Matthew G. Bevin in His Official Capacity as Governor of the Commonwealth of Kentucky v. Andy Beshear in His Official Capacity as Attorney General of the Commonwealth of Kentucky

TO BE PUBLISHED

2016-SC-000642-TG
(2016-CA-000174~-MR)

·MATTHEW G . BEVIN, (IN HIS OFFICIAL MOVANT
CAPACITY AS GOVERNOR OF THE
COMMONWEALTH OF KENTUCKY)

v. ON APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
NO. 16-CI-00738

ANDY BESHEAR, (IN HIS OFFICIAL RESPONDENT
CAPACITY AS ATTORNEY GENERAL OF
THE COMMONWEALTH OF KENTUCKY)

ORDER DISMISSING
We granted transfer from the Court of Appeals of Governor Matthew G.

Bevin's appeal from the circuit court's final judgment and grant of permanent

injunctive relief. The circuit ·court sustained the Attorney G~netal's challenge to
' ' '

the Governor's. authority under Kentucky Revised Statute (KRS) 12.028 to

abolish and reorganize the University of Louisville Board of Trustees and

permanently enjoined the Governor from implementing the Executive Orders

issued June 17, 2016, in connection with his effort.

After thorough review of the briefs and an oral argument, we hold that

intervening statutory law enacted by the General. Assembly has rendered moot .

the legal issues dedded by the Circuit court. We dismiss the appeal and
. remand the case to the circuit court' with directions to dismiss the complaint

with prejudice.

After entry of~he circuit court's final order on October 21, 2016, the
. . . . . -

General Asse:rribly passed and th~ Governor signed Senate Bill 12 on January ·.

7, 2017. SB 12 superseded the disputed Executive Orders of June 17, 20.16. It

abolished the then-existing University of LOuisville Board of Trustees and ·

created a new board. Senate Bill 12 also changed the numerical structure of

the bo.ard, required board members to be confirmed by the Senate, and

increased the proportional share of racfal-minority members who sit on the

board.

Following passage·of Senate Bill 12, the General Assembly enacted
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companion legislation. Sena~e Bill 107 was introduced on March 15, 2017, and .

the Govern~r signed it on March 21,. 20 l 7. Because Senate Bill 107r contained

an emergency clause, it became effective immediately upon signature by the

Governor. Senate Bill 107 provides a specific statutory path for a governor to

disband and reconstitute a university's governing board and creates ~ proc~ss

for the remov~ of individual members of a university's governing bo"ard.

We do not decide moot
.
cases because the
.
role of our Court is not to give

advisory opinions.I This Court indulged in an in-:-depth analysis of the

mootness doctrine in Morgan v. Getter.2 Getter provides a thorough examination

. of the jurisprudential approach taken in J<.entucky with regard to. the mootness

·doctrine. And while we discuss multiple exceptions to the mootness doctrine ih.

1 Morgan v. Getter, 441 S.W;3d 94 (Ky. 2014) (quoting Louisville Transit
Company v. Department of Motor Transportation, 286 S.W. 536, 538 (Ky. 1956)).
2 Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014).
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.Getter, the one requiring discussion today is the "capable of repetition yet

evading review" exception.:3

For the capabie-of-repetition-yet-evadirtg-review exception to apply, two

elements must be met. First, "the challenged action must .be too sho~t in

duration to pe fully litigated prior to its cessation or expiration. "4 And second,

"there must be a reasonable. expectation. that the same complaining party
.
will

be subjected to the sanie action again. "5 Because the General Assembly passed

both Senate Bills 12 and 107, it has displaced KRS 12.028 as it applies to the

facts before us today.
Senate Bill 107 r.equires that the Governor receive input from the Council

on Postsecondary Education on removal of universicy-board members and, like

Senate Bill 12, requires any.gubernatorial appointees to a university board be

confirmed by the Senate. As a result, the newly enacted specific statutory path

controls over KRS 12.028.6 Because the nW statutory path controls the

a In Getter we addressed the four most recognized exceptions to the mootness
doctrine: (1) capable of repetition yet evading review; (2) the public interest_ exception;
(3) the-voluntary cessation exception; and (4) the collateral consequences exception.
4 Id. (citing Philpot v. Patton, 837 S.W.2d 491 (Ky. 1992)).
s Id.
6 " ... Kentucky follows the rule of statutory construction that the more specific
statute controls over the more general statute." Light v. City of Louisville, 248 S.W.3d
559, 563 (Ky. 2008); see Withers v. University of Kentucky, 939 ~.W.2d 340 (Ky. 1997);
City of Bowling Green v. Board of Education of Bowling Green Independent School
District, 443 S.W.2d 243 (Ky. 1969).. This Court reaffirmed that principle in 2013 with
Abel v. Austin when we stated, "where there is both a specific statute and a general
statute seemingly applicable to the same subject [the rule] is that the specific statute
controls." Abel v. Austin, 411 S. W.3d 728, 738 (Ky. 2013) (citing Parts Depot, Inc. v.
Beiswenger, 170 S.W.3d 354, 361(Ky.2005)) (quoting Meyers v. ChapmanPrintirig
. Co., Inc., 840 S.W.2d 814, 819 (Ky. 1992)). Further, "where an apparent conflict in
statutes exists, the 'later statute is given effect over an earlier statute."' Bowling v.
Kentucky Dep't.ofCorr'., 301S.W.3d478, 491 (Ky. 2009) (quoting Troxell v. Trammell,
730 S.W.2d 525, 528 (Ky. 1987)).

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governor's actions, the second element for the capable-of-repetition-yet-

evading-review exception necessarily fails, because any future attempt to

reorganize university boards must. follow a new and distinct statutory scheme.

It is for this reason-a deliberate action by the General Assembly intervening to

provide greater clarity of law-that the case today is moot.

Accordingly, the Court ORDERS the case is dismissed as moot and

remanded to the circuit court with directions to dismiss the action with

prejudice.

All sitting. All concur.

ENTERED: September 28, 2017.

USTICE JOHN D. MINTON, R.

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