David M. Ward v. Secretary of State, Ex Rel. Michael G. Adams in His Official Capacity

RENDERED: APRIL 28, 2022
TO BE PUBLISHED

Supreme Court of Kentucky
2020-SC-0520-I
2020-SC-0544-I

DAVID M. WARD; AND KENTUCKY APPELLANTS/
ASSOCIATION OF CRIMINAL DEFENSE CROSS-APPELLEES
LAWYERS, INC.

ON APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
NO. 20-CI-00471
V.

SENATOR WHITNEY WESTERFIELD, IN HIS APPELLEES/
PERSONAL AND OFFICIAL CAPACITIES; CROSS-APPELLANTS
MARSY’S LAW FOR KENTUCKY, LLC; AND
COMMONWEALTH OF KENTUCKY, EX REL.
ATTORNEY GENERAL DANIEL CAMERON

AND

SECRETARY OF STATE, EX REL. MICHAEL G. APPELLEES/
ADAMS, IN HIS OFFICIAL CAPACITY; THE CROSS-APPELLEES
KENTUCKY STATE BOARD OF ELECTIONS,
EX REL. MICHAEL G. ADAMS, IN HIS
OFFICIAL CAPACITY AS CHIEF ELECTION
OFFICIAL FOR THE COMMONWEALTH; AND
A.B. CHANDLER III, IN HIS OFFICIAL
CAPACITY AS CHAIRMAN

1
 OPINION OF THE COURT BY CHIEF JUSTICE MINTON

VACATING AND REMANDING

The parties appeal a ruling of the Franklin Circuit Court concerning the

second attempt to include Marsy’s Law, an amendment related to crime

victims’ rights, in the Kentucky Constitution. We accepted transfer from the

Court of Appeals because this case raises important questions regarding a

challenge to a constitutional ballot initiative. After careful review of the record,

we conclude that Appellants’ claims must be dismissed for lack of standing.

I. FACTS AND PROCEDURAL BACKGROUND

In 2018, the General Assembly proposed, and Kentucky voters ratified,

the constitutional amendment known as Marsy’s Law. After a legal challenge,

this Court invalidated the 2018 amendment because the entire text of the

proposed amendment was not placed on the ballot.1

In 2020, the General Assembly again proposed the Marsy’s Law

constitutional amendment. Appellants2 sued the Secretary of State, the State

Board of Elections, and the Chairperson of the State Board of Elections before

the general election. The Complaint sought declaratory and injunctive relief

either prohibiting Marsy’s Law from appearing on the ballot or, in the

alternative, preventing tabulation of votes on ratification of the amendment.

1 Westerfield v. Ward, 599 S.W.3d 738 (Ky. 2019) (hereinafter “Ward I”).
2 The Appellants in this action are David M. Ward, a resident and taxpayer in
this Commonwealth, and the Kentucky Association of Criminal Defense Lawyers
(“KACDL”), a nonprofit corporation advocating on behalf of attorneys engaged in the
defense of criminal prosecutions in the Court of Justice (collectively “Appellants”).

2
Appellants also brought facial challenges to the legality of substantive

provisions of Marsy’s Law.

The Kentucky Attorney General, Marsy’s Law for Kentucky, LLC, and

Senator Whitney Westerfield intervened as co-defendants. The Plaintiffs and

Intervening Defendants filed cross-motions for summary judgment.

In October 2020, the trial court granted partial summary judgment in favor of

the Intervening Defendants. The trial court ruled in favor of the Intervening

Defendants on Plaintiffs’ procedural claims. Still, the trial court concluded that

Appellants’ facial challenges to Marsy’s Law were not ripe because the

amendment had not yet been ratified by Kentucky voters. The trial court

withheld ruling on Appellants’ facial challenges and held those claims in

abeyance.

The parties filed cross-appeals. The Court of Appeals recommended

transfer of those appeals to this Court. This Court accepted transfer and

denied Appellants’ motion for emergency relief. In their response briefs to this

Court, Appellees challenged the justiciability of Appellants’ claims. While this

appeal was pending, Kentucky voters ratified the Marsy’s Law constitutional

amendment. We now address the parties’ arguments on appeal.

II. STANDARD OF REVIEW

“We review the trial court’s issuance of summary judgment de novo and

any factual findings will be upheld if supported by substantial evidence and

3
not clearly erroneous.”3 Whether Appellants have standing is a jurisdictional

question of law that is reviewed de novo.4

III. ANALYSIS

Section 112 of the Kentucky Constitution gives circuit courts original

jurisdiction in all justiciable causes not vested in another court.5 This Court

has held, and reaffirmed, that “the existence of a plaintiff's standing is a

constitutional requirement to prosecute any action in the courts of this

Commonwealth.”6 We have adopted the federal standard for standing

espoused in Lujan v. Defenders of Wildlife.7

To have constitutional standing, a “plaintiff must have suffered an injury

in fact—an invasion of a legally protected interest which is (a) concrete and

particularized, and (b) actual or imminent, not conjectural or hypothetical.”8

The party invoking jurisdiction bears the burden of establishing the elements of

standing.9

3 Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017).
4 Commonwealth v. B.H., 548 S.W.3d 238, 242 (Ky. 2018) (“Jurisdiction is a
question of law, and our review is de novo.”).
5 “The Circuit Court shall have original jurisdiction of all justiciable causes not
vested in some other court. It shall have such appellate jurisdiction as may be
provided by law.” Ky. Const. § 112(5).
6 Commonwealth Cabinet for Health & Fam. Servs., Dep’t for Medicaid Servs. v.
Sexton ex rel. Appalachian Reg’l Healthcare, Inc., 566 S.W.3d 185, 188 (Ky. 2018); see
also Beshear v. Ridgeway, ___S.W.3d___, 2021-SC-0225-I, 2022 WL 575442 at *1, 3
(Ky. Feb. 24, 2022); Overstreet v. Mayberry, 603 S.W.3d 244, 252 (Ky. 2020);
Commonwealth v. Bredhold, 599 S.W.3d 409, 414 (Ky. 2020).
7Sexton, 566 S.W.3d at 188 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992)).
8 Lujan, 504 U.S. at 560 (internal citations and quotations omitted).
9 Id. at 561.

4
 A. Appellants have not established constitutional standing as citizens
and voters.

Appellants have not met their burden of establishing that the alleged

injuries harmed them in a concrete and particularized manner. Instead,

Appellants’ claims constitute nonjusticiable generalized grievances because the

harms they assert are shared in equal measure by all citizens of the

Commonwealth.

One of the major principles underlying the standing doctrine is the

prohibition against “generalized grievances.”10 “[W]hen the asserted harm is a

‘generalized grievance’ shared in substantially equal measure by all or a large

class of citizens, that harm alone normally does not warrant exercise of

jurisdiction.”11

Kentucky courts recognize the prohibition against generalized grievances.

In Sexton, we explained that the prohibition against generalized grievances was

one of “two major federal prudential standing principles.”12 Even before Sexton

both this Court and the Kentucky Court of Appeals recognized the prohibition

against generalized grievances as part of our standing jurisprudence.13 And

10 Sexton, 566 S.W.3d at 193.
11 Warth v. Seldin, 422 U.S. 490, 499 (1975); see also Fed. Election Comm’n v.
Akins, 524 U.S. 11, 23 (1998); Young v. Lundergan, No. 2015-CA-431-MR, 2016 WL
1068978, at *4 (Ky. App. Mar. 18, 2016).
12 Sexton, 566 S.W.3d at 193.
13 See Lawson v. Attorney Gen., 415 S.W.3d 59, 67 (Ky. 2013) (explaining that
standing can refer to various judicially-related limitations on the exercise of
jurisdiction, such as barring adjudication of generalized grievances); Young, 2016 WL
1068978, at *4 (holding that the injury alleged by a voter was a generalized grievance
because it was common to other citizens); see also Wyatt Sassman, A Survey of
Constitutional Standing in State Courts, 8 Ky. J. Equine, Agric. & Nat. Resources L.
5
after Sexton, our Court has reiterated that to have standing a plaintiff must

have personally suffered some actual or threatened injury.14

Moreover, persuasive federal authority is helpful in defining the

parameters of the prohibition against generalized grievances. “To have

standing, a litigant must seek relief for an injury that affects him [or her] in a

‘personal and individual way.’”15 The litigant “must possess a ‘direct stake in

the outcome’ of the case.”16 A litigant raising a generally available grievance

about government, no matter how sincere, and claiming only harm to his and

every other citizen’s interest in the proper application of the laws, does not

state a justiciable case or controversy.17

Appellants contend that they have standing as citizens and voters. But

Appellants’ Complaint does not assert standing based on status as a voter.

The Complaint says that “Plaintiff David M. Ward is a resident of this

Commonwealth who pays taxes to the Commonwealth.” Furthermore, the

349, 369-70 (2016) (explaining that, before Sexton, standing in Kentucky appeared “to
be a self-imposed restraint based on a prohibition against generalized grievances”).
14 Overstreet, 603 S.W.3d at 252.
15 Hollingsworth v. Perry, 570 U.S. 693, 706 (2013) (quoting Lujan, 504 U.S. at
560).
16 Id. (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)).
Id. (citing Lujan, 504 U.S. at 573–74); Lance v. Coffman, 549 U.S. 437, 439
17

(2007) (per curiam ) (“Our refusal to serve as a forum for generalized grievances has a
lengthy pedigree.”); Allen v. Wright, 468 U.S. 737, 754 (1984) (“[A]n asserted right to
have the Government act in accordance with law is not sufficient, standing alone, to
confer jurisdiction on a federal court.”); Massachusetts v. Mellon, 262 U.S. 447, 488
(1923) (“The party who invokes the [judicial] power must be able to show . . . that he
has sustained or is immediately in danger of sustaining some direct injury . . . and not
merely that he suffers in some indefinite way in common with people generally.”).

6
Complaint does not allege that members of KACDL are voters. The Complaint

is devoid of any mention of Appellants being harmed as voters.

Even accepting that Appellants are voters and citizens, Appellants do not

allege a concrete and particularized injury. Appellants do not contend that

they misunderstood the contents of the Marsy’s Law ballot question. Nor have

Appellants argued that they are personally impacted by the substantive

provisions in Marsy’s Law. Instead, Appellants advance hypothetical harms on

behalf of unspecified injured voters and citizens. As such, Appellants have not

established that they are impacted by Marsy’s Law in a “personal and

individualized way.”18

Appellants contend that “[a]ny adult citizen of Kentucky has standing to

challenge the sufficiency of a proposed Constitutional amendment because

every citizen will be affected by it after ratification.” But Appellants’

statement—that every adult citizen in Kentucky has standing to challenge the

sufficiency of the Marsy’s Law constitutional amendment—essentially concedes

that their alleged injuries constitute nonjusticiable generalized grievances.

Appellants admit that any Kentuckian could assert injuries identical to those

contained in their Complaint. As such, Appellants are not directly affected by

Marsy’s Law.

Appellants invite this Court to create a special standing doctrine for

voters alleging injury in the context of a constitutional ballot initiative. It is

18 See Hollingsworth v. Perry, 570 U.S. 693, 706 (2013) (quoting Lujan, 504 U.S.
at 560).

7
true that Kentucky voters play a unique role in ratifying constitutional ballot

initiatives. Yet, Appellants have cited no authority supporting their contention

that voters challenging the procedural and substantive legality of constitutional

ballot initiatives should be exempted from the requirement of alleging an injury

in fact. The Kentucky Constitution limits the jurisdiction of Kentucky courts to

justiciable causes. So we must decline Appellants’ invitation because the

allegation of a concrete and particularized injury is a constitutional

prerequisite to prosecution of any action in the courts of this Commonwealth.

Additionally, our holding in Ward I has no impact on our analysis of

constitutional standing here. In Ward I, we considered whether this Court had

authority to address the parties’ claims on the merits based on separation of

powers.19 This Court did not, however, directly analyze whether Ward or

KACDL had constitutional standing under Sexton and its progeny. While

constitutional standing was raised before the circuit court in Ward I, the issue

of constitutional standing was abandoned on appeal.20 As such, we assumed,

without deciding, that KACDL had standing based on the same standing

arguments advanced by Appellants in Ward I.21 Since we did not render a

ruling on constitutional standing in Ward I, the issue of constitutional standing

related to these Appellants presents an issue of first impression for our Court.

19 Ward I, 599 S.W.3d at 744–46.
20 Id. at 746 n.16.
21 Id.

8
 We recognize that at least one case from this Court, Fletcher v. Wilson,22

suggests that voters may have pre-election standing to challenge ballot

access.23 Fletcher held that two duly qualified Democratic Party electors had

standing to challenge primary election ballot access of four Democratic

candidates for local office.24 But the holding in Fletcher has no direct impact

on the question of constitutional standing in this case.

First, the subject matter and scope of the alleged injury in Fletcher is

distinct from this case. Fletcher dealt with whether voters had pre-election

standing to challenge primary ballot access of candidates for local office.

Essentially, Fletcher and its progeny stand for the proposition that questions of

“eligibility for a candidate for nomination or election should . . . be determined

before the voting takes place.”25 Alternatively, this case deals with procedural

and facial challenges to a constitutional ballot initiative that can be brought by

any citizen in the Commonwealth. Fletcher neither held that voters enjoy

special constitutional standing in the context of election challenges nor

evaluated standing in the context of a voter challenge to a constitutional ballot

initiative. Instead, Fletcher’s analysis was limited to the narrow question of

22 495 S.W.2d 787 (Ky. 1973).
23 Kentucky Revised Statutes (KRS) 118.176 allows for challenges to a

candidate’s bona fide qualifications prior to an election. We do not consider statutory
standing to challenge ballot access or question a candidate’s qualifications in this
decision.
24 Fletcher, 495 S.W.2d at 794–75.
25 Id. at 792 (emphasis added).

9
whether the voters and citizens in that case had standing pre-election to

challenge candidate ballot access.

Second, Fletcher was decided in 1973, decades before we clarified our

standing jurisprudence in Sexton. In Sexton, we made clear that constitutional

standing is a jurisdictional prerequisite to bring a justiciable cause of action.

As a result, all litigants, including voters, must allege a concrete and

particularized injury-in-fact to invoke the jurisdiction of Kentucky courts.

Concluding that Appellants have standing to challenge the Marsy’s Law ballot

initiative based on Fletcher would constitute a sweeping expansion of the

holding in Fletcher and would be squarely inconsistent with Sexton and the

series of recent cases from this Court that have followed its rule.

Similarly, the holding of the Kentucky Court of Appeals in Chandler v.

Winchester26 has no impact on the question presented here. Chandler

examined whether the Attorney General could challenge a constitutional ballot

initiative concerning the budgets of local governments under Kentucky Revised

Statute (KRS) 120.280. The Court of Appeals concluded that the fifteen-day

post-election limitation period for contesting a constitutional ballot initiative in

KRS 120.280(1) applied and that the Attorney General’s challenge to the

election two years later was time-barred.27 That case is irrelevant here because

26 973 S.W.3d 78 (Ky. App. 1998).
27 Id. at 82.

10
there is no evidence or allegation that Appellants challenged the Marsy’s Law

amendment under KRS 120.280.28

Furthermore, the fact that Appellants sought declaratory relief has no

bearing on constitutional standing in this matter. It is true that “[t]he

[Declaratory Judgment] Act allows courts to determine a litigant's rights before

harm occurs.”29 Even so, litigants may not establish constitutional standing by

simply seeking declaratory relief. Instead, “[a]n actual, justiciable controversy

is a condition precedent to an action under our Declaratory Judgment Act.”30

As such, Appellants must have constitutional standing to bring an action,

regardless of the type of relief sought.

Lastly, the concept of irreparable harm is irrelevant to the question of

constitutional standing. Appellants cite persuasive federal authority for the

proposition that deprivation of constitutional rights causes irreparable harm.

The authorities cited by Appellants stand for the proposition “that when

reviewing a motion for a preliminary injunction, if it is found that a

28 We do not consider the existence of statutory standing under KRS 120.280
because we are unaware of any statutory contest to the Marsy’s Law constitutional
ballot initiative under KRS 120.280(1).
29 Commonwealth v. Ky. Ret. Sys., 396 S.W.3d 833, 839 (Ky. 2013).
30 Cameron v. Beshear, 628 S.W.3d 61, 68 (Ky. 2021) (internal quotations and
citations omitted). Cameron supports the proposition that constitutional standing is
an essential element of a justiciable cause of action, even in declaratory judgment
actions. See id. at 68. Additionally, in Cameron, we considered the narrow question of
when the Governor may sue to challenge an infringement of his asserted
constitutional authority. The questions presented by this case—whether these
Appellants have constitutional and taxpayer standing to bring procedural and facial
challenges to a constitutional ballot initiative—are markedly different than the issues
presented in Cameron.

11
constitutional right is being threatened or impaired, a finding of irreparable

injury is mandated.”31 So, if a constitutional right is being threatened or

impaired, it will satisfy the first factor of the four-factor federal

preliminary-injunction standard. But this case is not before the Court on

review of a preliminary injunction. The relevant question on appeal is whether

Appellants have suffered a sufficiently personal and direct injury to confer

constitutional standing—not whether Appellants demonstrated that they would

suffer irreparable harm without injunctive relief.

That is not to say that no citizens or voters have standing to bring similar

claims. At oral argument, Appellees conceded that a voter alleging that that he

or she misunderstood a constitutional ballot question would likely have

standing to challenge a constitutional ballot proposal. That same voter may

have the ability to bring a pre-election challenge once the ballot question is

finalized or published. Additionally, a criminal defendant, crime victim, or

other participant in the criminal-justice process may have standing to

challenge the substantive provisions of Marsy’s Law. Finally, certain

government officials, such as the Attorney General, Secretary of State, and

members of the Board of Elections may have standing to challenge procedural

defects surrounding enactment of a constitutional ballot initiative. We need

not resolve such advisory questions here. Our analysis in this case is limited

to whether these Appellants have standing as citizens and voters on this record.

31 Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (emphasis added); see

also 11A Wright & Miller, Fed. Prac. & Proc. Civ. § 2948.1 (3d ed. 2020).

12
Ultimately, Appellants lack standing as citizens and voters because they have

not demonstrated a concrete and particularized injury that is not shared with

all Kentucky citizens and voters.

B. Appellants have not demonstrated that they have taxpayer standing.

Appellants also contend that they have standing as taxpayers. It is true

that Kentucky courts recognize taxpayer standing in certain circumstances as

a matter of equity.32 Most cases involving taxpayer standing involve litigants

suing governmental entities or their agents to challenge the propriety of city,

county, or state expenditure of public funds.33

Of course, since government revenue is generated by taxes, all

government action necessarily involves some tangential relationship to taxes

and the expenditure of public funds. But that fact alone cannot confer

taxpayer standing. Our concept of constitutional standing would be

eviscerated if litigants could challenge any government action based on an

attenuated relationship between the harm alleged as a result of the government

action and the general expenditure of public funds to support government

functions. Rather, justiciability in the context of a taxpayer’s action requires

that the taxpayer represents an interest that is direct, pecuniary, and

substantial.34

32 See Sexton, 566 S.W.3d at 194 n.33; see also Overstreet, 603 S.W.3d at 263.
33 See Overstreet, 603 S.W.3d at 263.
34Cooper v. Kentuckian Citizen, 258 S.W.2d 695, 696 (Ky. 1953); see also
Doremus v. Board of Ed. of Borough of Hawthorne, 342 U.S. 429, 433–35 (1952);
Rosenbalm v. Commercial Bank of Middlesboro, 838 S.W.2d 423, 428 (Ky. App. 1992).

13
 Here, Appellants do not have an interest that is sufficiently direct,

pecuniary, and substantial to invoke taxpayer standing. In their procedural

claims, Appellants argue that the Legislature failed to follow Kentucky law

concerning the enactment and referral of the Marsy’s Law ballot initiative to

Kentucky voters; therefore, Appellants contend that no election should have

been held and any resulting expenditure of public funds to place the initiative

on the ballot was improper. But Appellants’ procedural claims are too

attenuated from the expenditure of public funds for the invocation of taxpayer

standing. Appellants have no direct, pecuniary, or substantial interest in the

expenditure of public funds on the alleged illegal election that is not shared in

equal part with every taxpayer in this Commonwealth.

Additionally, Appellants do not actually challenge the propriety of any

expenditure of public funds in any of their facial challenges. For instance,

Appellants note that Marsy’s Law grants victims the right to representation by

counsel but contend that Marsy’s Law is unclear if counsel must be appointed

for indigent victims and, if so, how appointed counsel will be compensated.

Appellants acknowledge that it is unclear if counsel must be appointed for

indigent victims in criminal matters under Marsy’s Law. Thus, by Appellants’

own admission, it is unclear if any expenditure of public funds is required in

order to implement this provision of Marsy’s Law.

Furthermore, Appellants acknowledge that no such expenditure of public

funds has been made. Appellants do not challenge government funding of

counsel for indigent victims. Instead, they complain that the General Assembly

14
failed to make an appropriation to support appointment of counsel to indigent

victims. As a result, this facial claim does not challenge the propriety of the

expenditure of public funds.

Appellants cite Stiglitz v. Schardien35 and its progeny for the proposition

that taxpayers have standing to challenge a legislative act that infringes upon

the rights of a citizen, taxpayer, and voter. Stiglitz, a 1931 case, held that

citizens, taxpayers, and voters had standing to challenge acts that

reapportioned state legislative districts because the acts infringed on citizens’

right to equal representation.36 But the Stiglitz court did not discuss citizen,

voter, and taxpayer standing as distinct concepts. Stiglitz did not hold that

taxpayers have blanket standing to challenge any legislative act regardless of

the existence of a pecuniary interest in the challenged expenditure of public

funds. Instead, Stiglitz’s holding on standing in the context of a challenge to

redistricting legislation relies heavily on the fact that the plaintiffs were citizens

and voters, not that those plaintiffs were taxpayers.37 As such, Stiglitz provides

little support for Appellants’ arguments that they have taxpayer standing in

this case.38

35 40 S.W.2d 315 (Ky. 1931).
36 Id. at 317–18.
37 See Beauchamp v. Silk, 120 S.W.2d 765, 766–67 (Ky. 1938) (“That (Stiglitz)
case, perhaps involved more of a political than a pecuniary right of the plaintiff
therein[.]”).
38 Beauchamp cites Stiglitz for the proposition that citizens, taxpayers, and
voters have standing to bring a lawsuit to prevent enforcement of a void legislative act.
See Beauchamp, 120 S.W.2d at 766–67. But Beauchamp is unpersuasive for the same
reasons as Stiglitz. Neither case engages in any reasoned analysis about
constitutional and taxpayer standing as distinct doctrines. And neither case
15
 Appellants also cite State Text-Book Commission v. Weathers39 in support

of their contention that they have taxpayer standing. In Weathers, a private

citizen sought a writ of mandamus alleging that the state text-book commission

violated numerous provisions of the statute defining the commission’s duties.40

The Court concluded that Weathers had standing to bring the mandamus

action as a private citizen seeking to enforce a public duty owed to the public.41

In so holding, the Court noted that the petition did not allege that Weathers

was a taxpayer.42 Instead, the petition “allege[d] his citizenship in the state,

and that he [was] a patron of its common schools, the first showing him to be a

member of the state, and the last showing him to have a direct interest in the

maintenance of its common schools, saying nothing of his being a contributor

to the expense of such maintenance.”43 Weathers did not hold that taxpayers

have blanket standing to challenge a legislative act without showing some

special of pecuniary interest in the alleged improper expenditure of public

funds. As a result, Weathers is unavailing here.

Of course, constitutional and taxpayer standing are not dissonant

concepts. Under Kentucky law, taxpayer standing may be properly invoked in

considered taxpayer standing in the context of a challenge to a constitutional ballot
initiative. As such, neither Stiglitz nor Beauchamp is dispositive on the issue of
taxpayer standing.
39 213 S.W. 207 (Ky. 1919).
40 Id. at 208.
41 Id. at 209.
42 Id.
43 Id.

16
circumstances in which a litigant challenges the propriety of expenditure of

public funds.44 Still, it bears repeating that litigants seeking to invoke taxpayer

standing must demonstrate that they represent an interest that is direct,

pecuniary, and substantial.45 A direct, pecuniary, and substantial interest on

the part of these Appellants is lacking here.

In sum, Appellants have neither cited nor are we aware of any authority

granting taxpayer standing in similar circumstances to those presented here.

As such, Appellants do not have standing as taxpayers to bring their asserted

claims.46

C. Our holding on standing here has no impact on our prior decision in
Ward I.

Our conclusion that Appellants lack standing in this action has no

impact on the precedential effect of our decision in Ward I. It is true that Ward

I involved similar claims and included similarly situated parties as those in this

action. Even so, the issues of constitutional and taxpayer standing were

neither challenged nor discussed in Ward I. The existence of unaddressed

jurisdictional defects in a previous action has no precedential effect.47 At

bottom, Ward I and the present case involve two closely related, yet distinct

44 See Sexton, 566 S.W.3d at 194 n.33; see also Overstreet, 603 S.W.3d at 263.
45 See Cooper v. Kentuckian Citizen, 258 S.W.2d at 696.
46 Appellants have not asserted associational or representative standing on the
part of Appellant KACDL. As a result, we do not consider associational or
representative standing here.
47 See Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (“[S]tanding was neither
challenged nor discussed in that case, and we have repeatedly held that the existence
of unaddressed jurisdictional defects has no precedential effect.”).

17
constitutional ballot initiatives. In Ward I, this Court reached a final, non-

appealable judgment, which remains good law.

IV. CONCLUSION

After carefully reviewing the record, we conclude that Appellants lack

constitutional standing to bring their claims because Appellants failed to allege

a concrete and particularized injury-in-fact on this record. Appellants have

also failed to demonstrate that they have taxpayer standing. As a result,

Appellants’ claims constitute nonjusticiable generalized grievances. The

judgment of the Franklin Circuit Court is vacated, and this matter is remanded

with instruction to dismiss the action in its entirety without prejudice.

All sitting. Conley, Hughes, Keller, Lambert, and Nickell, JJ., concur.

VanMeter, J., concurs in result only by separate opinion.

VANMETER, J., CONCURRING IN RESULT ONLY: In Sexton, we

established the mandatory constitutional requirement that

justiciability/standing is properly considered at every level of the judicial

process. 566 S.W.3d at 196-97. We decided Ward I nine months later.48

Notwithstanding the Sexton mandate, we glossed over and ignored

jurisdictional standing in Ward I and proceeded to decide the merits.49

48Sexton was initially rendered in September 2018; Ward I was initially
rendered in June 2019. Petitions for rehearing were filed and denied in each case, but
Sexton was finally decided four months before the initial rendition date for Ward I.
49 Ward I contains the statement language that “we find the constitutional
challenges to the proposed amendment in this case to be justiciable.” 599 S.W.3d at
745. But that holding was to address Sen. Westerfield’s argument that the proposal
and adoption of a constitutional amendment was a non-justiciable political question.

18
Admittedly, we noted that the challenges to standing had been dropped, 599

S.W.3d at 746 n. 16, but this implicit affirmation of standing comported with

longstanding recognition of voter standing to challenge ballot access. See

Fletcher v Wilson, 495 S.W.2d 787 (Ky. 1973) (discussing case law back to

1913); see also Gatewood v. Matthews, 403 S.W.2d 716 (Ky. 1966) (addressing

pre-election challenge to proposed revision to the Kentucky constitution). The

standing issue in this case, voter standing to challenge ballot access of

constitutional amendment, is functionally no different than the standing issue

directly addressed in Fletcher, i.e., voter standing to challenge a candidate’s

ballot access. I would recognize the appellants’ standing in this case,

independently of any statutory challenge under KRS 120.250.

That noted, I concur in the majority’s result which tacitly upholds the

amendment as approved by the voters of the Commonwealth, since, as

practical matter, no one will have properly challenged its enactment. My

review of the briefs and the record is that the appellants’ challenge fails on the

merits.

COUNSEL FOR APPELLANT/CROSS-APPELLEE DAVID M. WARD:

J. David Niehaus

Virginia H. Snell
Wyatt, Tarrant & Combs, LLP

COUNSEL FOR APPELLANT/CROSS-APPELLEE KENTUCKY ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS, INC.:

Michael R. Mazzoli
Cox & Mazzoli, PLLC
19
COUNSEL FOR APPELLEE/CROSS-APPELLANT MARSY’S LAW FOR
KENTUCKY, LLC:

John C. Roach
W. Keith Ransdell
Ransdell, Roach & Royse, PLLC

COUNSEL FOR APPELLEE/CROSS-APPELLANT SENATOR WHITNEY
WESTERFIELD:

David Fleenor
General Counsel
Office of the Senate President

COUNSEL FOR APPELLEE/CROSS-APPELLANT COMMONWEALTH OF
KENTUCKY EX REL. ATTORNEY GENERAL DANIEL CAMERON:

Matthew F. Kuhn
Brett R. Nolan
Office of the Solicitor General

COUNSEL FOR APPELLEE/CROSS-APPELLEE MICHAEL G. ADAMS, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF STATE:

R. Kent Westberry
Bridget M. Bush
Landrum & Shouse LLP

COUNSEL FOR APPELLEE/CROSS-APPELLEE A.B. CHANDLER, IN HIS
OFFICIAL CAPACITY AS CHAIRMAN OF THE KENTUCKY STATE BOARD OF
ELECTIONS:

Taylor A. Brown
General Counsel
State Board of Elections

20