By: /s/ La Tasha Buckner

La Tasha Buckner, Executive Director

Office of Civil and Environmental Law

S. Travis Mayo

Laura C. Tipton

Taylor Payne

Matt James

Assistant Attorneys General

Office of the Attorney General

700 Capitol Avenue

Capitol Building, Suite 118


(502) 696-5300

[email protected]

Counsel for Commonwealth of Kentucky

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Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673 (2019)367 Ed. Law Rep. 1176

© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

575 S.W.3d 673Supreme Court of Kentucky.

COMMONWEALTH of Kentucky EX REL.Andy BESHEAR, Attorney General, Appellant

v.Matthew G. BEVIN, in His Official Capacity as

Governor of Kentucky, Hal Heiner, in His OfficialCapacity as Secretary of the Kentucky Educationand Workforce Development Cabinet, Appellees

2017-SC-000647-TG|

JUNE 13, 2019

SynopsisBackground: Attorney General brought action againstGovernor, Secretary of Education, and WorkforceDevelopment Cabinet to challenge validity of executive ordertemporarily reorganizing education boards between GeneralAssembly sessions. The Circuit Court, Franklin County, No.17-CI-00673, Thomas D. Wingate, J., generally upheld order.Attorney General appealed, and case was transferred.

Holdings: The Supreme Court, Minton, C.J., held that:

[1] temporary reorganization of education departments wasstatutorily authorized;

[2] statute permitting the reorganizations did not violateconstitutional prohibition against suspension of laws unlessby the General Assembly or its authority;

[3] statute satisfied constitutional requirement to provide foran efficient system of common schools throughout state; and

[4] Governor's exercise of legislative authority did not violateseparation of powers or nondelegation doctrines.

Affirmed.

Vanmeter, J., concurred in result and filed opinion joined byBuckingham, J.

West Headnotes (13)

[1] EducationState Boards and Officers

StatesGovernor

Statute which listed governing statutes fororganizational units and administrative bodies,including education boards, did not exemptstate’s education boards from ambit ofstatute authorizing governor, between GeneralAssembly sessions, temporarily to effect changein organizational structure of any organizationalunit or administrative body; nothing indicatedthat list of governing statutes was exhaustive. Ky.Rev. Stat. Ann. §§ 12.028, 12.295.

[2] EducationAppointment and tenure of officers

Public EmploymentMembers and officers

StatesGovernor

Statutes establishing service for a set termon various education boards did not precludegovernor from reorganizing boards pursuant tostatute authorizing governor, between GeneralAssembly sessions, temporarily to effect changein organizational structure of any organizationalunit or administrative body, including creation,alteration, or abolition of any organizational unitor administrative body; set term of years wasceiling, not the floor, and members of boardsabolished by governor could be removed frompositions. Ky. Rev. Stat. Ann. §§ 12.028, 63.080.

[3] EducationValidity of statutes

Temporary reorganization mechanism understatute authorizing governor, between GeneralAssembly sessions, temporarily to effectchange in organizational structure of anyorganizational unit or administrative body

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and Governor's executive order temporarilyreorganizing education boards between sessionsdid not violate constitutional prohibition againstsuspension of laws unless by the GeneralAssembly or its authority; the statutory authoritysatisfied constitutional provision. Ky. Const. §15; Ky. Rev. Stat. Ann. § 12.028.

[4] EducationSchool system, and establishment of

schools in general

Statute authorizing governor, between GeneralAssembly sessions, temporarily to effectchange in organizational structure of anyorganizational unit or administrative bodysatisfied constitutional requirement to providefor an efficient system of common schoolsthroughout state; statute allowed governor toaddress problems with the Commonwealth’ssystem of common schools, specifically,problems with organization of its educationboards, by effectuating changes to those boards.Ky. Const. § 183; Ky. Rev. Stat. Ann. § 12.028.

[5] Constitutional LawEncroachment in general

One branch of Kentucky’s tripartite governmentmay not encroach upon the inherent powersgranted to any other branch. Ky. Const. § 27.

[6] Constitutional LawDelegation in general

The “nondelegation doctrine” recognizes that theConstitution vests the powers of government inthree separate branches and, under the doctrine ofseparation of powers, each branch must exerciseits own power rather than delegating it to anotherbranch. Ky. Const. § 27.

[7] Constitutional LawEncroachment on legislature

The transfer of an existing, legislatively-created function from one executive agency ordepartment to another is essentially an executive

action, is not an exercise of legislative powerby the chief executive, and does not violateseparation of powers or nondelegation doctrine.Ky. Const. § 27.

[8] Constitutional LawSeparation of Powers

Constitutional LawNature and scope in general

The “legislative power” under separation ofpowers doctrine is the authority under theconstitution to make the laws, and to alterand repeal them; the difference between thedepartments undoubtedly is that the legislaturemakes, the executive executes, and the judiciaryconstrues, the law. Ky. Const. § 27.

[9] Constitutional LawEncroachment on legislature

StatesGovernor

Governor's exercise of legislative authoritypursuant to statutorily authorized temporaryreorganization mechanism and executive ordertemporarily reorganizing education boardsbetween sessions of General Assembly did notviolate separation of powers or nondelegationdoctrines; General Assembly members reviewedreorganization plans, temporary reorganizationonly survived until next regular session, andGeneral Assembly continued to maintain control.Ky. Const. § 27; Ky. Rev. Stat. Ann. § 12.028.

[10] Constitutional LawDelegation of Powers

Constitutional LawTo Executive, in General

General Assembly may validly vest legislativeauthority in another branch if the law delegatingthat authority provides safeguards, proceduraland otherwise, which prevent an abuse ofdiscretion by the agency.

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[11] Constitutional LawPurposes of separation of powers

The doctrine of the separation of powers wasadopted to preclude the exercise of arbitrarypower; the purpose was to save the people fromautocracy. Ky. Const. § 27.

[12] Constitutional LawPurposes of separation of powers

The purpose of the nondelegation doctrineshould no longer be either to preventdelegation or to require statutory standards; thepurpose should be the much deeper one ofprotecting against unnecessary and uncontrolleddiscretionary power. Ky. Const. § 27.

[13] Constitutional LawEncroachment on Judiciary

EducationProceedings for organization

Governor’s executive order reorganizingEducation Professional Standards Boardbetween General Assembly sessions was notunconstitutional infringement on the judiciary’spower because temporary reorganization ofBoard did not impute the judicial power in anyway. Ky. Const. § 27; Ky. Rev. Stat. Ann. §12.028.

*675 ON TRANSFER FROM COURT OF APPEALS,CASE NO. 2017-CA-001916, FRANKLIN CIRCUITCOURT NO. 17-CI-00673, HONORABLE THOMAS D.WINGATE

Attorneys and Law Firms

COUNSEL FOR APPELLANT: Andy Beshear, AttorneyGeneral of Kentucky, La Tasha Arnae Buckner, AssistantDeputy Attorney General, Steven Travis Mayo, ExecutiveDirector, Office of Civil and Environmental Law, MatthewJames, Laura Tipton, Taylor Allen Payne, Assistant AttorneysGeneral.

COUNSEL FOR APPELLEE MATTHEW G. BEVIN IN HISOFFICIAL CAPACITY AS GOVERNOR OF KENTUCKY:Mark Stephen Pitt, Stephen Chad Meredith, Matthew Kuhn,Office of the Governor.

COUNSEL FOR APPELLEE HAL HEINER, INHIS OFFICIAL CAPACITY AS SECRETARY OFTHE KENTUCKY EDUCATION AND WORKFORCEDEVELOPMENT CABINET: Mark Stephen Pitt, StephenChad Meredith, Matthew Kuhn, Office of the Governor,Bridget H. Papalia, Office of General Counsel.

Opinion

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

When it enacted Kentucky Revised Statute (“KRS”) 12.028,the General Assembly empowered the Governor “betweensessions of the General Assembly, temporarily [to] effecta change in the state government organizational structure”of “any organizational unit or administrative body” in the

Commonwealth. 1 And the Governor exercised that authoritywhen he issued Executive Order (“EO”) 2017-364, whichmade several changes to various state education boards.The Attorney General sued in circuit court to challenge thevalidity of the executive order, and that court upheld it. Ondiscretionary review, we find no statutory or constitutionalinfirmity with the Governor’s use of the executive order toaffect a temporary government reorganization on the factsbefore us, so we affirm the circuit court’s judgment.

I. BACKGROUND.

Central to this dispute is KRS 12.028, Subsection 1 ofwhich gives the Governor the ability to “propose to theGeneral Assembly, for [the General Assembly’s] approval,changes in the state government organizational structurewhich may include *676 the creation, alteration or abolition

of any organizational unit 2 or administrative body 3 andthe transfer of functions, personnel, funds, equipment,facilities, and records from one (1) organizational unitor administrative body to another.” And Subsection 2states in relevant part: “Recognizing that changes in thestate government organizational structure may need to bemade as rapidly as possible to achieve greater economy,efficiency, and improved administration as the needs ofgovernment dictate, the Governor ... may, between sessionsof the General Assembly, temporarily effect a change in

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the state government organizational structure as described insubsection (1)[.]” Subsection (5) emphasizes the temporarynature of such a reorganization: “A temporary reorganizationeffected under subsection[ ] (2) ... shall be terminated ninety(90) days after sine die adjournment of the next regularsession of the General Assembly unless otherwise specifiedby the General Assembly.”

Exercising this legislatively-recognized power under KRS12.028, the Governor issued EO 2017-364, the effect of whichthe circuit court aptly summarized:

The Order creates the CharterSchools Advisory Council, toadvise the Kentucky Department ofEducation on charter schools, andallow[ ] overlapping membership withother education boards; altered theStandards and Assessments ProcessReview Committee’s membership toallow membership overlap with otherboards; modified the Council onPostsecondary Education to guaranteethat a citizen member is a non-voting,non-member advisor to the KentuckyBoard of Education; and changedthe Kentucky Board of Educationto include four non-voting, non-member advisors who are on theCouncil on Postsecondary Education,the Education Professional StandardsBoard, the School CurriculumAssessment and AccountabilityCouncil, and the Charter SchoolsAdvisory Council, or an individualwith experience in education.The Order restructured theSchool Curriculum[ ] Assessmentand Accountability Council with15 members, rather than theprevious 17 members, andaltered membership requirements;reorganized the Reading, Diagnostic,and Intervention Grant SteeringCommittee with one less member at15, and modified the membershiprequirements; reorganized the StateAdvisory Council for Gifted

and Talented Education, reducingmembership numbers from 19to 11, and altering membershipcriteria; and abolished and re-created the State Advisory Panel forExceptional Children as the StateAdvisory Council for ExceptionalChildren with 21 members, ratherthan 20 previous members, andadditional[ly] represents individualswith disabilities. The Order finallyabolished and re-created the EducationProfessional Standards Board with13 members instead of the previous15 members, and provided newmembership criteria, and altered theappeal process for decisions – appealsnow go to the Kentucky Board ofEducation for review before appealto the Circuit Court rather thanautomatically going to the CircuitCourt for review of the Board’s finaldecision[.]

*677 The circuit court upheld the validity of EO 2017-364except for the portion restructuring the appeal process withinthe Education Professional Standards Board, which the circuitcourt ruled unconstitutional. And the Governor has notappealed that ruling. The Attorney General appealed theremainder of the trial court’s ruling and sought immediatetransfer of the case directly to this Court, which we granted.

II. ANALYSIS.

KRS 12.028 authorizes the Governor to effectuate forthe interim between legislative sessions a temporaryreorganization of the state’s “organizational units andadministrative bodies.” The Governor executed thisauthorization by promulgating EO 2017–364, temporarilyreorganizing various state education boards. The AttorneyGeneral makes several constitutional and statutory argumentschallenging the validity of the temporary reorganizationmechanism itself and some of its inner workings. We addressthose challenges below.

A. Statutory Arguments

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[1] Because this Court respects the principle that

“constitutional issues should be avoided if possible[,]” 4 weaddress the Attorney General’s statutory arguments first.

The Attorney General argues that the General Assemblyexempted the state’s education boards from the ambit ofKRS 12.028. According to the Attorney General, KRS 12.295specifically outlines the chapters in the Kentucky RevisedStatutes that govern the various state education boards towhich the Governor made changes and that no other statutenot referred to in KRS 12.295 applies to the governance of theboards. This specific outlining, the Attorney General argues,further indicates the General Assembly’s intent to exemptthem from the domain of KRS 12.028.

KRS 12.028 plainly applies to “organizational units andadministrative bodies[.]” KRS 12.295 states, “The followingorganizational units and administrative bodies shall begoverned by their respective substantive chapters as set outbelow[,]” followed by a list of the education boards at issueand their respective governing statutes. KRS 12.295 terms theeducation boards as “organizational units and administrativebodies[,]” the exact entities that KRS 12.028 encompassesas being within the ambit of the Governor’s reorganizationpower.

Contrary to the Attorney General’s interpretation of KRS12.295, we find no indication from that statute that thechapters listed in conjunction with the specific board theygovern represents an exhaustive list of governing statutesexcluding application of every other statute not listed. KRS12.295 reads more as a table of contents or index, givingdirections to the reader on where to find the main governingprovisions of certain boards rather than instruction from theGeneral Assembly that no statute outside of the ones listed inKRS 12.295 has any application to the listed boards.

Not only does the plain text support the Governor’s position:If the General Assembly truly intended for the organizationalunits and administrative bodies listed in KRS 12.295 to beexempt from reorganization under KRS 12.028, it would haveexplicitly said so—KRS 12.028 like other statutes, explicitlyexempts certain organizational units and administrative

bodies from reorganization. 5

*678 The Attorney General also argues that the governingChapters themselves signal the intent of the GeneralAssembly to remove the boards that the Governorreorganized from the Governor’s reorganization power

under KRS 12.028. Although the Attorney General makesvarious statutory-construction arguments to persuade us ofthe General Assembly’s intent to exclude the KentuckyEducation Boards from the ambit of KRS 12.028, thesearguments contradict the plain and explicit text of that statute.We need not look beyond the plain and unambiguous text

of the General Assembly in our statutory interpretation. 6

And the plain text of KRS 12.028, explicitly stating thatthe reorganization power applies to “organizational units andadministrative bodies,” coupled with the plain text of KRS12.295, which specifically terms all the education boardsat issue today as “organizational units and administrativebodies,” confirms that all of the education boards come withinthe broad sweep of KRS 12.028.

In sum, we find the various education boards at issue fallwithin the ambit of the Governor’s temporary-reorganization-outside-of-session power stemming from KRS 12.028. Wecannot accept the Attorney General’s suggested statutoryinterpretation in the face of such clear text.

[2] The Attorney General further argues that the GeneralAssembly has limited the Governor’s authority with respectto the boards to one of appointment—not removal—authority.The Attorney General cites the various statutes governing thevarious boards at issue providing for mandatory terms forits sitting members. The Attorney General also cites to KRS63.080, which says that individual members on some of theboards at issue cannot be removed from their positions bythe Governor without cause. If the Governor can reorganizethese boards at the Governor’s whim, these statutes providingfor mandatory terms are meaningless, the Attorney Generalargues.

As we previously stated, this Court cannot ignore the plaintext of KRS 12.028 in favor of the Attorney General’sstatutory interpretation. KRS 12.028(2) explicitly allowsthe Governor to “temporarily effect a change in thestate government organizational structure as described insubsection (1) of this section[.]” The change describedin KRS 12.028(1) “include[s] the creation, alteration orabolition of any organizational unit or administrative bodyand the transfer of functions, personnel, funds, equipment,facilities, and records from one (1) organizational unit oradministrative body to another.” If the Governor’s powerincludes the “alteration or abolition of any organizational unitor administrative body,” that necessarily means that membersof the specific board that the Governor has abolished may beremoved from their positions.

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*679 Moreover, simply because statutes exist to define aset term of years for an individual to serve as a member ofa board does not mean that the appointed member may notbe removed from service. The set term of years is the ceiling,not the floor. Indeed, KRS 63.080 itself allows the Governorremoval power. Although that statute limits that removalpower in some instances “for cause,” the Governor is stillable to remove members of the boards at issue here. And theAttorney General has not argued that the Governor’s removalof some of the boards' members was without cause; rather, theAttorney General argues that the statutes establishing servicefor a set term by various members of the various boardsat issue evidences an intention by the General Assembly todisconnect these boards from the ambit of KRS 12.028. But,as stated earlier, that argument disregards the plain text ofKRS 12.028.

To conclude, the plain text of KRS 12.028 gives the Governorthe statutory power to do what he did. Although the AttorneyGeneral offers several statutory-construction arguments tosupport his assertion that the General Assembly meant toexclude the state education boards from the Governor’sreorganization power under KRS 12.028, the plain text ofKRS 12.028 says otherwise.

B. Constitutional ArgumentsThe Attorney General makes three constitutional arguments.He asserts that the Governor’s power to affect a temporaryreorganization outside of legislative session to be a violationof: 1) the suspension provision of Section 15 of the KentuckyConstitution; 2) the education provision of Section 183of the Kentucky Constitution; and 3) the separation ofpowers doctrine generally and the nondelegation doctrinespecifically.

1. The temporary reorganization mechanism does notviolate Section 15 of the Kentucky Constitution.

[3] The Attorney General first argues that the temporaryreorganization mechanism of KRS 12.028, as used in EO2017–364, violates Section 15 of the Kentucky Constitution.Section 15 states, “No power to suspend laws shall beexercised unless by the General Assembly or its authority.”The Attorney General posits that EO 2017–364 “suspend[ed]laws” by effecting changes to the various Kentuckyeducation boards in conflict with the boards' governingstatutes. For example, KRS 161.028(2)(a) provides that theEducation Professional Standards Board “shall be composed

of seventeen (17) members,” yet EO 2017–364 reduces thenumber of members to fifteen. This, the Attorney Generalargues, is an unconstitutional suspension and rewriting by theGovernor of duly enacted law.

But the Attorney General’s argument fails to persuade usbecause even if we were to agree that the changes made byEO 2017–364 constitute a suspension of law, the AttorneyGeneral ignores the latter half of Section 15: “No powerto suspend laws shall be exercised unless by the General

Assembly or its authority.” 7 In Lovelace v. Commonwealth,this Court recognized that when the General Assemblyexpressly grants to another branch the power to suspend alaw, that branch constitutes the General Assembly’s authorityfor purposes of Section 15 and that branch’s execution of a

suspension of the laws does not violate Section 15. 8

*680 At issue in Lovelace was the constitutionality of astatute allowing the judiciary to probate the sentence of a

convicted criminal in certain situations. 9 In upholding theconstitutionality of that statute, the Court said this:

We need not here inquire into the extent to which the powerto suspend the rendition and entry of a judgment inheresin the court as a judicial function or how far other statutesshould be construed as requiring the rendition of judgmentin a reasonable time after the verdict. Whatever the extentof those directions and limitations may be, the power inthe legislature to authorize the courts to suspend those lawsis in the logically implied affirmation contained in Section15 of the Constitution of Kentucky, declaring “No powerto suspend laws shall be exercised, unless by the generalassembly or its authority.” By this act of 1936, the GeneralAssembly has exercised that constitutional power and hasauthorized the courts to suspend the implications of thelaw which require entry and pronouncement of judgment

without unreasonable delay. 10

By enacting KRS 12.028, the General Assembly granted theGovernor the authority in the interim between legislativesession to reorganize temporarily state organizational unitsand administrative agencies. KRS 12.028 is the GeneralAssembly’s authority for purposes of Section 15. This isthe difference between the present case and the cases theAttorney General relies on to support his position. In Baker

v. Fletcher, 11 Fletcher v. Commonwealth, 12 and Beshear v.

Haydon Bridge, 13 the General Assembly had not grantedthe Governor the authority to suspend the law. Here, the

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temporary reorganization mechanism established by KRS12.028, in conjunction with the Governor’s exercise of thattemporary reorganization mechanism by his issuance of EO2017-364, not only does not violate Section 15 but directlyconforms to it because the General Assembly has explicitlydesignated the Governor under its authority to suspend thelaw.

Simply put, the temporary reorganization mechanism laidout by KRS 12.028 and executed by EO 2017–364 does notviolate Section 15 of the Kentucky Constitution because theGovernor possesses the General Assembly’s authority to doso under that constitutional provision by virtue of the GeneralAssembly having so stated.

2. The temporary reorganization mechanism does notviolate Section 183 of the Kentucky Constitution.

[4] Next, the Attorney General asserts that the temporaryreorganization mechanism violates Section 183 of theKentucky Constitution. Section 183 states: “The GeneralAssembly shall, by appropriate legislation, provide for anefficient system of common schools throughout the State.”We fail to see how KRS 12.028 is anything but a statute fullywithin the scope of Section 183.

KRS 12.028 is a statute that “provides for an efficient systemof common schools throughout the State” by allowing theGovernor temporarily to reorganize the state’s educationboards “to achieve greater economy, efficiency, and improved

administration” of the education system. 14 This power stemsfrom the recognition that “changes in the state governmentorganizational structure may need to be made as rapidly as

possible,” 15 i.e., cannot delay until the *681 legislatureconvenes. As with the relationship of KRS 12.028 to Section15, KRS 12.028 not only does not violate Section 183, itconforms to it.

In sum, KRS 12.028 allows the Governor to address what theGovernor perceives to be problems with the Commonwealth’s“system of common schools[,]” specifically, problems withorganization of its education boards, by effectuating changesto those boards. Contrary to the Attorney General’s argumenton this point, our decision in Rose v. Council for Better

Educ., Inc. 16 does not stand for a categorical rule banning allaction taken by the executive department affecting the state’ssystem of common schools, especially when the legislativedepartment itself requests assistance from the executive—theonly department of state government that can carry out the

General Assembly’s will. Nor do Sections 185 and 186 of theKentucky Constitution evidence such a categorical rule.

The General Assembly enacted KRS 12.028, a law that thelegislative body apparently believes promotes Kentucky’ssystem of common schools by granting interim power to theGovernor to effectuate temporary reorganizations. If KRS12.028 and EO 2017-364 pass constitutional scrutiny, whichthey do, then the judiciary cannot gainsay that policy decision.

3. The temporary reorganization mechanism doesnot violate the separation of powers or nondelegationdoctrines.

[5] [6] Finally, the Attorney General argues that thetemporary reorganization mechanism violates the separationof powers doctrine. “It is well settled law in the stateof Kentucky that one branch of Kentucky’s tripartitegovernment may not encroach upon the inherent powers

granted to any other branch.” 17 The Attorney Generaladds that the temporary reorganization mechanism violatesthe nondelegation doctrine, a principle deriving from theseparation of powers doctrine. “The nondelegation doctrinerecognizes that the Constitution vests the powers ofgovernment in three separate branches and, under the doctrineof separation of powers, each branch must exercise its own

power rather than delegating it to another branch.” 18 TheAttorney General argues that only the General Assembly—the legislative department—has the power to reorganize theCommonwealth’s education boards and that the delegationof this power to the Governor—the executive department—violates the principle of the separation of powers.

[7] Our precedent ostensibly disposes of this issue. As westated in Brown v. Barkley: “[W]e are satisfied that thetransfer of an existing, legislatively-created function from oneexecutive agency or department to another is essentially anexecutive action ... and is not an exercise of legislative power

by the chief executive[.]” 19 And we reaffirmed this principlein Legislative Research Comm'n ex rel. Prather v. Brown:“[O]nce the General Assembly has made a determinationthat the power to reorganize state government in the interimbetween legislative sessions does exist, and determines thatthat power is in the hands of the Governor, such interim

action is purely an executive function.” 20 So LegislativeResearch Comm'n and *682 Barkley stand for the rulethat the power temporarily to reorganize organizational unitsand administrative agencies of state government during theinterim between sessions is a legislatively recognized and

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sanctioned executive power that does not encroach on thelegislative power of the General Assembly.

[8] Leaving aside the unassailability of that rule as it appliedto the facts in both of those cases, it simply does not apply tothe facts in the present case. “It would be difficult, perhapsimpossible, to define the extent of the legislative power of thestate, unless by saying that so far as it is not restricted by thehigher law of the state and federal constitutions, it may do

everything which can be effected by means of a law.” 21 “Thelegislative power we understand to be the authority underthe constitution to make the laws, and to alter and repealthem[.] The difference between the departments undoubtedlyis that the legislat[ure] makes, the executive executes, and the

judiciary construes, the law.” 22

[9] In the present case, the General Assembly created, bystatute, the various education boards at issue. The GeneralAssembly, by statute, outlined various aspects of thoseboards, ranging from the number of members populatingthem to the duties and responsibilities of those boards.Simply put, KRS 12.028, which allows the Governor tochange the makeup and functions of those boards—evengoing so far as abolishing existing boards and creating newones—is a grant of legislative authority to the executivedepartment. KRS 12.028 allows the executive departmentto engage in lawmaking by allowing the Governor to alterthe General Assembly’s duly enacted statutes outlining thevarious aspects of the state’s education boards.

Simply because this lawmaking occurs in the interim—the period when the legislature is not in session—doesnot alter the fact that the power being exercised by theGovernor is lawmaking. The making and changing of lawsis the hallmark of the legislative power no matter if itoccurs during the legislative session or in the interim.And lawmaking in the interim is still lawmaking. KRS12.028 allows the Governor to “between sessions of theGeneral Assembly, temporarily effect a change in thestate government organization structure” that “include[s]the creation, alteration or abolition of any organizationalunit or administrative body and the transfer of functions,personnel, funds, equipment, facilities, and records from one(1) organizational unit or administrative body to another.”Simply put, KRS 12.028 allows the Governor to changethe law. That is an exercise of legislative power. The timewithin which an action occurs does not change the nature ofthe action—simply because the changing of statutes occurs

outside of session does not change the fact that statutes arebeing changed—lawmaking is occurring.

Moreover, we cannot say as our precedent may suggestthat because the General Assembly has prescribed a statutethat allows the Governor to change statutes, the Governoris simply executing the laws by acting under a grantof legislative authority. Taking this notion to its logicalconclusion, the General Assembly could pass a law stating,“The Governor shall have the power to change all laws of thisCommonwealth between sessions of the General Assembly,”and, under the “executing the laws” rule, there would be noseparation of powers violation because the Governor, if he orshe changes all laws in the Commonwealth, would simply beexecuting *683 the statute. But at its core, the execution ofthe statute at issue in the present case allows the Governor toengage in lawmaking—exercise legislative authority.

[10] [11] [12] All this being true, the delegation oflegislative power by the General Assembly to the executivedepartment is not totally prohibited: “[T]he nondelegationdoctrine recognizes that ... given the realities of modern rule-making, [the legislature] neither has the time nor the expertise

to do it all; it must have help.” 23 “As a result of this reality,we have acknowledged that [other branches] may exercise

legislative ... authority if certain protections are in place.” 24

“The General Assembly may validly vest legislative ...authority in [another branch] if the law delegating thatauthority provides ‘safeguards, procedural and otherwise,

which prevent an abuse of discretion by the agency.’ ” 25

“The doctrine of the separation of powers was adopted ...to preclude the exercise of arbitrary power. The purpose

was ... to save the people from autocracy.” 26 “The purposeof the nondelegation doctrine should no[ ] longer be eitherto prevent delegation or to require statutory standards; thepurpose should be the much deeper one of protecting against

unnecessary and uncontrolled discretionary power.” 27

Every reorganization plan the Governor effectuates betweensessions is reviewed by members of the General Assembly

both at the front and back ends. 28 Even though the Governorcan implement the temporary plan in the interim, changesmade by the temporary reorganization only survive until

the General Assembly’s next regular session. 29 Not onlycan the General Assembly *684 affirmatively reject theGovernor’s reorganization plan and restore the status quo ante—the Governor’s temporary reorganization automaticallyreverts to the status existing before the Governor instituted

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it, even by the General Assembly’s inaction. The fate ofthe entire temporary executive reorganization-outside-of-session mechanism rests wholly in the hands of the GeneralAssembly. The General Assembly is instrumentally involvedin the temporary reorganization process and has erectedits own checks against the executive’s permanent use ofexecutive power to organize state government.

The Attorney General aptly observes that broadreorganization authority that the Governor can effectuatetemporarily can, and often does, transmute into a de factopermanent reorganization of state government by executiveorder. This is so, the Attorney General argues, becausethe temporary reorganization mechanism of KRS 12.028does not prohibit the Governor from effectuating temporaryreorganization plans in a continuous loop, uninterruptedby affirmative action of the General Assembly. There maybe a point at which this continuous reorganization loopby executive order unconstitutionally encroaches upon thelegislative power of our General Assembly as the Governoreffectuates what amounts to a permanent change in thelaws that govern organizational units and administrativebodies. But such is not the case before us today. Andeven if it were, some may view as legislative approval theGeneral Assembly’s repeated acquiescence in the continuousloop of executive orders that effectively institute the samereorganizational changes year after year. In any event, theAttorney General has only placed one executive order in issuebefore us in this case, framing this case as a challenge to theconstitutionality of EO 2017–364 and this application of KRS12.028 under the facts presented here, not as a facial challengeto that statute.

Ultimately, the General Assembly continues tomaintain control of the temporary-reorganization-outside-of-legislative-session mechanism. The General Assemblycan put an end to the mechanism. Not only that, but theGeneral Assembly could choose explicitly to exempt certainboards from the executive’s reorganization power or limitthe executive’s reorganization power in any way it chooses.And the fact that the executive’s interim change only lasts

for a period of time between regular sessions and that it canonly be effectuated again by another executive order furtherevidences the temporary nature of the executive’s change. TheGeneral Assembly’s continued extensive control over thistemporary mechanism precludes this Court at this time fromdetermining that the General Assembly has abdicated thelawmaking power of the legislative department and deliveredit into the hands of the executive department.

[13] In sum, on the facts before us, neither KRS 12.028nor EO 2017-364 constitutes an unconstitutional delegationof legislative power. Nor did the Governor’s reorganizationof the Education Professional Standards Board, besides theGovernor’s restructuring of its appeal process, constitutean unconstitutional infringement on the judiciary’s powerbecause the temporary reorganization of this board does not

impute the judicial power in any way. 30

*685 III. CONCLUSION.

We affirm the judgment of the Franklin Circuit Court.

All sitting. Minton, C.J.; Hughes, Keller, Lambert, and WrightJJ., concur. VanMeter, J. concurs in result only by separateopinion, which Buckingham, J., joins.

VANMETER, J., CONCURRING IN RESULT ONLY:While I agree with the result of the majority opinion, Idisagree with that portion that states that the Governor isexercising “legislative power.” In my view he is exercisinghis “executive power” as authorized by the legislature and theKentucky Constitution.

Buckingham, J., joins.

All Citations

575 S.W.3d 673, 367 Ed. Law Rep. 1176

Footnotes1 KRS 12.028(1) and (2).

2 KRS 12.010(1) defines “organizational unit” to mean “any unit of organization in the executive branch of the stategovernment that is not an administrative body, including but not limited to any agency, program cabinet, department,bureau, division, section or office[.]”

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3 KRS 12.010(8) defines “administrative body” to mean “any multi-member body in the executive branch of the stategovernment, including but not limited to any board, council, commission, committee, authority or corporation, but doesnot include ‘branch,’ ‘section,’ ‘unit’ or ‘office[.]’ ”

4 W.B. v. Commonwealth., Cabinet for Health & Fam. Srvcs., 388 S.W.3d 108, 117 (Ky. 2012).

5 See 12.028(2) (“The Governor may not effect a temporary reorganization plan under this subsection that would change theorganizational structure of an organizational unit or administrative body headed by the Kentucky Economic DevelopmentPartnership as created in KRS 154.10–010, or another elected state executive officer unless requested in writing bythat officer.”); KRS 342.1228 (“The Kentucky Workers' Compensation Funding Commission shall not be subject to theGovernor’s power of reorganization under KRS Chapter 12, including attachment or transfer to another organizationalunit or administrative body other than the Labor Cabinet.”); KRS 7.090(1) (“There is created a Legislative ResearchCommission as an independent agency in the legislative branch of state government, which is exempt from control bythe executive branch and from reorganization by the Governor.”).

6 Pearce v. Univ. of Louisville, 448 S.W.3d 746, 749 (Ky. 2014) (“[W]e construe a ‘statute only as written, and the intent ofthe Legislature must be deduced from the language it used, when it is plain and unambiguous[.]’ ”) (quoting W. Ky. CoalCo. v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400, 401–02 (1929)).

7 (emphasis added).

8 285 Ky. 326, 147 S.W.2d 1029, 1034–35 (1941); see also Commonwealth, ex rel. Armstrong v. Collins, 709 S.W.2d 437,442-43 (Ky. 1986) (favorably discussing Lovelace).

9 147 S.W.2d at 1034–35.

10 Id. (internal citations omitted).

11 204 S.W.3d 589 (Ky. 2006).

12 163 S.W.3d 852 (Ky. 2005).

13 304 S.W.3d 682 (Ky. 2010).

14 KRS 12.028(2).

15 Id.

16 790 S.W.2d 186 (Ky. 1989).

17 Elk Horn Coal Corp. v. Cheyenne Res., Inc., 163 S.W.3d 408, 422 (Ky. 2005) (quoting Smothers v. Lewis, 672 S.W.2d62, 64 (Ky. 1984)).

18 TECO Mech. Contractor, Inc. v. Commonwealth, 366 S.W.3d 386, 397 (Ky. 2012) (citing Bd. of Trs. of Jud. Form Ret.Sys. v. Atty. Gen., 132 S.W.3d 770, 781 (Ky. 2003)).

19 628 S.W.2d 616, 622 (Ky. 1982) (emphasis added).

20 664 S.W.2d 907 (Ky. 1984).

21 Slack v. Maysville & Lexington R.R., 52 Ky. 1, 12 (Ky. 1852).

22 Purnell v. Mann, 105 Ky. 87, 50 S.W. 264, 266 (1899) (citations omitted).

23 Bd. of Trs. of Jud. Form Ret. Sys., 132 S.W.3d at 781 (citing Mistretta v. U.S., 488 U.S. 361, 372, 109 S.Ct. 647, 102L.Ed.2d 714 (1989)).

24 TECO Mechanical Contractor, Inc. v. Com., 366 S.W.3d 386, 397 (Ky. 2012).

25 TECO, 366 S.W.3d at 397–98 (quoting Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 854 (Ky.1981)) (citing Butler v. United Cerebral Palsy of Northern Ky., Inc., 352 S.W.2d 203, 208 (Ky. 1961)).

26 Fletcher v. Commonwealth, 163 S.W.3d 852, 863 (Ky. 2005) (quoting Myers v. U.S., 272 U.S. 52, 293, 47 S.Ct. 21, 71L.Ed. 160 (1926)).

27 Miller v. Covington Development Authority, 539 S.W.2d 1, 5 n.9 (Ky. 1976) (quoting Davis, Administrative Law Text, §2.08 (3d ed. 1972)).

28 KRS 12.028(3) (“Any reorganization proposed under subsection ... (2) ... shall be set forth in a reorganization planwhich shall be filed with the Legislative Research Commission.”); KRS 12.028(4) (“When a proposed reorganizationplan is submitted for review under subsection (2) ... the presiding co-chairman of the Legislative Research Commissionshall determine which interim joint legislative committee has appropriate jurisdiction and shall refer the plan to suchcommittee[.] ... The interim joint legislative committee ... shall review the plan to determine whether the plan canreasonably be expected to achieve greater economy, efficiency or improved administration in state government.”); KRS12.028(5) (“The Governor ... shall recommend legislation to the General Assembly [during the session immediatelyfollowing the interim period in which the reorganization change was effectuated] to confirm the temporary reorganization

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plan. The subject matter of each executive order relating to reorganization shall be presented to the General Assemblyin a separate bill.”).

29 KRS 12.028(5) (“A temporary reorganization effected under subsections (2) to (4) of this section shall be terminated ninety(90) days after sine die adjournment of the next regular session of the General Assembly unless otherwise specified bythe General Assembly.... If the General Assembly fails to enact a temporary reorganization plan, the Governor ... shallnot effect the plan prior to the next succeeding session of the General Assembly.”).

30 See Am. Beauty Homes Corp. v. Louisville & Jefferson Cty. Planning & Zoning Comm'n, 379 S.W.2d 450, 458 n.20(Ky. 1964) (“It is very doubtful that characterizing the function of an administrative agency as quasi-judicial serves anypurpose but to confuse. Though such an agency may adjudicate, it does not exercise judicial power and the term, insteadof correlating the agency with the judiciary, may mean exactly the opposite.”) (citations omitted).

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

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12/10/2019 Beshear's Board Of Education Overhaul Would Be Unprecedented

https://wfpl.org/gov-elect-beshears-board-of-education-overhaul-would-be-unprecedented/ 1/6

Listen Live (https://wfpl.org/stream) Calendar (http://events.wfpl.org) Donate (https://louisvillepublicmedia.org/suppo

Gov.-Elect Beshear’s Board Of Education OverhaulWould Be UnprecedentedBy Ryland Barton (https://wfpl.org/author/ryland-barton/)

POLITICS (https://wfpl.org/category/politics/) December 9, 2019

If Gov.-elect Andy Beshear fulfills his campaign promise to replace the members of the Kentucky Board of Education, he would be the first

governor to do so since lawmakers tried to insulate the board from political pressures in 1990 as part of the Kentucky Education Reform

Act.

Beshear, a Democrat, has said he would overhaul the Board of Education by executive order “on day one,” a rallying point for many

educators who disagreed with priorities of the current 11-member board appointed by Republican Gov. Matt Bevin.

Beshear has also said he hopes that the board would replace its only employee, Education Commissioner Wayne Lewis, who was hired

shortly after Bevin’s appointees took control of the board in 2018.

In a statement Crystal Staley, communications director for Beshear’s incoming administration, said that the move would help create a

“positive tone in Frankfort” in a statement.

“Gov.-elect Beshear has only said that we must have a Board of Education and commissioner that is fully committed to public education,

which requires a change that he will make after being sworn in,” Staley wrote.

Beshear, Bevin At Odds

Beshear and education advocates have criticized Lewis for his stances supporting charter schools, a push for a state takeover of

Louisville’s public school system in 2018 and collection of teacher absence records when educators called in sick to protest at the state

Capitol earlier this year.

But an overhaul of the Board of Education would be similar to the very thing Beshear repeatedly sued Bevin for — using the governor’s

reorganization powers to shape state boards to his liking.

Although Bevin totally replaced several state boards throughout his four years in office, he didn’t use his reorganization power to overhaul

the Board of Education. Instead, his Board of Education appointments came when members’ terms lapsed, giving them full control of the

board starting in 2018.

Beshear challenged Bevin’s total replacement of the University of Louisville board of trustees in 2016. Then in 2017, Beshear argued that

Bevin didn’t have the power to create a panel of charter school to advise the Kentucky Board of Education and totally replace boards that

deal with certifying teachers and curriculum standards. The Kentucky Supreme Court ruled that the governor (https://wfpl.org/kentucky-

supreme-court-rules-challenge-to-bevin-u-of-l-overhaul-is-moot/) had the power to execute both of those executive orders.

(https://wfpl.org/ky-supreme-court-rules-in-favor-of-bevins-education-board-overhauls/)

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https://wfpl.org/stream

http://events.wfpl.org/

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https://wfpl.org/author/ryland-barton/

https://wfpl.org/category/politics/

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https://wfpl.org/ky-supreme-court-rules-in-favor-of-bevins-education-board-overhauls/



And now Beshear says that the high court’s rulings affirm his power to replace all of the members of the state Board of Education before

their two-year terms are up.

Incoming Lt. Gov. Jacqueline Coleman, who recently worked as an assistant principal in Nelson County, said during a press conference

this week that the prospective board will include “a team of folks who value public education in the same way that we do.”

“Our goal I know is going to be continue to build out this team with folks who support public education and who see the vision that we

see for moving Kentucky forward,” Coleman said.

Teacher Influence

Kentucky teachers have flexed their political muscle in recent years, launching massive protests in Frankfort in 2018 and 2019 to oppose

several measures supported by Bevin and Republican leaders of the state legislature — changes to pension benefits, private scholarship

tax credits and education funding.

Teachers have also vigorously opposed charter schools, which have been authorized to open up in Kentucky since 2017, but have not

received funding amid intense opposition from educators.

Commissioner Lewis has been a focal point of the charter school issue. He headed up a charter schools advisory committee that advised

the state Board of Education before he was hired to replace former Commissioner Stephen Pruitt.

But Lewis has fought back against Beshear’s promise to oust him, saying on Wednesday that his critics have mischaracterized him as an

opponent of public education.

“Attacks on my character and my commitment and my background make me angry. They make me want to lash out, they make me want

to say things about those people that I shouldn’t say. And it’s only my faith that stops me from doing so,” Lewis said.

Lewis said Beshear should reorganize the Board of Education if that’s what he wants to do and if he feels he has the legal authority to do

so.

“If that new board has the authority to fire me without cause and that’s what they choose to do, then they should do it. It’s been a long

time since I had to worry about having a job. I will be fine,” Lewis said.

Concerns About Politicization Of Board Of Ed

Lewis’ predecessor, Stephen Pruitt, resigned (https://wfpl.org/stephen-pruitt-resigns-under-pressure/) under duress two years before his

contract was up after Bevin’s appointees took control of the board in 2018.

At the time, Bevin (https://wfpl.org/bevin-mum-on-kentucky-education-commissioner-pruitts-future/) said that he liked Pruitt personally, but

was concerned that thousands of Kentucky students have fallen below academic proficiency under his watch.

Bevin’s moves raised concerns (https://wfpl.org/how-kentucky-law-aims-to-separate-education-from-politics/) that Kentucky’s Board of

Education was being politicized and undermining KERA, the 1990 education reform law that sought to insulate the board from political

influence.

KERA made Kentucky’s top education official a position hired by the Board of Education, rather than elected by a statewide vote.

Brigitte Blom Ramsey, executive director of the Prichard Committee for Academic Excellence, said that Pruitt’s ouster, Lewis’ appointment

as commissioner and Beshear’s promise to replace the Board of Education have “increasingly politicized our conversation around

education.”

She said that the normal course of appointing board members when their two-year terms expire has “proven successful in the past,” but

that if Beshear goes forward with replacing the board, he should do so with non-partisan thought-leaders.

“The conservation around education is too important and it affects families from Republican backgrounds and Democratic backgrounds.

We can’t afford to have political conversations about education, we have to protect that space to make sure it’s non-partisan,” Blom

Ramsey said.

Terms for Board of Education members are staggered so that some of the 11-member board can be replaced at the start of a governor’s

term and the rest can be replaced two years later.

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https://wfpl.org/stephen-pruitt-resigns-under-pressure/

https://wfpl.org/bevin-mum-on-kentucky-education-commissioner-pruitts-future/

https://wfpl.org/how-kentucky-law-aims-to-separate-education-from-politics/



Four board members’ terms will end in April 2020 and seven will end in 2022.

If Beshear reorganized the board before Kentucky’s Republican-led legislature reconvenes in January, lawmakers would have the chance

to approve the changes or let them lapse.

Beshear’s first day in office is December 10th.

Share on Twitter (https://wfpl.org/gov-elect-beshears-board-of-education-overhaul-would-be-unprecedented/?share=twitter&nb=1)

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(https://wfpl.org/author/ryland-barton/)

By Ryland Barton (https://wfpl.org/author/ryland-barton/)

@RylandKY (https://twitter.com/RylandKY)

Ryland Barton is the Capitol bureau chief for Kentucky Public Radio.

WATCH LIVE: Kentucky Inauguration Day Festivities In Frankfort

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https://twitter.com/RylandKY

https://wfpl.org/watch-live-kentucky-inauguration-day-festivities-in-frankfort/

https://wfpl.org/this-week-in-conversation-how-kentucky-handles-sexual-assault/

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DIVISION ____

CIVIL ACTION NO. _________

GARY HOUCHENS, MILTON SEYMORE, BEN CUNDIFF,

TRACEY CUSICK, KATHEY GORNIK, HAL HEINER,

ALESA JOHNSON, JOE PAPALIA, LAURA TIMBERLAKE

and RICHARD GIMMEL

PLAINTIFFS

v.

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION

FOR INJUNCTIVE RELIEF BY TEMPORARY RESTRAINING ORDER

AND TEMPORARY INJUNCTION

GOVERNOR ANDY BESHEAR, ET AL. DEFENDANTS

**** **** **** ****

NOTICE

Please take notice, that on December 11, 2019, or as soon as is practicable for the

Franklin Circuit Court, the Plaintiffs in the above styled action will make the following motion

for injunctive relief:

May it please the Court:

As the Complaint and this Memorandum show, Plaintiffs’ rights will be violated by the

actions of the Defendants, and Plaintiffs will suffer an immediate and irreparable injury before

they can be heard in opposition. Further, the Plaintiffs will suffer an immediate and irreparable

injury pending a judgment on the merits, a substantial legal question on the merits exists, and the

public interest favors injunctive relief after a weighing of the equities. Thus, pursuant to CR

65.01, CR 65.03 and CR 65.04, this Court should enter a temporary restraining order and a

temporary injunction enjoining the Defendants from enforcing or acting under Executive Order

2019-02.

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INTRODUCTION

The gubernatorial campaign of Governor Andy Beshear included many promises, one of

which was front and center – the promise to install a new Kentucky Board of Education

consisting of members appointed by him “on day one” of his governorship. Governor Beshear

further stated that the new board would remove Commissioner Wayne Lewis from his position.

As recently as the week before his inauguration, Governor Beshear again repeated his intentions

to take these actions. See Courier Journal “Kentucky Election Can Beshear break up State Board

of Education,” 11/07/2019, attached as Exh. A.

Governor Beshear has now attempted to keep that campaign promise. Only hours after

taking the oath of office, he has issued Executive Order 2019-02. That Executive Order attempt

to abolish the current Board of Education that has members appointed by former Governor

Bevin, and creates an all new Board of Education. This purported new Board of Education

consists of new Board Members selected by Governor Beshear. In short, Governor Beshear has

turned over the Board of Education as a result of his election in office, constituting it with his

hand-picked appointees. But contrary to his representations, Governor Beshear’s actions are not

supported nor permitted by the law.1

Governor Beshear’s attempt at reorganization of the Board of Education has never before

been tried by a sitting Governor. No other Governor has attempted to avoid the statutory

requirements enacted as a result of the Kentucky Education Reform Act, which adopted law to

1 Governor Beshear’s campaign promises came on the heels of what had become a very divisive issue in the

Commonwealth arising out of former Governor Bevin’s policy initiatives. Indeed, many teachers and their

supporters participated in sick-outs to come to Frankfort in opposition to former Governor Bevin’s efforts. The

teachers announced efforts to oust Governor Bevin from office in the next General Election, and they expressed

support for gubernatorial candidate Andy Beshear, who chose a running mate, Jacqueline Coleman, that is a public

educator herself. He has since named Lieutenant Governor Coleman as the Secretary of the Education and

Workforce Development Cabinet, which is the Cabinet implementing the reorganization at issue in the subject

Executive Order.

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insulate the Kentucky Board of Education from partisan politics. Specifically, KRS 156.029(2)

provides that “a member shall not be removed except for cause.”2 Moreover, KRS 63.080 (2)(b)

likewise states that “Members of the Kentucky Board of Education . . .shall not be removed

except for cause.”

Governor Beshear has now issued an Executive Order where he removes members and

appoints eleven new voting members. Nowhere in the Executive Order does he state that the

dismissal is for cause. Nor does he reference KRS 156.029(2) and KRS 63.080(b) which provide

that dismissal must be for cause. KRS 63.080(2)(d) states that cause includes the charges of

“malfeasance, misfeasance, incompetence, or gross neglect of duty.”

Until the Court decides the substantial legal question of whether these members may be

removed without cause and whether the Governor has acted within his delegated authority

pursuant to KRS 12.028, a temporary restraining order and a temporary injunction are necessary

to prevent the further violation of Kentucky law by enforcement of the executive orders, which

would irreparably harm the Plaintiffs.

ARGUMENT

I. STANDARDS FOR INJUNCTIVE RELIEF

Pursuant to CR 65.03, “[a] party may obtain injunctive relief in the circuit court by (a)

restraining order, (b) temporary injunction, or (c) permanent injunction in a final judgment.” A

restraining order must only restrict the doing of an act, while an injunction may restrict or

2 He cites in a whereas provision in his Executive Order: “Whereas, members of the current Kentucky Board of

Education have conflicting relationships, lack experience in public education, failed to conduct a nationwide search

before appointing the Commissioner of Education, and accepted plane tickets, hotel rooms, and conference fees

from an organization closely tied to registered lobbyists of both the Kentucky Department of Education and the

Kentucky Board of Education.” Yet, no Member of the Board of Education has been questioned about any

conflicting relationship; all members met the statutory requirements for membership; there was no statutory

requirement that a nationwide search for commissioner be held; and any conferences that were attended upon the

basis of scholarships were reviewed with the Ethics Commission prior to attending.

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mandatorily direct the doing of an action. CR 65.01. With regard to a restraining order, CR

65.03(1) provides:

A restraining order may be granted at the commencement of an action,

or during the pendency thereof, without written or oral notice to the adverse

party or his attorney only if (a) it clearly appears from specific facts shown by

verified complaint or affidavit that the applicant's rights are being or will be

violated by the adverse party and the applicant will suffer immediate and

irreparable injury, loss or damage before the adverse party or his attorney can be

heard in opposition, and (b) the applicant's attorney certifies to the court in

writing the efforts, if any, which have been made to give notice and the reasons

supporting his claims that notice should not be required.

Further, a restraining order granting injunctive relief against the enforcement of a statute

or ordinance must be directed against the acts of those specific public officials charged with

enforcing the statute or ordinance to enjoin their threatened enforcement. Commonwealth v.

Mountain Truckers Ass’n, Inc., 683 S.W.2d 260, 263 (Ky. App. 1984) (citing Akers v. Floyd

County Fiscal Court, 556 S.W.2d 146 (Ky. 1977).

Under CR 65.04(1), a Court may grant a temporary injunction if it is “clearly shown by

verified complaint, affidavit, or other evidence that the movant’s rights are being or will be

violated by an adverse party and the movant will suffer immediate and irreparable injury, loss, or

damage pending a final judgment in the action, or the acts of the adverse party will tend to render

such final judgment ineffectual.” The granting of a temporary injunction is within the sound

discretion of the trial court. Maupin v. Stansbury, 575 S.W.2d 695, 697-98 (Ky. App. 1978). A

Court should grant a temporary injunction if the movant shows irreparable injury, the existence

of a substantial legal question on the merits, and a weighing of the equities favor injunctive

relief. Maupin v. Stansbury, 575 S.W.2d 695, 697-98 (Ky. App. 1978). As the Court explained

in Maupin:

Applications for temporary injunctive relief should be viewed on three levels. First, the

trial court should determine whether plaintiff has complied with CR 65.04 by showing

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irreparable injury. This is a mandatory prerequisite to the issuance of any injunction. Secondly,

the trial court should weigh the various equities involved. Although not an exclusive list, the

court should consider such things as possible detriment to the public interest, harm to the

defendant, and whether the injunction will merely preserve the status quo. Finally, the complaint

should be evaluated to see whether a substantial question has been presented. If the party

requesting relief has shown a probability of irreparable injury, presented a substantial question as

to the merits, and the equities are in favor of issuance, the temporary injunction should be

awarded.

As the movant, the Plaintiffs carry the burden of “clearly showing” these elements. CR

65.04(1); Maupin, 575 S.W.2d at 698. At a minimum, the rule contemplates that a mere

allegation that irreparable injury will result is insufficient. Rather, “(t)he complaining party must

allege and prove facts from which the court can reasonably infer such would be the result.” Id. at

698-99. In a departure from federal jurisprudence, in Kentucky a movant is not required to show

a substantial probability of success on the merits. Id.

A. The Plaintiffs’ Rights are Being or Will be Violated by the Defendants’ Actions

and They Will Suffer Immediate and Irreparable Injury Absent Injunctive

Relief.

To show harm, a party must first allege possible abrogation of a concrete right. Maupin,

575 S.W.2d at 698. The movant must also make a clear showing that these rights will be

immediately impaired. Id. This means that “(a)n injunction will not be granted on the ground

merely of an anticipated danger or an apprehension of it, but there must be a reasonable

probability that injury will be done if no injunction is granted.” Hamlin v. Durham, 32 S.W.2d

413, 414 (Ky. 1930) (emphasis added). “In the area of temporary injunctive relief, the clearest

example of irreparable injury is where it appears that the final judgment would be rendered

completely meaningless should the probable harm alleged occur prior to trial.” Maupin, 575

S.W.2d at 698.

If the Defendants are permitted to enforce the Executive Order, and a newly constituted

Board of Education is permitted to take action, there is no question that a final judgment would

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be rendered completely meaningless. Specifically, the members of the Board that Governor

Beshear abolished were appointed to their voting memberships pursuant to a lawful statute -

KRS 156.029 - which specifically provides that each member shall sit for a four year term, and

appointments shall be made without reference to “political affiliation.” In addition, two

Kentucky statutes, KRS 156.029 and KRS 63.080, both provide that they cannot be removed

from that seat without cause. If the Executive Order is enforced as it is written, the Board

Members will lose their rights to vote and to participate in Board action. Moreover, they will be

deprived of their seats without a determination of cause in conflict with statutory law. See KRS

156.029 and KRS 63.080. In short, if any action is taken by a new sitting board, those

opportunities to vote will be forever lost. By statute, these Members are entitled to finish out

their terms of office and are not to be removed from their voting positions without cause. Id.

Indeed, the harm that would be afforded a Board member wrongfully removed from his

appointed office was recognized by the Franklin Circuit Court in the matter of Beshear v. Bevin,

Civil Action No. 16-CI-738, September 28, 2016, attached as Exh. B to the Complaint. That

case addressed the University of Louisville Board of Trustees and Judge Phillip Shepherd

opined:

The Governor’s assertion of unlimited power, during the legislative interim, to

abolish a Board, composed of members who can only be removed for cause, would

completely defeat the protection of Board members from partisan political

interference for discharging their fiduciary duties. The unlimited power to “abolish

and re-create” this Board is wholly inconsistent with the statutes that explicitly limit

the Governor’s power to remove university board members. Such control would

establish a dangerous precedent that invites the abuse of power.

Indeed, Judge Shepherd’s opinion was strikingly prophetic of the issue before the Court in this

motion:

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This Court does not doubt Governor Bevin’s good intentions in adopting these

executive orders. But if the Court adopts his interpretation of the re-organization

statute, there would be nothing to stop a future governor from employing it to

destroy a university board as a means of political retaliation. . . .

Id. at 9. As a means to ensure that there would be no irreparable harm in the University of

Louisville case, the Judge issued an injunction. The same relief should be afforded here until a

decision on the merits can be heard.

Moreover, such irreparable harm is presumed for governmental entities, and the

Kentucky Supreme Court recognized and adopted this harm in Boone Creek Properties, LLC v.

LFUCG, 442 S.W.3d 36 (Ky. 2014), wherein the trial court granted an injunction to protect

against the irreparable harm. Id. at 38. As the Supreme Court did in Boone Creek Properties,

LLC, this Court has recognized that a potential ongoing violation of Kentucky statute necessarily

constitutes irreparable harm warranting injunctive relief before final adjudication. See Legislative

Research Comm’n v. Fischer, 366 S.W.3d 905, 909-10 (Ky. 2012)(Franklin Circuit issued a

restraining order and later a temporary injunction). See also General Drivers, Warehousemen &

Helpers, et al. v. Matthew G. Bevin, Governor, et al., Civil Action No. 16-CI-552 (Franklin

Circuit Court) (granting a temporary restraining order and later a temporary injunction).

2. The balancing of the equities weighs in favor of the granting of temporary

injunctive relief.

A balancing of the various equities involved in this action heavily weigh in favor of the

issuance of a temporary injunction. The relative benefits and detriments should be weighed,

which entails a consideration of whether the public interest will be harmed by the issuance of the

injunction, whether the Defendants will be harmed or whether its effect will merely be to

maintain the status quo. Maupin, 575 S.W.2d at 698 (citing Kentucky High School Athletic Ass’n

v. Hopkins, 552 S.W.2d 685 (Ky. App. 1977)).

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The public has a strong interest in ensuring that neither the Governor nor the executive

branch invades the legislative power solely reserved to the General Assembly. As the Court

wrote in Legislative Research Comm’n By and Through Prather v. Brown, 664 S.W.2d 907, 912

(Ky. 1994), the Kentucky Constitution contains provisions “which, on the one hand, mandate

separation among the three branches of government, and on the other hand specifically prohibit

incursion of one branch of government into the powers and functions of others.” The separation

of powers doctrine is fundamental to Kentucky’s government and must be strictly construed.

Brown, 664 S.W.2d at 912 (citing Arnett v. Meredith, 121 S.W.2d 36, 38 (Ky. 1938).3

Furthermore, the public has a strong public interest in ensuring that statutorily-appointed Board

members serving fixed terms mandated by statute may so serve without interference by an

individual.

The public has a strong interest in ensuring that the Governor cannot unilaterally remove

those Board members without authority for removal. As previously stated, the statute governing

the Board of Education requires that the gubernatorial appointments of the Board “shall” not be

removed except for cause. KRS 156.029 (3). Further, under KRS 63.080(2), the Governor “shall

not” remove a member of the Board except for cause. The word “shall” has been interpreted as

“a word of command.” Vandertoll v. Commonwealth, 110 S.W.3d 795-95 (Ky. 2003). As the

Court in Vandertoll wrote, “[s]hall means shall.” Id. Thus, the Governor’s executive orders

violate this clear statutory mandate.

The public has a strong interest in ensuring that the Board performs its statutorily-

mandated duties without unlawful interruption. The Commonwealth relies on its Boards that

3 Additionally, Courts nationally recognize that “the vindication of constitutional violations is always in the public

interest.” Doe v. Harlan County Sch. Dist., 96 F.Supp.2d 667, 679 (E.D.Ky. 2000) (citing Connection Distrib. Co. v.

Reno, 154 F.3d 281, 288 (6th Cir. 1998); Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474,

1490 (6th Cir. 1995); G & V Lounge, Inc. v. Michigan Liquor Control Com’n, 23 F.3d 1071, 1079 (6th Cir. 1994)

(“it is always in the public interest to prevent the violation of a party's constitutional rights.”)).

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govern them in carrying out their duties and business. Indeed, Governor Beshear, while serving

as Attorney General, issued the following in an Attorney General Opinion:

The Governor has been granted power over boards and agencies such as

Retirement Systems in that the Governor is allowed to appoint significant numbers

of members to many of them, and sometimes controlling numbers of members. To

further hold that the Governor may remove any of his appointees at will would

damage or destroy the independence that such boards have. . . . the legislature

intended for boards . . .to have a level of stability, independence, and insulation from

political influence. Our interpretation preserves these boards as independent

agencies, while the Governor still retains significant influence over such boards

through the power of appointment. AOG 16-004, May 17, 2016.

While the public will be harmed if the Defendants act under the executive order, the

Defendants will not be prejudiced by temporary injunctive relief. Such relief will restore the

members of the Board as they existed prior to the issuance of the executive order. The Board of

Education is not scheduled for a regular meeting until February of 2020, having held their

meeting as recently as last week on December 4, 2019. Governor Beshear’s Executive Order

does not cite any emergency reasons for the abolition of the current Board. He refers to nothing

that is on the agenda that must be addressed prior to the regularly scheduled meeting. To the

contrary, he has stated that the Board can take its time to determine a new Commissioner, and

the Commissioner’s current contract does not allow termination without ninety-days notice.

On the other hand, if the Court does not grant temporary injunctive relief, the Defendants

may carry out the executive orders built on baseless legal foundations. The new Board could

enter into contracts that would need to be rescinded or voided because it was not lawfully-

created and could subject the Board to liability. Likewise, the Board could make employment

decisions that could not be reversed and that could subject it to liability. Such decisions would

irreparably harm the public education system and the Commonwealth.

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Without injunctive relief, any actions taken by an unlawfully-created Board will greatly

prejudice the Commonwealth. Therefore, temporary injunctive is necessary to restore the status

quo until the Court decides the merits of the action. See Curry v. Livestock Mkt., 343 S.W.2d

134, 135 (Ky. 1961).

3. A substantial legal question on the merits exists in this matter.

As the Plaintiffs have shown, a substantial legal question on the merits exists. The

Commonwealth has demonstrated in its Verified Complaint the likelihood that it has a

“substantial possibility” of succeeding on the merits. Norsworthy v. Kentucky Bd. of Medical

Licensure, 330 S.W.58, 63 (Ky. 2009). Further, the Plaintiffs have shown that a serious question

exists that warrants a trial on the merits.

In issuing Executive Order 2019-02, the Governor has clearly exceeded his authority in

violation of Kentucky statute. As stated previously, the Governor’s executive order violates the

statutory requirements that board members may only be removed for cause.4 Moreover, the

Governor has exceeded the statutory authority granted him pursuant to KRS 12.028, which

permits reorganization only when for the purposes of greater economy, efficiency, and improved

administration. That statute provides:

Recognizing the necessity for grouping related functions of organizational units and

administrative bodies in order to promote greater economy, efficiency and improved

administration, the Governor . . . may propose to the General Assembly, . . .changes

in the state government organizational structure which may include the creation,

alteration or abolition of any organizational unit . . . and the transfer of functions,

personnel, funds, equipment, facilities and records from (1) organizational unit or

administrative body to another.” (emphasis added).

4 If Governor Beshear intends to suggest that each member is being removed for cause, then an evidentiary hearing

is necessary to establish such cause and it cannot be on the basis of empty assertions in a singular whereas clause of

the Executive Order.

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KRS 12.028(2) further provides that this ability to reorganize may occur in between

sessions, but also states that such reorganization must be done for the purposes of economy,

efficiency, and improved administration:

Recognizing that changes in the state government organizational structure may need

to be made as rapidly as possible to achieve greater economy, efficiency, and

improved administration as the needs of government dictate, the Governor . . . may,

between session of the General Assembly, temporarily effect a change . . . described

in subsection (1). (emphasis added).

Accordingly, the statutory language sets forth clear parameters within which the reorganizational

authority may be exercised.

Yet, Governor Beshear’s Executive Order does not address these issues. As evidenced

by his political campaign promises recited on multiple occasions, his reasons are policy driven –

not for the increased efficiency, economy, or improved administration.5 He has publicly stated he

intended to reorganize the state board of education and appoint new members who support public

education. In fact, in his inaugural address, Governor Beshear said, “I reorganized the state board

of education and appoint new members who support public education.” Promise fulfilled:

Beshear breaks up Kentucky Board of Education on first day of governor, Courier-Journal,

December 10, 2019, attached as Exh. B. The changes in the Board are simply because he does

not agree with the policies being pursued by the Board, and his desire to keep a campaign

promise. This is exactly the type of political influence KERA sought to prevent with change in

governors. If the intent had been to let the Governor have such influence, the statute would not

have required that the members have staggered terms, and it would not have put the hiring of the

Commissioner at the discretion of the Board. Rather, the statute would have permitted the

Governor to appoint the Commissioner of Education.

5 Governor Beshear cites “increased efficiency, economy, and improved administration” in his Executive Order, but

nothing in the order demonstrates what elements are being addressed to achieve these requirements. Instead, the

Executive Order makes the new appointments.

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In short, if the Board established by the Executive Order is permitted to proceed, the

Commonwealth will suffer immediate and irreparable injury prior to a judgment on the merits.

This action raises the substantial legal question as to whether the Governor is exercising

legislative, not executive, power by effectively altering statutes regarding a Board and its

members without prior legislative approval. See Brown, 664 S.W.2d 907. The Governor’s

attempt to paint such at-will removal of Members from this independent Board and to do it

without cause under the guise of a temporary reorganization under KRS 12.028 must fail.

In addition, the Governor’s actions in issuing the executive orders violate his primary

responsibility under the Kentucky Constitution to faithfully execute the laws. KY. CONST. § 81.

Rather than faithfully execute the laws, the Governor is violating statutory provisions by

removing and appointing members of the Board.

The Governor’s illegal use of KRS 12.028 for a purported temporary reorganization of

this Board does not achieve “greater economy, efficiency and improved administration.” Instead,

the orders illegally suspend and re-write Kentucky statute, and unilaterally create a Board that

will be to his liking and in accordance with his political policy initiatives. Therefore, the

Plaintiffs ask that this Court prevent the Beshear appointed Board from taking any structural or

other significant actions, including personnel actions, or engaging in any business regarding

potential structural or other significant actions, including major personnel actions, until this

Court has ruled on the legality of the executive order.

CONCLUSION

For the foregoing reasons, the Plaintiffs ask that the Court grant the motion for a

restraining order and temporary injunction to maintain the status quo until a decision may be

made on the merits.

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Respectfully Submitted,


Bart L. Greenwald

[email protected]

Ambrose O’Bryan

[email protected]

James Adams

[email protected]


9750 Ormsby Station Road, Suite 210


(502) 614-6974


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was electronically served via

email and/or the Court’s Electronic filing system on this 10th day of December, 2019, to the

following:

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EXHIBIT A

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EXHIBIT B

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DIVISION _

CIVIL ACTION NO. _________

GARY HOUCHENS, MILTON SEYMORE, BEN CUNDIFF,

TRACEY CUSICK, KATHEY GORNIK, HAL HEINER,

ALESA JOHNSON, JOE PAPALIA, LAURA TIMBERLAKE

And RICHARD GIMMEL PLAINTIFFS

v.

GOVERNOR ANDY BESHEAR, ET AL. DEFENDANTS

ORDER

This matter is before the Court on the motion of Plaintiffs for Temporary Injunctive relief

by Temporary Restraining Order and Temporary Injunction, pursuant to CR 65.01, CR 65.03, and

CR 65.04. The Court having considered the Motion and Memorandum of Law and the Plaintiff’s

Verified Complaint, and having heard oral argument on the Motion, and being otherwise

sufficiently advised, the Court finds that the Defendants, Governor Andy Beshear and Secretary of

Education and Workforce Development Jacqueline Coleman, shall be enjoined from enforcing or

acting under Executive Order 1. The Court finds as follows:

1. Plaintiffs’ rights are being or will be violated by the actions of the Defendants;

2. Plaintiffs will suffer immediate and irreparable injury, loss or damage pending a

final judgment in this action, or that the acts of the Defendants will tend to render a

final judgment ineffectual without the issuance of a temporary restraining order and

a temporary injunction;

3. The balancing of equities weighs in favor of the issuance of a temporary

restraining order and a temporary injunction, and the Plaintiffs will suffer

greater injury by the denial of temporary injunctive relief than it would by the

granting of such relief;

4. This action presents a substantial legal question; and

5. Plaintiffs have no adequate remedy at law. )

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Wherefore, IT IS ORDERED AND ADJUDGED that until further Order of this Court the

Defendants, Governor Andy Beshear and Secretary of Education and Workforce Development

Jacqueline Coleman, are immediately restrained and enjoined from directly or indirectly enforcing

or acting under Executive Order 1 whether alone or in concert with others, including any officer,

agent, employee and/or representative of same.

IT IS FURTHER ORDERED that this Order shall be binding upon the Defendants, and

their agents, employees, employer, and attorneys, and upon those persons that act in concert or

participation with them who receive actual notice of this Order by personal service or otherwise.

IT IS FURTHER ORDERED AND ADJUDGED that this Order shall remain in full force

and effect until such time as this Court specifically orders otherwise.

IT IS FURTHER ORDERED AND ADJUDGED that a Temporary Injunction shall issue

immediately and that security should be posted in the amount of $ _____.00, and should remain in

place.

SO ORDERED, this ___ of December, 2019.

___________________________

Franklin Circuit Court Judge

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Tendered by:


Bart L. Greenwald

[email protected]

Ambrose O’Bryan

[email protected]


9750 Ormsby Station Road, Suite 210


(502) 614-6974

(502) 614-6980 – Fax


Counsel for Plaintiff

______________________________

Franklin Circuit Court Judge

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mailto:[email protected]

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