RENDERED: OCTOBER 6, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0964-MR
DANIEL CAMERON, ATTORNEY
GENERAL, ON BEHALF OF
THE COMMONWEALTH OF
KENTUCKY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE CHARLES L. CUNNINGHAM, JUDGE
ACTION NO. 22-CI-002816
JEFFERSON COUNTY BOARD
OF EDUCATION AND DR. JASON E.
GLASS, IN HIS OFFICIAL CAPACITY
AS COMMISSIONER OF
EDUCATION APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.
KAREM, JUDGE: In 2022, the Kentucky General Assembly passed an omnibus
education bill, Senate Bill (S.B.) 1, entitled “an Act relating to education and
declaring an emergency.”1 Section 3(2) of S.B. 1, codified in Kentucky Revised
Statutes (KRS) 160.370(2), significantly modifies the relationship between local
boards of education and superintendents, by giving greater autonomy and power to
the superintendents. KRS 160.370(2) only applies, however, in “a county school
district in a county with a consolidated local government[.]” KRS 160.370(2).
The only school district which meets this description is that of Jefferson County.
The Jefferson County Board of Education (the Board) sought a
declaratory judgment in Jefferson Circuit Court, contending that five specific
provisions of KRS 160.370(2) violate the ban on special and local legislation found
in Sections 59 and 60 of the Kentucky Constitution. The circuit court ruled that
the contested provisions violated not only Section 59 but also the equal protection
clause found in Section 2 of the Kentucky Constitution.
The appellant, the Attorney General of Kentucky, argues that the
Board lacked constitutional standing to challenge the legislation and failed to name
a necessary party to the suit. As to the merits, he argues that the challenged
provisions survive constitutional scrutiny under Sections 59 and 60 because they
do not apply to a particular individual, object, or locale and that the legislation
creates a classification which passes rational basis review for purposes of equal
protection.
1
2022 Ky. Acts ch. 196, S.B. 1.
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Upon careful consideration, we hold that the Board had standing to
bring this suit, that it did not fail to name a necessary party, and that the contested
provisions of KRS 160.370(2) are local or special legislation prohibited under
Sections 59 and 60 of the Kentucky Constitution.
I. FACTUAL AND PROCEDURAL BACKGROUND
The five subsections of KRS 160.370(2) at issue in this appeal provide
as follows:
(2) For a county school district in a county with a
consolidated local government adopted under KRS
Chapter 67C:
(a) A local board of education shall:
1. Delegate authority to the superintendent
over the district’s day-to-day operations and
implementation of the board-approved
strategic plan in a manner that promotes the
efficient, timely operation of the district,
including but not limited to the authority
over contracts related to daily operations of
the district, pupil transportation, personnel
matters, and the organizational structure of
administrative staff;
2. Except as expressly required by statute,
including subparagraphs 3. and 5. of this
paragraph, not meet more than once every
four (4) weeks for the purpose of approving
necessary administrative matters[.]
KRS 160.370(2)(a)1., 2.
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(b) Notwithstanding any provision to the contrary in
subsection (1) of this section, the superintendent shall:
2. Prepare all rules, regulations, bylaws, and
statements of policy for approval and adoption by
the board, with approval not to be withheld
without a two-thirds (2/3) vote of the board to
deny approval or adoption; [and]
....
5. Notwithstanding any law that assigns an
administrative duty, responsibility, or authority to
a board of education, or other law to the contrary,
be responsible for any administrative duty not
explicitly granted to the board under paragraph (a)
of this subsection[.]
KRS 160.370(2)(b)2., 5.
(c) If the county adopts the provisions of the Kentucky
Model Procurement Code, the board shall authorize the
superintendent to approve purchases, in accordance with
small purchase procedures adopted by the board, for any
contract for which a determination is made that the
aggregate amount of the contract does not exceed two
hundred fifty thousand dollars ($250,000). The board
shall authorize the superintendent to approve a line-item
transfer within its annual budget as she or he deems
necessary, provided that the aggregate amount of any
individual transfer does not exceed two hundred fifty
thousand dollars ($250,000). The superintendent shall
provide a quarterly report to the board on any purchases
made under this subsection.
KRS 160.370(2)(c).
To summarize, the provisions that are being challenged require the
school board to give the superintendent authority over the “day-to-day operations
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and implementation of the board-approved strategic plan”; require the board to
limit its meetings to once every four weeks; require a two-thirds vote of the board
to disapprove a rule, regulation, by-law, or statement of policy of the
superintendent; require the board to grant the superintendent responsibility for
“any administrative duty not explicitly granted to the [school] board”; and require
the board to authorize the superintendent to make purchases not exceeding
$250,000 and transfers to the annual budget in the same amount, without board
approval.
As previously stated, the Jefferson County school district is currently
the only “county school district in a county with a consolidated local government
adopted under KRS Chapter 67C[.]” KRS 160.370(2).
The Board’s complaint named one defendant, Dr. Jason E. Glass, in
his official capacity as the Commissioner of Education of Kentucky (the
Commissioner). The complaint sought a declaratory judgment that the challenged
provisions of S.B. 1 violate the prohibition against special or local legislation
found in Sections 59 and 60 of the Kentucky Constitution and requested temporary
and permanent injunctive relief. The Attorney General entered an appearance,
pursuant to KRS 418.075(1) and KRS 15.020(3), to defend the constitutionality of
the legislation.
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The circuit court conducted a hearing at which the Commissioner
expressed no opinion regarding the constitutionality of the provisions, or whether
he would enforce them, stating it was not his role to determine if they were
constitutional and that he had to assume they were constitutional until told
otherwise. The Attorney General argued that because the Commissioner was not
taking a position contrary to the Board it was unclear whether a case or
controversy existed. Counsel for the Board indicated that Dr. Marty Pollio, the
Superintendent of the Jefferson County School District, was not planning to defend
the challenged provisions.
The Jefferson Circuit Court entered a declaratory judgment holding
that the challenged provisions violate Section 59 of the Kentucky Constitution,
which prohibits special and local legislation. Of its own accord, it held that the
provisions also violate the equal protection clause of Section 2 of the Kentucky
Constitution. Its order declared that the Board did not have to comply with the
provisions, but it did not enter an injunction, explaining that it did “not envision,
absent a differing opinion being issued by an appellate court, that anyone will be
actively trying to enforce the contested provisions once this declaratory judgment
has been disseminated.” The circuit court retained the right to enter an injunction
if any attempts were made to enforce the provisions after the date the statute
became effective. Upon unopposed motion by the Board, the circuit court entered
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a motion to amend the judgment to clarify the specific provisions of S.B. 1 to
which the declaratory judgment applied. This appeal by the Attorney General
followed. The President of the Kentucky Senate, Robert Stivers, submitted an
amicus curiae brief defending the legislation.
II. STANDARD OF REVIEW
“The standard of review on appeal from a declaratory judgment is
whether the judgment was clearly erroneous.” Public Service Commission of
Kentucky v. Metropolitan Housing Coalition, 652 S.W.3d 648, 651 (Ky. App.
2022), discretionary review denied (Oct. 12, 2022) (citing American
Interinsurance Exchange v. Norton, 631 S.W.2d 851, 852 (Ky. App. 1982)).
III. ANALYSIS
i. The Board had standing to challenge the statutory provisions
The Attorney General argues that the Board lacked constitutional
standing to bring this suit. Whether the Board has standing “is a jurisdictional
question of law that is reviewed de novo.” Ward v. Westerfield, 653 S.W.3d 48, 51
(Ky. 2022), reh’g denied (Sep. 22, 2022) (citation omitted).
The existence of standing is of paramount importance in any lawsuit.
The Kentucky Supreme 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.’” Id. (quoting Commonwealth Cabinet for Health
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& Family Services, Department for Medicaid Services v. Sexton by & through
Appalachian Regional Healthcare, Inc., 566 S.W.3d 185, 188 (Ky. 2018)).
To determine whether a party has standing, Kentucky has adopted the
federal Lujan test. Sexton, 566 S.W.3d at 196; see Lujan v. Defenders of Wildlife,
504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). The test
requires the plaintiff to prove three elements: (1) injury, (2) causation, and (3)
redressability. Id. “To invoke the court’s jurisdiction, the plaintiff must allege an
injury caused by the defendant of a sort the court is able to redress.” Kenton
County Board of Adjustment v. Meitzen, 607 S.W.3d 586, 597 (Ky. 2020) (citations
omitted). Kentucky’s Declaratory Judgment Act allows the courts to determine a
litigant’s rights before harm occurs if the plaintiff shows the existence of an actual
controversy. Commonwealth v. Kentucky Retirement Systems, 396 S.W.3d 833,
839 (Ky. 2013); KRS 418.040. Such a controversy occurs when a defendant’s
position would “impair, thwart, obstruct or defeat plaintiff in his rights.” Kentucky
Retirement Systems, 396 S.W.3d at 839 (quoting Revis v. Daugherty, 215 Ky. 823,
287 S.W. 28, 29 (1926)).
The Attorney General argues that the Board failed to prove the
elements of causation and redressability, because even if the challenged provisions
injure the Board by transferring some of its powers to the Superintendent, the
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Board cannot show that the Commissioner caused that injury or that the Court can
redress that injury by granting relief against the Commissioner.
When, as in this case, a plaintiff is bringing a pre-enforcement
challenge to the constitutionality of a statute, the Lujan elements of causation and
redressability are met when the plaintiff names as the defendant the government
official charged with enforcing the law. So, for example, plaintiffs who brought
suit against the Governor and the Commissioner of Agriculture for failure to
enforce animal protection statutes failed to meet the Lujan element of causation
because “the animal shelter statutes do not vest enforcement power with the
Governor or the Commissioner of Agriculture.” Kasey v. Beshear, 626 S.W.3d
204, 209 (Ky. App. 2021), discretionary review denied (Aug. 18, 2021). By
contrast, plaintiffs who challenged the constitutionality of the Education
Opportunity Account Act as impermissibly redirecting state revenues to public
schools properly named as defendants the Secretary of the Kentucky Finance and
Administration Cabinet and the Commissioner of the Kentucky Department of
Revenue “based on their statutorily-prescribed roles in implementing the
program.” Commonwealth ex rel. Cameron v. Johnson, 658 S.W.3d 25, 30 (Ky.
2022).
Kentucky law in this respect mirrors the federal standard, which
provides that “when a plaintiff brings a pre-enforcement challenge to the
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constitutionality of a particular statutory provision, the causation element of
standing requires the named defendants to possess authority to enforce the
complained-of provision.” Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir.
2007). For standing to exist, there must be “an actual enforcement connection –
some enforcement power or act that can be enjoined – between the defendant
official and the challenged statute.” Okpalobi v. Foster, 244 F.3d 405, 419 (5th
Cir. 2001). Similarly, to meet the redressability prong of the Lujan test in the
context of a challenge to a statute, the named defendant must have the power to
enforce the challenged statute. Bronson, 500 F.3d at 1111. The enforcement
requirement is critically important because, without it, a court could issue “what
would amount to an advisory opinion without the possibility of any judicial relief.”
California v. Texas, 539 U.S. ___, 141 S. Ct. 2104, 2116, 210 L. Ed. 2d 230 (2021)
(internal quotation marks and citation omitted).
The Board argues that the Commissioner, the chief state school
officer,2 was the appropriate defendant for purposes of standing because the
contested statutory provisions are enforceable only by the Commissioner, as
provided in KRS 156.210, which states:
2
The Commissioner is appointed by the Education Management Selection Commission “to carry
out the duties of the chief state school officer.” KRS 156.147(2).
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(1) The chief state school officer shall have access to the
papers, books and records of all teachers, trustees,
superintendents, or other public school officials.
(2) He may administer oaths and may examine witnesses
under oath in any part of the state in any matter
pertaining to the public schools, and may cause the
testimony to be reduced to writing. He may issue process
to compel attendance of witnesses before him and
compel witnesses to testify in any investigation he is
authorized to make.
(3) When he or his assistants find any mismanagement,
misconduct, violation of law, or wrongful or improper
use of any district or state school fund, or neglect in the
performance of duty on the part of any official, he shall
report the same, and any other violation of the school
laws discovered by him, to the Kentucky Board of
Education, which shall, through the chief state school
officer or one (1) of his assistants, call in the county
attorney or the Commonwealth’s attorney in the county
or district where the violation occurs, and the attorney so
called in shall assist in the indictment, prosecution, and
conviction of the accused. If prosecution is not
warrantable, the Kentucky Board of Education may
rectify and regulate all such matters.
KRS 156.210.
The Attorney General argues that the challenged statutory provisions
do not provide the Commissioner with sufficient enforcement powers to create
standing. He points out that the challenged legislation does not transfer the
Board’s powers to the Commissioner, but to the Superintendent, and it does not
empower the Commissioner to take any action to enforce the provisions. He
contends that KRS 156.210(3) cannot make up for the Commissioner’s “lack of
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role” and that any fear he will choose to enforce the statutory provisions is “pure
conjecture.”
But the Commissioner’s duty to enforce the statute is not conjectural;
it is mandatory. The Commissioner is the executive and administrative officer of
the Kentucky Board of Education in its administration of all educational matters
and functions. KRS 156.148(3). The Commissioner must report any violations of
the law to the Board, which is required, through the Commissioner or his
assistants, to call in the county attorney or Commonwealth’s attorney who in turn
is required to assist in prosecuting the accused. KRS 156.210(3). If prosecution is
not warranted, the Kentucky Board of Education has the discretion to rectify and
regulate the matter. Id. Whether a defendant possesses enforcement authority
sufficient for standing purposes turns on whether the defendant “has ‘some
connection’ with the enforcement of the [challenged state law].” Digital
Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 957 (8th Cir. 2015). The
Commissioner’s role under KRS 156.210(3) meets this standard.
The Attorney General contends that because the challenged legislation
does not contain any specific internal provision empowering the Commissioner to
take any action that could harm the Board, the Board is unable to establish that any
injury it suffers is traceable to the Commissioner. He relies on California v. Texas,
supra, a case in which the plaintiffs claimed the Patient Protection and Affordable
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Care Act, which required them to purchase minimal essential health insurance
coverage, was unconstitutional. Originally, the Act imposed a monetary penalty
on individuals for failing to purchase such coverage, and provided that the penalty
would be included with the taxpayer’s federal tax return. Accordingly, the IRS
required taxpayers to report on their federal income tax return whether they carried
minimum essential coverage. Congress thereafter amended the Act to reduce that
penalty to $0. The Supreme Court held that this amendment deprived the plaintiffs
of standing because “the statutory provision, while it tells them to obtain that
[minimum essential health insurance] coverage, has no means of enforcement.
With the penalty zeroed out, the IRS can no longer seek a penalty from those who
fail to comply.” California, 141 S. Ct. at 2114. “Because of this, there is no
possible Government action that is causally connected to the plaintiffs’ injury – the
costs of purchasing health insurance.” Id. If the monetary penalty still existed, the
IRS would have enforcement authority; without the penalty, the IRS had nothing to
enforce and there was simply no means to compel the plaintiffs to purchase the
insurance.
By contrast, KRS 156.210(3) imposes a clear and mandatory duty on
the Commissioner to report violations of law and to seek enforcement of those
laws. The Commissioner has the means to compel enforcement of statutes, either
via criminal proceedings or referral to the state Board, which is responsible for
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“the management and control of the common schools and all programs operated in
these schools,” KRS 156.070(1), and whose sweeping powers include the ability to
remove school board members. See Gearhart v. Kentucky State Bd. of Educ., 355
S.W.2d 667, 670 (Ky. 1962). It is true that when a prosecution is not deemed
appropriate, the Kentucky Board of Education is given the discretion to rectify and
regulate all such matters, but the Commissioner is the entity tasked with initiating
and executing such a proceeding.
The Attorney General argues that Superintendent Pollio is nonetheless
free to follow the challenged provisions without any interference from the
Commissioner. But the Commissioner has the authority and the duty under KRS
156.210(3) to proceed against the Superintendent if he attempts to follow the
provisions after they are declared unconstitutional.
We conclude that the Board had standing to bring this suit because the
Commissioner possesses sufficient enforcement powers to meet the causation and
redressability elements of the Lujan test.
ii. The Superintendent was not a necessary party
In a related argument, the Attorney General argues that this appeal
should be dismissed because Superintendent Pollio was a necessary party under
both Kentucky Rules of Civil Procedure (CR) 19.01 and the terms of the
Declaratory Judgment Act.
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CR 19.01 provides in pertinent part that
[a] person who is subject to service of process, either
personal or constructive, shall be joined as a party in the
action if (a) in his absence complete relief cannot be
accorded among those already parties, or (b) he claims an
interest relating to the subject of the action and is so
situated that the disposition of the action in his absence
may (i) as a practical matter impair or impede his ability
to protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest. If he has not been so
joined, the court shall order that he be made a party. If
he should join as a plaintiff but refuses to do so, he may
be made a defendant, or, in a proper case an involuntary
plaintiff.
The Declaratory Judgment Act states that “[w]hen declaratory relief is
sought, all persons shall be made parties who have or claim any interest which
would be affected by the declaration, and no declaration shall prejudice the rights
of persons not parties to the proceeding.” KRS 418.075.
The Attorney General argues that, fundamentally, the Board’s dispute
is with the Superintendent, whatever Dr. Pollio’s personal view of the matter and
his personal assurances that he will not follow the statute, and that the Board
cannot seek judicial relief with respect to the Superintendent’s duties without
naming him as a party.
As a preliminary matter, the Board contends that because the Attorney
General did not intervene in the lawsuit and become a party, choosing instead to
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enter an appearance to defend the constitutionality of the challenged provisions, he
is not empowered to raise this issue at all. The Board relies on a series of cases
which hold that CR 19.01 can be invoked only by parties. “[T]he provision of the
Declaratory Judgment Act relating to parties, KRS 418.075, and . . . the civil rule
which prescribes what parties shall be joined if feasible, CR 19.01[,] . . . can be
invoked only by parties, not by a person who seeks to become a party.” Murphy v.
Lexington-Fayette County Airport Bd., 472 S.W.2d 688, 689-90 (Ky. 1971).
(Emphasis in original.) Holding otherwise would permit a nonparty to “simply lie
back and await the result of the action in the circuit court and then, if not satisfied
with the judgment, compel a retrial by the device of intervening after judgment.”
Id. at 690. Uninsured Employers’ Fund v. Bradley, 244 S.W.3d 741, 746 (Ky.
App. 2007).
Under KRS 418.075(1), the Attorney General is specifically entitled
to be heard regarding the validity of a statute, without becoming a party. The
Attorney General, although not a party, was present from the outset of this
litigation and argued that the Superintendent was a necessary party; he did not “lie
back” and await the outcome of the proceedings before raising an attack on the
judgment. Under these circumstances, the Attorney General is entitled to appellate
review of his argument that the Superintendent was a necessary party.
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The express language of the challenged provisions requires action on
the part of the Board to delegate authority to the Superintendent over day-to-day
operations and requires the Board to authorize him to approve purchases. KRS
160.370(2)(a)1. and 160.370(2)(c). The Superintendent is not empowered to force
the Board to limit the frequency of its meetings. KRS 160.370(2)(a)2. Only KRS
160.370(2)(b)2. and 5. expressly constrain the Board from withholding its approval
of the Superintendent’s rules and regulations without a two-thirds vote and make
the Superintendent responsible for any administrative duty not explicitly granted to
the Board. But the Superintendent is not given any means by which to enforce
these latter provisions. The Superintendent’s presence as a party was not required.
iii. The contested provisions violate the prohibition against special and local
legislation
Finally, we address whether the circuit court erred in holding that the
challenged legislation violates the prohibition against special or local legislation
found in Sections 59 and 60 of the Kentucky Constitution. The constitutionality of
a statute is a question of law which we review de novo. Teco/Perry County Coal v.
Feltner, 582 S.W.3d 42, 45 (Ky. 2019). “In considering an attack on the
constitutionality of legislation, this Court has continually resolved any doubt in
favor of constitutionality rather than unconstitutionality.” S.W. v. S.W.M., 647
S.W.3d 866, 873 (Ky. App. 2022), discretionary review denied (Aug. 16, 2022).
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Sections 59 and 60 first appeared in Kentucky’s fourth and final
Constitution in 1891. They represented an attempt to prevent the legislature from
wasting its time on mundane and trivial local matters and neglecting general
legislation. Calloway County Sheriff’s Department v. Woodall, 607 S.W.3d 557,
571 (Ky. 2020).
Section 59 expressly forbids local or special legislation relating to the
management of public schools. It states in relevant part that “[t]he General
Assembly shall not pass local or special acts concerning any of the following
subjects, or for any of the following purposes, namely: . . . [t]o provide for the
management of common schools.” KY. CONST. § 59(25).
Section 60 provides that
[t]he General Assembly shall not indirectly enact any
special or local act by the repeal in part of a general act,
or by exempting from the operation of a general act any
city, town, district or county; but laws repealing local or
special acts may be enacted. No law shall be enacted
granting powers or privileges in any case where the
granting of such powers or privileges shall have been
provided for by a general law, nor where the courts have
jurisdiction to grant the same or to give the relief asked
for. No law, except such as relates to the sale, loan or
gift of vinous, spirituous or malt liquors, bridges,
turnpikes or other public roads, public buildings or
improvements, fencing, running at large of stock, matters
pertaining to common schools, paupers, and the
regulation by counties, cities, towns or other
municipalities of their local affairs, shall be enacted to
take effect upon the approval of any other authority than
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the General Assembly, unless otherwise expressly
provided in this Constitution.
KY. CONST. § 60.
The original test for a violation of Section 59 was simply that “special
legislation applies to particular places or persons as distinguished from classes of
places or persons[.]” Woodall, 607 S.W.3d at 567 (quoting Greene v. Caldwell,
170 Ky. 571, 587, 186 S.W. 648, 654 (1916)). With the passage of time, however,
special, or local laws became confused with class legislation and for years,
Kentucky courts mistakenly applied what was essentially an equal protection
analysis to the special legislation prohibition in Section 59. They followed the test
set out in Schoo v. Rose, 270 S.W.2d 940 (Ky. 1954), which states: “[I]n order for
a law to be general in its constitutional sense it must meet the following
requirements: (1) [i]t must apply equally to all in a class, and (2) there must be
distinctive and natural reasons inducing and supporting the classification.” Id. at
941.
The Woodall Court held that the Schoo test, whose origins can be
traced to the 1792 Constitution, does not “comport with a proper interpretation” of
Sections 59 and 60 as they were understood at the time of the passage of the Third
Constitution in 1891. Woodall, 607 S.W.3d at 566. Woodall set forth the
following test which represents a return to the original test: a statute is special or
local legislation prohibited by Sections 59 and 60 if “the statute applies to a
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particular individual, object or locale.” Challenges based on classification, on the
other hand, succeed or fail on the basis of equal protection analysis under Sections
1, 2, and 3 of the Kentucky Constitution. Woodall, 607 S.W.3d at 573.
The circuit court held that the challenged legislation in this case
violated Section 59 because, although it did not mention Jefferson County
expressly by name, the provisions plainly singled out counties with a type of
governance that only exists in Jefferson County.
The Attorney General argues that the challenged provisions instead
represent a classification which could apply to any school district in a county with
a consolidated local government that exists now, or in the future, and consequently
the statute is one of general application across the entire Commonwealth. The
Attorney General points out that nothing is preventing a city in a county with a
population of more than 250,000 residents from choosing to become a city of the
first class and thereafter opting for consolidation with its county under KRS
67C.101(1). In other words, the statute applies to a class rather than a specific
individual, object, or locale, and therefore does not violate Section 59.
In the same vein, the amicus brief of the President of the Kentucky
Senate contends that this case falls squarely in a line of cases holding that statutes
applicable only in counties of a certain population are not special, local legislation
under Section 59. For example, in Winston v. Stone, our highest court held that a
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taxation statute applying only to counties with a population greater than 75,000 did
not violate Section 59. Winston v. Stone, 102 Ky. 423, 43 S.W. 397 (1897),
overruled on other grounds by Vaughn v. Knopf, 895 S.W.2d 566 (Ky. 1995). The
Court reasoned that the statute
operates upon a multitude of property of like character
owned by persons all over the state, and, in our judgment,
it is neither local nor special, but general in purpose and
detail, and most effective for securing to the state the
revenue it seeks to collect. . . . It may be a fact that
Jefferson [C]ounty is the only county in the state having
a population in excess of 75,000, but the statute in
question would apply to all counties of that class within
the state[.]
Id. at 398.
Similarly, in Sims v. Board of Education of Jefferson County, Ky., 290
S.W.2d 491 (Ky. 1956), it was held that a statute which applied only to boards of
education in a county containing a city of the first class did not violate Section 59,
because it would apply in any county that in the future contained a city of the first
class. “While it is not probable that another city will qualify as a first-class city in
Kentucky at any time in the immediate future, nevertheless, it is always possible
and the statute would then be applicable to more than one county.” Sims, 290
S.W.2d at 495. The Sims Court ultimately applied the rational basis test that was
rejected by Woodall to approve the legislation, stating “[w]e have long . . . held
that a legislative enactment is not necessarily local nor repugnant to Section 59 of
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our Kentucky Constitution because such enactment applies to only one class or
group of subjects, provided that the classification thus made is not unreasonable
nor arbitrary.” Id. at 495 (citation omitted).
In response, the Board argues that the challenged legislation does
indeed apply to a particular individual, object, or locale, not to a class, and that an
express reference to Jefferson County is not required for the legislation to be
special or local. The Board relies on a more recent opinion, University of
Cumberlands v. Pennybacker, 308 S.W.3d 668 (Ky. 2010), which addressed the
constitutionality of a bill providing for the construction of a pharmacy school
building on the campus of the University of the Cumberlands, a Baptist college
located in Whitley County. The bill also provided for a Pharmacy Scholarship
Program to benefit pharmacy students “at a private four (4) year institution of
higher education with a main campus located in an Appalachian Regional
Commission county.” Pennybacker, 308 S.W.3d at 671. “No party to this
litigation has questioned that the sole institution which would fit that description is
[the University of the Cumberlands], providing the Pharmacy School is built.” Id.
at 683. The Court held that the Pharmacy Scholarship Program was special
legislation which violates Section 59, based on “the inescapable conclusion . . .
that the Pharmacy Scholarship Program was intended only for students attending
the anticipated UC Pharmacy School.” Id. at 683-84.
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Of key importance is the Woodall Court’s statement that even though
the Pennybacker Court applied the superseded Schoo test in determining that the
legislation at issue was unconstitutional, it “reached [the] correct result since the
statute applied to [a] particular object.” Woodall, 607 S.W.3d at 573 n.19. Under
Pennybacker and Woodall, an express reference to a particular locale is not an
essential prerequisite to finding a violation of Section 59; a description that can
apply to only one individual, object, or locale may be sufficient. The Woodall
Court directly addressed concerns that by abandoning the Schoo test it was
enabling legislators “to draft around the Section 59 prohibition by avoiding express
reference to a specific person, entity or locale but articulating criteria for a statute’s
application that as a practical matter only a specific person, entity or locale can
satisfy, essentially reverting to the ways of the 1870s and 1880s.” Woodall, 607
S.W.3d at 573. According to Woodall,
[t]he answer to this objection is that Kentucky’s courts,
in that pre-1891 Constitution period, had only just begun
to apply the “exclusive, separate” privilege prohibition of
the Bill of Rights to evaluate class or partial legislation,
and to equate that section with equal protection. Over the
last 130 years, courts have had experience with the
analysis and have shown little hesitancy in engaging a
more rigorous analysis with respect to classification
legislation.
Id.
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Woodall endorses the development of a more rigorous analysis under
Section 59, to address legislation drafted to avoid the Section 59 prohibition but
nonetheless applying to only one specific individual, object, or locale. Thus, the
fact that the challenged legislation does not expressly name the Jefferson County
school district is not automatically dispositive of the constitutional question.
The interpretation and construction of a statute are concerned
primarily with legislative intent. Miller v. Bunch, 657 S.W.3d 890, 894-95 (Ky.
2022); Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky.
2011). “[O]ur first guiding principle in statutory construction is to ascertain and
effectuate legislative intent.” Martin v. Warrior Coal LLC, 617 S.W.3d 391, 394
(Ky. 2021).
The unmistakable intent of the legislature in this case was to
ameliorate problems specific to Jefferson County. The Senate President’s amicus
brief states that the purpose behind the legislation was to address concerns that the
Jefferson County Public School System (JCPS) was “failing too many of its
students, especially students of color and those living below the poverty level.”
The brief describes concerns expressed in the media and by the public that these
problems were attributable in part to micromanagement of JCPS by its Board. The
brief outlines a subsequent attempt by the Kentucky Board of Education to give
greater power to the Superintendent of JCPS, which culminated in a settlement
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agreement from which JCPS was ultimately released by the Commissioner in
2020. The gap in student achievement persisted, however. The brief states that
“[a]gainst this backdrop, it is hardly surprising that the 2022 General Assembly
enacted the significant management reforms in S.B. 1 which, like the proposed
state takeover, allow the superintendent to function as a chief executive officer,
with JCBE [the Jefferson County Board] functioning more like a board of
directors.”
By the Senate President’s own admission, the challenged provisions
were intended to address the unique problems of the Jefferson County school
district. This conclusion is supported by State Representative Ed Massey’s
statements in the debate over the final passage of S.B. 1:
There are three large components that are rolled into one
committee substitute that we discussed actually in
committee today. The first one is a request with regards
to Jefferson County which had done some things
differently – had gotten some approval to do some things
differently. They had the largest board in the state of
Kentucky. There was at times a power struggle that
existed between the board and the superintendent and
how the day-to-day operations would be able to run. So,
this language was brought to us and asked to be added
into this as a house committee sub to allow them to
continue to do what we believe is good work in Jefferson
County in trying to deal with that particular issue.
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Kentucky General Assembly Regular Session/Debate/House Chambers, Part 2 at
5:08 p.m., KET (Mar. 22, 2022) https://ket.org/legislature/archives/2022/regular/
house-chambers-part-2-201453.
In view of this clearly-stated legislative intent and the Woodall
Court’s approval of the decision in Pennybacker, we conclude that the challenged
provisions were intended to apply only to a specific locale, not a class, and
consequently are local or special legislation which is prohibited under Sections 59
and 60 of the Kentucky Constitution. The circuit court’s holding that the
provisions also violate the state’s equal protection clause is consequently moot and
will not be addressed here.
CONCLUSION
For the foregoing reasons, the circuit court’s order holding that the
challenged provisions of S.B. 1, now codified at KRS 160.370(2)(a)1. and 2.; KRS
160.370(2)(b)2. and 5.; and KRS 160.370(2)(c) violate the prohibition against
special and local legislation is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE
JEFFERSON COUNTY BOARD OF
Victor B. Maddox EDUCATION:
Deputy Attorney General
David Tachau
Matthew F. Kuhn Katherine Lacy Crosby
Solicitor General Amy D. Cubbage
Frankfort, Kentucky Louisville, Kentucky
ORAL ARGUMENT FOR BRIEF FOR APPELLEE JASON E.
APPELLANT: GLASS, COMMISSIONER OF
EDUCATION:
Victor B. Maddox
Deputy Attorney General Ashley Lant
Frankfort, Kentucky
Matthew F. Kuhn
Solicitor General ORAL ARGUMENT FOR
Frankfort, Kentucky APPELLEE JEFFERSON COUNTY
BOARD OF EDUCATION:
AMICUS BRIEF FILED FOR
SENATOR ROBERT STIVERS, David Tachau
IN HIS OFFICIAL CAPACITY Katherine Lacy Crosby
AS PRESIDENT OF THE SENATE: Amy D. Cubbage
Louisville, Kentucky
David Fleenor
Frankfort, Kentucky
Sheryl G. Snyder
Louisville, Kentucky
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