Complaint and Motion For Injunction

COMMONWEALTH OF KENTUCKY
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000001 of 000142

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
1
v.
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000002 of 000142

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.
2
But within hours of taking the oath of office as the Commonwealth of Kentucky’s 63rd
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000003 of 000142

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
3
ensure this, the Kentucky General Assembly required the political appointments of all 11
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000004 of 000142

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.
4
4. Plaintiffs request an expedited review pursuant to KRS 418.050 and CR 57. The
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000005 of 000142

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
5
educational leadership from the University of Louisville, a master's degree in teaching from
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000006 of 000142

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
6
Partnership. Her term is due to expire on April 14, 2022. She represents Supreme Court District
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000007 of 000142

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
7
Lady of Bellefonte Hospital. Her term is due to expire on April 14, 2022. She represents
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000008 of 000142

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.
8
FACTUAL BACKGROUND
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000009 of 000142

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.
9
27. In the 2016 UofL Case, Franklin Circuit Court Judge Philip Shepherd granted the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000010 of 000142

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.
10
33. The Executive Order relating to the Kentucky Board of Education “modified the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000011 of 000142

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.
11
38. As mandated by Kentucky law, the Board develops and adopts the regulations
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000012 of 000142

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
12
appointed board members in the middle of their statutory terms and less than a month before the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000013 of 000142

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,
13
equipment, facilities, and records from one (1) organizational unit or administrative body to
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000014 of 000142

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).
14
58. Executive Order 2019-002 does not include any charge for cause and none of the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000015 of 000142

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.”
1
The 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.
15
65. Executive Order 2019-002 suspends KRS 63.080 and KRS 156.029 because
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000016 of 000142

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.”
16
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000017 of 000142

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.
17
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000018 of 000142

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
18
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000019 of 000142

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[.]”
19
99. Executive Order 2019-002 violates KRS 12.028(2) because it is not for the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000020 of 000142

“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
20
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000021 of 000142

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:
21
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000022 of 000142

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
22
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000023 of 000142
EXHIBIT A
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000024 of 000142

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000025 of 000142
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000026 of 000142
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000027 of 000142
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000028 of 000142
EXHIBIT B
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000029 of 000142

Filed 16-CI-00738 07/05/2016 NOT ORIGINAL
Amy Feldman, Franklin Circuit Clerk DOCUMENT
12/04/2019 04:20:48 PM
[email protected]
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000030 of 000142

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
Presiding Judge: HON. PHILLIP J. SHEPHERD (648260)

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
COM : 000001 of 000024
Filed 16-CI-00738 07/05/2016 Amy Feldman, Franklin Circuit Clerk

12/04/2019 04:20:48 PM
[email protected]
VERIFIED COMPLAINT FOR DECLARATION
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000031 of 000142

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
COM : 000002 of 000024
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
-2-
12/04/2019 04:20:48 PM
[email protected]
reorganizations are being used to establish and/or increase gubernatorial control and authority,
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000032 of 000142

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.

COM : 000003 of 000024
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
-3-
12/04/2019 04:20:48 PM
[email protected]
actual and justiciable controversy regarding violations of the Kentucky Constitution and state
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000033 of 000142

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
COM : 000004 of 000024
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).
-4-
12/04/2019 04:20:48 PM
[email protected]
Order 2016-391) under the guise of a “reorganization” are null, void, unconstitutional, and of no
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000034 of 000142

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
COM : 000005 of 000024
state agencies for injunctive relief. See KY. CONST. § 91; KRS 15.020.
-5-
12/04/2019 04:20:48 PM
[email protected]
10. The Defendant, Governor of Kentucky Matthew Griswold Bevin is a duly elected
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000035 of 000142

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
COM : 000006 of 000024
Frankfort, Franklin County, Kentucky.
-6-
12/04/2019 04:20:48 PM
[email protected]
15. Pursuant to KRS 418.040, et seq., this Court may properly exercise in personam
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000036 of 000142

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).

COM : 000007 of 000024
2
See University of Louisville A Brief History webpage (http://louisville.edu/about/history) (last visited July 4,
2016).
-7-
12/04/2019 04:20:48 PM
[email protected]
18. In 2015, the University enrolled 22,367 total students in both undergraduate and
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000037 of 000142

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
COM : 000008 of 000024
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).
-8-
12/04/2019 04:20:48 PM
[email protected]
23. The University of Louisville was initially accredited by the Southern Association
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000038 of 000142

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. COM : 000009 of 000024
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).
-9-
12/04/2019 04:20:48 PM
[email protected]
27. The Kentucky Revised Statutes related to the UofL Board first provide for
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000039 of 000142

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
COM : 000010 of 000024
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.
-10-
12/04/2019 04:20:48 PM
[email protected]
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000040 of 000142

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.
COM : 000011 of 000024
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:
-11-
12/04/2019 04:20:48 PM
[email protected]
The University of Louisville Board of Trustees as established by KRS 164.821 is
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000041 of 000142

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
COM : 000012 of 000024
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.
-12-
12/04/2019 04:20:48 PM
[email protected]
39. The UofL Reorganization Order therefore suspends, ignores, and effectively
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000042 of 000142

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. COM : 000013 of 000024
-13-
12/04/2019 04:20:48 PM
[email protected]
C. The Illegal Formation of a Temporary Board to Oversee UofL –
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000043 of 000142

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
COM : 000014 of 000024
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.”)
-14-
12/04/2019 04:20:48 PM
[email protected]
53. The UofL Reorganization Order, the UofL Interim Board Order, and the UofL
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000044 of 000142

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
COM : 000015 of 000024
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.”
-15-
12/04/2019 04:20:48 PM
[email protected]
60. KRS 63.080(2) establishes that members of the University of Louisville Board of
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000045 of 000142

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.
COM : 000016 of 000024
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.
-16-
12/04/2019 04:20:48 PM
[email protected]
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000046 of 000142

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.”

COM : 000017 of 000024
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.
-17-
12/04/2019 04:20:48 PM
[email protected]
77. KRS 164.821 establishes that the UofL Board shall have seventeen (17) members
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000047 of 000142

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.

COM : 000018 of 000024
Count V
-18-
12/04/2019 04:20:48 PM
[email protected]
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000048 of 000142

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
COM : 000019 of 000024
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,
-19-
12/04/2019 04:20:48 PM
[email protected]
temporarily effect a change in the state government organizational structure as described in
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000049 of 000142

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.
COM : 000020 of 000024
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.
-20-
12/04/2019 04:20:48 PM
[email protected]
101. By issuing Executive Orders 2016-338, 2016-339, and 2016-391, the Governor
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000050 of 000142

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
COM : 000021 of 000024
KRS 63.080, 164.821, 164.005, and KRS Chapter 273 in enacting Executive Orders 2016-338,
2016-339, and 2016-391;
-21-
12/04/2019 04:20:48 PM
[email protected]
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000051 of 000142

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.

COM : 000022 of 000024
WHEREFORE, Plaintiffs demand judgment against Defendants as set forth in their
Prayer for Relief below.
-22-
12/04/2019 04:20:48 PM
[email protected]
PRAYER FOR RELIEF
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000052 of 000142

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
COM : 000023 of 000024
By: /s/ Mitchel T. Denham____________

Mitchel T Denham
Assistant Deputy Attorney General
La Tasha Buckner, Executive Director
-23-
12/04/2019 04:20:48 PM
[email protected]
Office of Civil and Environmental Law
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000053 of 000142

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

COM : 000024 of 000024
-24-
EXHIBIT C
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000054 of 000142

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000055 of 000142

DIVISION I FRANKLIN C-IrCUIT COURT
AMY FELDMAN, CLERK
CIVIL ACTION NO. 16-CI-738
ANDY BESHEAR, in his official capacity as

Attorney General of the Commonwealth of Kentucky, PLAINTIFF
V. FINAL JUDGMENT GRANTING

DECLARATORY AND INJUNCTIVE RELIEF
MATTHEW G. BEVIN, in his official capacity as

Governor of the Commonwealth of Kentucky, 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.
Page 1 of 17
KRS 12.028, circumvent the statutory requirement of KRS 63.080 that Board members "shall
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000056 of 000142

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

Page 2 of 17
Governors, who have not been shy about asserting executive powers, have dealt with these
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000057 of 000142

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.
Page 3 of 17
transparency and professionalism"; it alleges the Board members "have become operationally
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000058 of 000142

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."
Page 4 of 17
This action by the Governor violates KRS 164.821, which provides "Mlle government of the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000059 of 000142

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).
Page 5 of 17
In response to the Attorney General's motion for injunctive relief, the Governor has
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000060 of 000142

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.
Page 6 of 17
office, after being afforded a hearing with counsel before the Council on Postsecondary
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000061 of 000142

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
Page 7 of 17
that the Governor is not required to appoint nominees from the initial list submitted to him by
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000062 of 000142

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
Page 8 of 17
the Governor to make appointments from a list submitted by a nominating group, the Governor
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000063 of 000142

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.
Page 9 of 17
Here, the legislature, as a part of sweeping higher education reforms, placed limits on the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000064 of 000142

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.
Page 10 of 17
ch. 41, Section 1.13 It is clear that public universities were removed from the organizational
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000065 of 000142

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 ofuniversities from the organizational structure ofthe 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).
Page 11 of 17
institutions of a different kind and class than operational units of the executive branch of
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000066 of 000142

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.
Page 12 of 17
education from the direct influence of partisan politics. The Governor's assertion of the right
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000067 of 000142

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.
Page 13 of 17
the University as required under KRS 164.821. Any non-compliance with the statutory
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000068 of 000142

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
Page 14 of 17
Finally, the Attorney General has also raised significant questions regarding the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000069 of 000142

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.
Page 15 of 17
1. The Governor's Executive Orders, ##2016-338, 2016-339, 2016-391, and 2016-512
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000070 of 000142

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.
Page 16 of 17
Accordingly, even if public universities are included within the scope of the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000071 of 000142

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.
0
PHILLI J. Al ia(
DISTRIBUTION:
Attorney General Andy Beshear

Hon. Mitchel T. Denham
Hon. La Tasha Buckner
Hon. S. Travis Mayo
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
Page 17 of 17
EXHIBIT D
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000072 of 000142

12/04/2019 04:28:21 PM
[email protected]
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000073 of 000142

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
Presiding Judge: HON. THOMAS DAWSON WINGATE (648243)

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
COM : 000001 of 000032
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.
1
12/04/2019 04:28:21 PM
[email protected]
INTRODUCTION
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000074 of 000142

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
COM : 000002 of 000032
1
See Exhibit A (List of affected boards and the executive orders that reorganized them).
2
12/04/2019 04:28:21 PM
[email protected]
requirements, and re-wrote statutory provisions in a manner to provide the Governor with more
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000075 of 000142

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.

COM : 000003 of 000032
3
12/04/2019 04:28:21 PM
[email protected]
NATURE OF THE ACTION
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000076 of 000142

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,
COM : 000004 of 000032
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
4
12/04/2019 04:28:21 PM
[email protected]
continuous and repeated use of his claimed “absolute authority” to reorganize state administrative
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000077 of 000142

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
COM : 000005 of 000032
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).
5
12/04/2019 04:28:21 PM
[email protected]
PARTIES
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000078 of 000142

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.
COM : 000006 of 000032
6
12/04/2019 04:28:21 PM
[email protected]
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000079 of 000142

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
COM : 000007 of 000032
Governor seven (7) days to rescind his action.
7
12/04/2019 04:28:21 PM
[email protected]
17. On June 14, 2017, the Governor indicated that he intended to amend the Executive
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000080 of 000142

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
COM : 000008 of 000032
161.028(1).
8
12/04/2019 04:28:21 PM
[email protected]
26. KRS 161.028(1)(n) also provides the Education Professional Standards Board with
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000081 of 000142

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
COM : 000009 of 000032
(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
9
12/04/2019 04:28:21 PM
[email protected]
of a private postsecondary institution; one (1) faculty member of a public postsecondary
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000082 of 000142

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
COM : 000010 of 000032
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
10
12/04/2019 04:28:21 PM
[email protected]
3. After issuing a written admonishment, upon written request for a
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000083 of 000142

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
COM : 000011 of 000032
mandated structure and requirements for members, as well as the statutory appeal process for final
Board orders.
11
12/04/2019 04:28:21 PM
[email protected]
State Advisory Council for Gifted and Talented Education
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000084 of 000142

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.

COM : 000012 of 000032
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.
12
12/04/2019 04:28:21 PM
[email protected]
55. The Executive Order ignores, suspends, and rewrites KRS 158.648(1)(a), reducing
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000085 of 000142

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)
COM : 000013 of 000032
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,
13
12/04/2019 04:28:21 PM
[email protected]
or mathematics teacher; one (1) arts and humanities teacher; one (1) school counselor or
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000086 of 000142

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
COM : 000014 of 000032
and cease to exist” in violation of the terms mandated in KRS 158.794(2). (EO 2017-364, ¶
XXXII).
14
12/04/2019 04:28:21 PM
[email protected]
65. In violation of both the explicit provisions and intent of KRS 158.794(2), the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000087 of 000142

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
COM : 000015 of 000032
the criteria appointees must satisfy. (EO 2017-364, ¶ XXXIV).
15
12/04/2019 04:28:21 PM
[email protected]
72. Specifically, the Executive Order substitutes the judgment of the Governor over
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000088 of 000142

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
COM : 000016 of 000032
Accountability Council, causing the statutory terms of all members serving on the Council prior
16
12/04/2019 04:28:21 PM
[email protected]
to the date of the order to “cease to exist” in violation of the terms mandated in KRS 158.6452(2).
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000089 of 000142

(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
COM : 000017 of 000032
fourteen (14) of his appointees to the School Curriculum, Assessment and Accountability Council
17
12/04/2019 04:28:21 PM
[email protected]
from recommendations by organizations representing certain groups, including parents, teachers,
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000090 of 000142

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”
COM : 000018 of 000032
consist of eleven (11) members appointed by the Governor and confirmed by the Senate and House
of Representatives of the General Assembly. (Emphasis added).
18
12/04/2019 04:28:21 PM
[email protected]
92. Of these eleven (11) members, seven (7) members “shall” represent each of the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000091 of 000142

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
COM : 000019 of 000032
requirements for all appointed, voting members. (EO 2017-364, ¶ XIV).
19
12/04/2019 04:28:21 PM
[email protected]
101. Specifically, under the Executive Order, one (1) member of the board must be a
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000092 of 000142

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
COM : 000020 of 000032
university.
20
12/04/2019 04:28:21 PM
[email protected]
Council on Postsecondary Education
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000093 of 000142

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.

COM : 000021 of 000032
21
12/04/2019 04:28:21 PM
[email protected]
111. Executive Order 2017-3634 removes these limitations and requirements from
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000094 of 000142

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).

COM : 000022 of 000032
22
12/04/2019 04:28:21 PM
[email protected]
118. In sum, the Executive Order suspends, ignores, and rewrites KRS 164.011, which
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000095 of 000142

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
COM : 000023 of 000032
the House of Representatives; and the commissioner of education. 2017 Ky. Laws Ch. 156 (SB 1,
sec. 3) (emphasis added).
23
12/04/2019 04:28:21 PM
[email protected]
126. In Executive Order 2017-364, Governor Bevin ignores, suspends, and rewrites
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000096 of 000142

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
COM : 000024 of 000032
previously set forth in this Complaint as if fully set forth herein.
24
12/04/2019 04:28:21 PM
[email protected]
133. Kentucky Constitution § 15, entitled “Laws to be suspended only by General
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000097 of 000142

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.

COM : 000025 of 000032
141. Again, under Kentucky Constitution § 15, “No power to suspend laws shall be
exercised unless by the General Assembly or its authority.”
25
12/04/2019 04:28:21 PM
[email protected]
142. As set forth above, in issuing Executive Order 2017-364, Governor Bevin, citing
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000098 of 000142

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.

COM : 000026 of 000032
26
12/04/2019 04:28:21 PM
[email protected]
Count IV
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000099 of 000142

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,
COM : 000027 of 000032
and improved administration.”
27
12/04/2019 04:28:21 PM
[email protected]
158. In Executive Order 2017-364, as described above, Governor Bevin has altered a
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000100 of 000142

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.

COM : 000028 of 000032
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.
28
12/04/2019 04:28:21 PM
[email protected]
167. Executive Order 2017-364 thus violates the statutes listed in paragraph 167.
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000101 of 000142

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
COM : 000029 of 000032
175. An actual and justiciable controversy exists among the parties as to whether:
29
12/04/2019 04:28:21 PM
[email protected]
A. Kentucky Revised Statute 12.028 is constitutional as used by the Governor
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000102 of 000142

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
COM : 000030 of 000032
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
30
12/04/2019 04:28:21 PM
[email protected]
Defendants, and all their agents, attorneys, and any other persons in active concert or participation
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000103 of 000142

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;

COM : 000031 of 000032
structuring the education boards affected by his order; and
31
12/04/2019 04:28:21 PM
[email protected]
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000104 of 000142

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
700 Capitol Avenue
Capitol Building, Suite 118
COM : 000032 of 000032

(502) 696-5300
[email protected]
Counsel for Commonwealth of Kentucky
32
EXHIBIT E
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000105 of 000142

Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673 (2019)
367 Ed. Law Rep. 1176
575 S.W.3d 673 West Headnotes (13)
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000106 of 000142

Supreme Court of Kentucky.
COMMONWEALTH of Kentucky EX REL. [1] Education

Andy BESHEAR, Attorney General, Appellant State Boards and Officers
v. States
Matthew G. BEVIN, in His Official Capacity as Governor
Governor of Kentucky, Hal Heiner, in His Official Statute which listed governing statutes for
Capacity as Secretary of the Kentucky Education organizational units and administrative bodies,
and Workforce Development Cabinet, Appellees including education boards, did not exempt
state’s education boards from ambit of
2017-SC-000647-TG statute authorizing governor, between General
| Assembly sessions, temporarily to effect change
JUNE 13, 2019 in organizational structure of any organizational
unit or administrative body; nothing indicated
Synopsis
that list of governing statutes was exhaustive. Ky.
Background: Attorney General brought action against
Rev. Stat. Ann. §§ 12.028, 12.295.
Governor, Secretary of Education, and Workforce
Development Cabinet to challenge validity of executive order
temporarily reorganizing education boards between General
[2] Education
Assembly sessions. The Circuit Court, Franklin County, No.
Appointment and tenure of officers
17-CI-00673, Thomas D. Wingate, J., generally upheld order.
Attorney General appealed, and case was transferred. Public Employment
Members and officers
States
Governor
Holdings: The Supreme Court, Minton, C.J., held that:
Statutes establishing service for a set term
[1] temporary reorganization of education departments was on various education boards did not preclude
statutorily authorized; governor from reorganizing boards pursuant to
statute authorizing governor, between General
[2] statute permitting the reorganizations did not violate Assembly sessions, temporarily to effect change
constitutional prohibition against suspension of laws unless in organizational structure of any organizational
by the General Assembly or its authority; unit or administrative body, including creation,
alteration, or abolition of any organizational unit
[3] statute satisfied constitutional requirement to provide for or administrative body; set term of years was
an efficient system of common schools throughout state; and ceiling, not the floor, and members of boards
abolished by governor could be removed from
[4] Governor's exercise of legislative authority did not violate positions. Ky. Rev. Stat. Ann. §§ 12.028, 63.080.
separation of powers or nondelegation doctrines.
[3] Education
Affirmed. Validity of statutes
Temporary reorganization mechanism under
Vanmeter, J., concurred in result and filed opinion joined by
statute authorizing governor, between General
Buckingham, J.
Assembly sessions, temporarily to effect
change in organizational structure of any
organizational unit or administrative body
© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

367 Ed. Law Rep. 1176
and Governor's executive order temporarily action, is not an exercise of legislative power
reorganizing education boards between sessions by the chief executive, and does not violate
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000107 of 000142

did not violate constitutional prohibition against separation of powers or nondelegation doctrine.
suspension of laws unless by the General Ky. Const. § 27.
Assembly or its authority; the statutory authority
satisfied constitutional provision. Ky. Const. §
15; Ky. Rev. Stat. Ann. § 12.028. [8] Constitutional Law
Separation of Powers
Constitutional Law
[4] Education Nature and scope in general
School system, and establishment of
The “legislative power” under separation of
schools in general
powers doctrine is the authority under the
Statute authorizing governor, between General constitution to make the laws, and to alter
Assembly sessions, temporarily to effect and repeal them; the difference between the
change in organizational structure of any departments undoubtedly is that the legislature
organizational unit or administrative body makes, the executive executes, and the judiciary
satisfied constitutional requirement to provide construes, the law. Ky. Const. § 27.
for an efficient system of common schools
throughout state; statute allowed governor to
address problems with the Commonwealth’s
[9] Constitutional Law
system of common schools, specifically,
Encroachment on legislature
problems with organization of its education
States
boards, by effectuating changes to those boards.
Governor
Ky. Const. § 183; Ky. Rev. Stat. Ann. § 12.028.
Governor's exercise of legislative authority
pursuant to statutorily authorized temporary
[5] Constitutional Law reorganization mechanism and executive order
Encroachment in general temporarily reorganizing education boards
between sessions of General Assembly did not
One branch of Kentucky’s tripartite government
violate separation of powers or nondelegation
may not encroach upon the inherent powers
doctrines; General Assembly members reviewed
granted to any other branch. Ky. Const. § 27.
reorganization plans, temporary reorganization
only survived until next regular session, and
General Assembly continued to maintain control.
[6] Constitutional Law Ky. Const. § 27; Ky. Rev. Stat. Ann. § 12.028.
Delegation in general
The “nondelegation doctrine” recognizes that the
Constitution vests the powers of government in [10] Constitutional Law
three separate branches and, under the doctrine of Delegation of Powers
separation of powers, each branch must exercise
Constitutional Law
its own power rather than delegating it to another
To Executive, in General
branch. Ky. Const. § 27.
General Assembly may validly vest legislative
authority in another branch if the law delegating
that authority provides safeguards, procedural
[7] Constitutional Law
and otherwise, which prevent an abuse of
Encroachment on legislature
discretion by the agency.
The transfer of an existing, legislatively-
created function from one executive agency or
department to another is essentially an executive

367 Ed. Law Rep. 1176
[11] Constitutional Law COUNSEL FOR APPELLEE MATTHEW G. BEVIN IN HIS

Purposes of separation of powers OFFICIAL CAPACITY AS GOVERNOR OF KENTUCKY:
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000108 of 000142

The doctrine of the separation of powers was Mark Stephen Pitt, Stephen Chad Meredith, Matthew Kuhn,
adopted to preclude the exercise of arbitrary Office of the Governor.
power; the purpose was to save the people from
COUNSEL FOR APPELLEE HAL HEINER, IN
autocracy. Ky. Const. § 27.
HIS OFFICIAL CAPACITY AS SECRETARY OF
THE KENTUCKY EDUCATION AND WORKFORCE
DEVELOPMENT CABINET: Mark Stephen Pitt, Stephen
[12] Constitutional Law Chad Meredith, Matthew Kuhn, Office of the Governor,
Purposes of separation of powers Bridget H. Papalia, Office of General Counsel.
The purpose of the nondelegation doctrine
should no longer be either to prevent Opinion
delegation or to require statutory standards; the
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
purpose should be the much deeper one of
protecting against unnecessary and uncontrolled When it enacted Kentucky Revised Statute (“KRS”) 12.028,
discretionary power. Ky. Const. § 27. the General Assembly empowered the Governor “between
sessions of the General Assembly, temporarily [to] effect
a change in the state government organizational structure”
[13] Constitutional Law of “any organizational unit or administrative body” in the
Encroachment on Judiciary Commonwealth. 1 And the Governor exercised that authority
Education when he issued Executive Order (“EO”) 2017-364, which
Proceedings for organization made several changes to various state education boards.
Governor’s executive order reorganizing The Attorney General sued in circuit court to challenge the
Education Professional Standards Board validity of the executive order, and that court upheld it. On
between General Assembly sessions was not discretionary review, we find no statutory or constitutional
unconstitutional infringement on the judiciary’s infirmity with the Governor’s use of the executive order to
power because temporary reorganization of affect a temporary government reorganization on the facts
Board did not impute the judicial power in any before us, so we affirm the circuit court’s judgment.
way. Ky. Const. § 27; Ky. Rev. Stat. Ann. §
12.028.
I. BACKGROUND.
Central to this dispute is KRS 12.028, Subsection 1 of

which gives the Governor the ability to “propose to the
*675 ON TRANSFER FROM COURT OF APPEALS, General Assembly, for [the General Assembly’s] approval,
CASE NO. 2017-CA-001916, FRANKLIN CIRCUIT changes in the state government organizational structure
COURT NO. 17-CI-00673, HONORABLE THOMAS D. which may include *676 the creation, alteration or abolition
WINGATE
of any organizational unit 2 or administrative body 3 and
Attorneys and Law Firms the transfer of functions, personnel, funds, equipment,
facilities, and records from one (1) organizational unit
COUNSEL FOR APPELLANT: Andy Beshear, Attorney or administrative body to another.” And Subsection 2
General of Kentucky, La Tasha Arnae Buckner, Assistant states in relevant part: “Recognizing that changes in the
Deputy Attorney General, Steven Travis Mayo, Executive state government organizational structure may need to be
Director, Office of Civil and Environmental Law, Matthew made as rapidly as possible to achieve greater economy,
James, Laura Tipton, Taylor Allen Payne, Assistant Attorneys efficiency, and improved administration as the needs of
General. government dictate, the Governor ... may, between sessions
of the General Assembly, temporarily effect a change in

367 Ed. Law Rep. 1176
the state government organizational structure as described in and Talented Education, reducing
subsection (1)[.]” Subsection (5) emphasizes the temporary membership numbers from 19
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000109 of 000142

nature of such a reorganization: “A temporary reorganization to 11, and altering membership
effected under subsection[ ] (2) ... shall be terminated ninety criteria; and abolished and re-
(90) days after sine die adjournment of the next regular created the State Advisory Panel for
session of the General Assembly unless otherwise specified Exceptional Children as the State
by the General Assembly.” Advisory Council for Exceptional
Children with 21 members, rather
Exercising this legislatively-recognized power under KRS than 20 previous members, and
12.028, the Governor issued EO 2017-364, the effect of which additional[ly] represents individuals
the circuit court aptly summarized: with disabilities. The Order finally
abolished and re-created the Education
Professional Standards Board with
The Order creates the Charter 13 members instead of the previous
Schools Advisory Council, to 15 members, and provided new
advise the Kentucky Department of membership criteria, and altered the
Education on charter schools, and appeal process for decisions – appeals
allow[ ] overlapping membership with now go to the Kentucky Board of
other education boards; altered the Education for review before appeal
Standards and Assessments Process to the Circuit Court rather than
Review Committee’s membership to automatically going to the Circuit
allow membership overlap with other Court for review of the Board’s final
boards; modified the Council on decision[.]
Postsecondary Education to guarantee
that a citizen member is a non-voting,
non-member advisor to the Kentucky *677 The circuit court upheld the validity of EO 2017-364
Board of Education; and changed except for the portion restructuring the appeal process within
the Kentucky Board of Education the Education Professional Standards Board, which the circuit
to include four non-voting, non- court ruled unconstitutional. And the Governor has not
member advisors who are on the appealed that ruling. The Attorney General appealed the
Council on Postsecondary Education, remainder of the trial court’s ruling and sought immediate
the Education Professional Standards transfer of the case directly to this Court, which we granted.
Board, the School Curriculum
Assessment and Accountability
Council, and the Charter Schools
II. ANALYSIS.
Advisory Council, or an individual
with experience in education. KRS 12.028 authorizes the Governor to effectuate for
The Order restructured the the interim between legislative sessions a temporary
School Curriculum[ ] Assessment reorganization of the state’s “organizational units and
and Accountability Council with administrative bodies.” The Governor executed this
15 members, rather than the authorization by promulgating EO 2017–364, temporarily
previous 17 members, and reorganizing various state education boards. The Attorney
altered membership requirements; General makes several constitutional and statutory arguments
reorganized the Reading, Diagnostic, challenging the validity of the temporary reorganization
and Intervention Grant Steering mechanism itself and some of its inner workings. We address
Committee with one less member at those challenges below.
15, and modified the membership
requirements; reorganized the State
Advisory Council for Gifted A. Statutory Arguments

367 Ed. Law Rep. 1176
[1] Because this Court respects the principle that under KRS 12.028. Although the Attorney General makes
4
“constitutional issues should be avoided if possible[,]” we various statutory-construction arguments to persuade us of
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000110 of 000142

address the Attorney General’s statutory arguments first. the General Assembly’s intent to exclude the Kentucky
Education Boards from the ambit of KRS 12.028, these
The Attorney General argues that the General Assembly arguments contradict the plain and explicit text of that statute.
exempted the state’s education boards from the ambit of We need not look beyond the plain and unambiguous text
KRS 12.028. According to the Attorney General, KRS 12.295 of the General Assembly in our statutory interpretation. 6
specifically outlines the chapters in the Kentucky Revised And the plain text of KRS 12.028, explicitly stating that
Statutes that govern the various state education boards to the reorganization power applies to “organizational units and
which the Governor made changes and that no other statute administrative bodies,” coupled with the plain text of KRS
not referred to in KRS 12.295 applies to the governance of the 12.295, which specifically terms all the education boards
boards. This specific outlining, the Attorney General argues, at issue today as “organizational units and administrative
further indicates the General Assembly’s intent to exempt bodies,” confirms that all of the education boards come within
them from the domain of KRS 12.028. the broad sweep of KRS 12.028.
KRS 12.028 plainly applies to “organizational units and In sum, we find the various education boards at issue fall
administrative bodies[.]” KRS 12.295 states, “The following within the ambit of the Governor’s temporary-reorganization-
organizational units and administrative bodies shall be outside-of-session power stemming from KRS 12.028. We
governed by their respective substantive chapters as set out cannot accept the Attorney General’s suggested statutory
below[,]” followed by a list of the education boards at issue interpretation in the face of such clear text.
and their respective governing statutes. KRS 12.295 terms the
education boards as “organizational units and administrative [2] The Attorney General further argues that the General
bodies[,]” the exact entities that KRS 12.028 encompasses Assembly has limited the Governor’s authority with respect
as being within the ambit of the Governor’s reorganization to the boards to one of appointment—not removal—authority.
power. The Attorney General cites the various statutes governing the
various boards at issue providing for mandatory terms for
Contrary to the Attorney General’s interpretation of KRS its sitting members. The Attorney General also cites to KRS
12.295, we find no indication from that statute that the 63.080, which says that individual members on some of the
chapters listed in conjunction with the specific board they boards at issue cannot be removed from their positions by
govern represents an exhaustive list of governing statutes the Governor without cause. If the Governor can reorganize
excluding application of every other statute not listed. KRS these boards at the Governor’s whim, these statutes providing
12.295 reads more as a table of contents or index, giving for mandatory terms are meaningless, the Attorney General
directions to the reader on where to find the main governing argues.
provisions of certain boards rather than instruction from the
General Assembly that no statute outside of the ones listed in As we previously stated, this Court cannot ignore the plain
KRS 12.295 has any application to the listed boards. text of KRS 12.028 in favor of the Attorney General’s
statutory interpretation. KRS 12.028(2) explicitly allows
Not only does the plain text support the Governor’s position: the Governor to “temporarily effect a change in the
If the General Assembly truly intended for the organizational state government organizational structure as described in
units and administrative bodies listed in KRS 12.295 to be subsection (1) of this section[.]” The change described
exempt from reorganization under KRS 12.028, it would have in KRS 12.028(1) “include[s] the creation, alteration or
explicitly said so—KRS 12.028 like other statutes, explicitly abolition of any organizational unit or administrative body
exempts certain organizational units and administrative and the transfer of functions, personnel, funds, equipment,
bodies from reorganization. 5 facilities, and records from one (1) organizational unit or
administrative body to another.” If the Governor’s power
*678 The Attorney General also argues that the governing includes the “alteration or abolition of any organizational unit
Chapters themselves signal the intent of the General or administrative body,” that necessarily means that members
Assembly to remove the boards that the Governor of the specific board that the Governor has abolished may be
reorganized from the Governor’s reorganization power removed from their positions.

367 Ed. Law Rep. 1176
of seventeen (17) members,” yet EO 2017–364 reduces the

*679 Moreover, simply because statutes exist to define a number of members to fifteen. This, the Attorney General
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000111 of 000142

set term of years for an individual to serve as a member of argues, is an unconstitutional suspension and rewriting by the
a board does not mean that the appointed member may not Governor of duly enacted law.
be removed from service. The set term of years is the ceiling,
not the floor. Indeed, KRS 63.080 itself allows the Governor But the Attorney General’s argument fails to persuade us
removal power. Although that statute limits that removal because even if we were to agree that the changes made by
power in some instances “for cause,” the Governor is still EO 2017–364 constitute a suspension of law, the Attorney
able to remove members of the boards at issue here. And the General ignores the latter half of Section 15: “No power
Attorney General has not argued that the Governor’s removal to suspend laws shall be exercised unless by the General
of some of the boards' members was without cause; rather, the Assembly or its authority.” 7 In Lovelace v. Commonwealth,
Attorney General argues that the statutes establishing service this Court recognized that when the General Assembly
for a set term by various members of the various boards expressly grants to another branch the power to suspend a
at issue evidences an intention by the General Assembly to law, that branch constitutes the General Assembly’s authority
disconnect these boards from the ambit of KRS 12.028. But, for purposes of Section 15 and that branch’s execution of a
as stated earlier, that argument disregards the plain text of
suspension of the laws does not violate Section 15. 8
KRS 12.028.
*680 At issue in Lovelace was the constitutionality of a

To conclude, the plain text of KRS 12.028 gives the Governor
statute allowing the judiciary to probate the sentence of a
the statutory power to do what he did. Although the Attorney
General offers several statutory-construction arguments to convicted criminal in certain situations. 9 In upholding the
support his assertion that the General Assembly meant to constitutionality of that statute, the Court said this:
exclude the state education boards from the Governor’s
We need not here inquire into the extent to which the power
reorganization power under KRS 12.028, the plain text of
to suspend the rendition and entry of a judgment inheres
KRS 12.028 says otherwise.
in the court as a judicial function or how far other statutes
should be construed as requiring the rendition of judgment
B. Constitutional Arguments in a reasonable time after the verdict. Whatever the extent
The Attorney General makes three constitutional arguments. of those directions and limitations may be, the power in
He asserts that the Governor’s power to affect a temporary the legislature to authorize the courts to suspend those laws
reorganization outside of legislative session to be a violation is in the logically implied affirmation contained in Section
of: 1) the suspension provision of Section 15 of the Kentucky 15 of the Constitution of Kentucky, declaring “No power
Constitution; 2) the education provision of Section 183 to suspend laws shall be exercised, unless by the general
of the Kentucky Constitution; and 3) the separation of assembly or its authority.” By this act of 1936, the General
powers doctrine generally and the nondelegation doctrine Assembly has exercised that constitutional power and has
specifically. authorized the courts to suspend the implications of the
law which require entry and pronouncement of judgment
without unreasonable delay. 10
1. The temporary reorganization mechanism does not
violate Section 15 of the Kentucky Constitution. By enacting KRS 12.028, the General Assembly granted the
[3] The Attorney General first argues that the temporary Governor the authority in the interim between legislative
reorganization mechanism of KRS 12.028, as used in EO session to reorganize temporarily state organizational units
2017–364, violates Section 15 of the Kentucky Constitution. and administrative agencies. KRS 12.028 is the General
Section 15 states, “No power to suspend laws shall be Assembly’s authority for purposes of Section 15. This is
exercised unless by the General Assembly or its authority.” the difference between the present case and the cases the
The Attorney General posits that EO 2017–364 “suspend[ed] Attorney General relies on to support his position. In Baker
laws” by effecting changes to the various Kentucky
v. Fletcher, 11 Fletcher v. Commonwealth, 12 and Beshear v.
education boards in conflict with the boards' governing
statutes. For example, KRS 161.028(2)(a) provides that the Haydon Bridge, 13 the General Assembly had not granted
Education Professional Standards Board “shall be composed the Governor the authority to suspend the law. Here, the

367 Ed. Law Rep. 1176
temporary reorganization mechanism established by KRS General Assembly’s will. Nor do Sections 185 and 186 of the
12.028, in conjunction with the Governor’s exercise of that Kentucky Constitution evidence such a categorical rule.
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000112 of 000142

temporary reorganization mechanism by his issuance of EO
2017-364, not only does not violate Section 15 but directly The General Assembly enacted KRS 12.028, a law that the
conforms to it because the General Assembly has explicitly legislative body apparently believes promotes Kentucky’s
designated the Governor under its authority to suspend the system of common schools by granting interim power to the
law. Governor to effectuate temporary reorganizations. If KRS
12.028 and EO 2017-364 pass constitutional scrutiny, which
Simply put, the temporary reorganization mechanism laid they do, then the judiciary cannot gainsay that policy decision.
out by KRS 12.028 and executed by EO 2017–364 does not
violate Section 15 of the Kentucky Constitution because the
Governor possesses the General Assembly’s authority to do 3. The temporary reorganization mechanism does
so under that constitutional provision by virtue of the General not violate the separation of powers or nondelegation
Assembly having so stated. doctrines.
[5] [6] Finally, the Attorney General argues that the
temporary reorganization mechanism violates the separation
2. The temporary reorganization mechanism does not of powers doctrine. “It is well settled law in the state
violate Section 183 of the Kentucky Constitution. of Kentucky that one branch of Kentucky’s tripartite
[4] Next, the Attorney General asserts that the temporary government may not encroach upon the inherent powers
reorganization mechanism violates Section 183 of the granted to any other branch.” 17 The Attorney General
Kentucky Constitution. Section 183 states: “The General adds that the temporary reorganization mechanism violates
Assembly shall, by appropriate legislation, provide for an the nondelegation doctrine, a principle deriving from the
efficient system of common schools throughout the State.” separation of powers doctrine. “The nondelegation doctrine
We fail to see how KRS 12.028 is anything but a statute fully recognizes that the Constitution vests the powers of
within the scope of Section 183. government in three separate branches and, under the doctrine
of separation of powers, each branch must exercise its own
KRS 12.028 is a statute that “provides for an efficient system
power rather than delegating it to another branch.” 18 The
of common schools throughout the State” by allowing the
Attorney General argues that only the General Assembly—
Governor temporarily to reorganize the state’s education
the legislative department—has the power to reorganize the
boards “to achieve greater economy, efficiency, and improved
Commonwealth’s education boards and that the delegation
administration” of the education system. 14 This power stems of this power to the Governor—the executive department—
from the recognition that “changes in the state government violates the principle of the separation of powers.
organizational structure may need to be made as rapidly as
possible,” 15 i.e., cannot delay until the *681 legislature [7] Our precedent ostensibly disposes of this issue. As we
convenes. As with the relationship of KRS 12.028 to Section stated in Brown v. Barkley: “[W]e are satisfied that the
15, KRS 12.028 not only does not violate Section 183, it transfer of an existing, legislatively-created function from one
conforms to it. executive agency or department to another is essentially an
executive action ... and is not an exercise of legislative power
In sum, KRS 12.028 allows the Governor to address what the by the chief executive[.]” 19 And we reaffirmed this principle
Governor perceives to be problems with the Commonwealth’s in Legislative Research Comm'n ex rel. Prather v. Brown:
“system of common schools[,]” specifically, problems with “[O]nce the General Assembly has made a determination
organization of its education boards, by effectuating changes that the power to reorganize state government in the interim
to those boards. Contrary to the Attorney General’s argument between legislative sessions does exist, and determines that
on this point, our decision in Rose v. Council for Better that power is in the hands of the Governor, such interim
Educ., Inc. 16 does not stand for a categorical rule banning all action is purely an executive function.” 20 So Legislative
action taken by the executive department affecting the state’s Research Comm'n and *682 Barkley stand for the rule
system of common schools, especially when the legislative that the power temporarily to reorganize organizational units
department itself requests assistance from the executive—the and administrative agencies of state government during the
only department of state government that can carry out the interim between sessions is a legislatively recognized and

367 Ed. Law Rep. 1176
sanctioned executive power that does not encroach on the outside of session does not change the fact that statutes are
legislative power of the General Assembly. being changed—lawmaking is occurring.
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000113 of 000142

[8] Leaving aside the unassailability of that rule as it applied Moreover, we cannot say as our precedent may suggest
to the facts in both of those cases, it simply does not apply to that because the General Assembly has prescribed a statute
the facts in the present case. “It would be difficult, perhaps that allows the Governor to change statutes, the Governor
impossible, to define the extent of the legislative power of the is simply executing the laws by acting under a grant
state, unless by saying that so far as it is not restricted by the of legislative authority. Taking this notion to its logical
higher law of the state and federal constitutions, it may do conclusion, the General Assembly could pass a law stating,
everything which can be effected by means of a law.” 21 “The “The Governor shall have the power to change all laws of this
legislative power we understand to be the authority under Commonwealth between sessions of the General Assembly,”
the constitution to make the laws, and to alter and repeal and, under the “executing the laws” rule, there would be no
them[.] The difference between the departments undoubtedly separation of powers violation because the Governor, if he or
is that the legislat[ure] makes, the executive executes, and the she changes all laws in the Commonwealth, would simply be
executing *683 the statute. But at its core, the execution of
judiciary construes, the law.” 22
the statute at issue in the present case allows the Governor to
engage in lawmaking—exercise legislative authority.
[9] In the present case, the General Assembly created, by
statute, the various education boards at issue. The General
[10] [11] [12] All this being true, the delegation of
Assembly, by statute, outlined various aspects of those
legislative power by the General Assembly to the executive
boards, ranging from the number of members populating
department is not totally prohibited: “[T]he nondelegation
them to the duties and responsibilities of those boards.
doctrine recognizes that ... given the realities of modern rule-
Simply put, KRS 12.028, which allows the Governor to
making, [the legislature] neither has the time nor the expertise
change the makeup and functions of those boards—even
going so far as abolishing existing boards and creating new to do it all; it must have help.” 23 “As a result of this reality,
ones—is a grant of legislative authority to the executive we have acknowledged that [other branches] may exercise
department. KRS 12.028 allows the executive department legislative ... authority if certain protections are in place.” 24
to engage in lawmaking by allowing the Governor to alter “The General Assembly may validly vest legislative ...
the General Assembly’s duly enacted statutes outlining the authority in [another branch] if the law delegating that
various aspects of the state’s education boards. authority provides ‘safeguards, procedural and otherwise,
which prevent an abuse of discretion by the agency.’ ” 25
Simply because this lawmaking occurs in the interim— “The doctrine of the separation of powers was adopted ...
the period when the legislature is not in session—does to preclude the exercise of arbitrary power. The purpose
not alter the fact that the power being exercised by the
was ... to save the people from autocracy.” 26 “The purpose
Governor is lawmaking. The making and changing of laws
of the nondelegation doctrine should no[ ] longer be either
is the hallmark of the legislative power no matter if it
to prevent delegation or to require statutory standards; the
occurs during the legislative session or in the interim.
purpose should be the much deeper one of protecting against
And lawmaking in the interim is still lawmaking. KRS
12.028 allows the Governor to “between sessions of the unnecessary and uncontrolled discretionary power.” 27
General Assembly, temporarily effect a change in the
state government organization structure” that “include[s] Every reorganization plan the Governor effectuates between
the creation, alteration or abolition of any organizational sessions is reviewed by members of the General Assembly
unit or administrative body and the transfer of functions, both at the front and back ends. 28 Even though the Governor
personnel, funds, equipment, facilities, and records from one can implement the temporary plan in the interim, changes
(1) organizational unit or administrative body to another.” made by the temporary reorganization only survive until
Simply put, KRS 12.028 allows the Governor to change the General Assembly’s next regular session. 29 Not only
the law. That is an exercise of legislative power. The time can the General Assembly *684 affirmatively reject the
within which an action occurs does not change the nature of Governor’s reorganization plan and restore the status quo ante
the action—simply because the changing of statutes occurs —the Governor’s temporary reorganization automatically
reverts to the status existing before the Governor instituted

367 Ed. Law Rep. 1176
for a period of time between regular sessions and that it can

it, even by the General Assembly’s inaction. The fate of
only be effectuated again by another executive order further
the entire temporary executive reorganization-outside-of-
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000114 of 000142

evidences the temporary nature of the executive’s change. The
session mechanism rests wholly in the hands of the General
General Assembly’s continued extensive control over this
Assembly. The General Assembly is instrumentally involved
temporary mechanism precludes this Court at this time from
in the temporary reorganization process and has erected
determining that the General Assembly has abdicated the
its own checks against the executive’s permanent use of
lawmaking power of the legislative department and delivered
executive power to organize state government.
it into the hands of the executive department.
The Attorney General aptly observes that broad
[13] In sum, on the facts before us, neither KRS 12.028
reorganization authority that the Governor can effectuate
nor EO 2017-364 constitutes an unconstitutional delegation
temporarily can, and often does, transmute into a de facto
of legislative power. Nor did the Governor’s reorganization
permanent reorganization of state government by executive
of the Education Professional Standards Board, besides the
order. This is so, the Attorney General argues, because
Governor’s restructuring of its appeal process, constitute
the temporary reorganization mechanism of KRS 12.028
does not prohibit the Governor from effectuating temporary an unconstitutional infringement on the judiciary’s power
because the temporary reorganization of this board does not
reorganization plans in a continuous loop, uninterrupted
by affirmative action of the General Assembly. There may impute the judicial power in any way. 30
be a point at which this continuous reorganization loop
by executive order unconstitutionally encroaches upon the
legislative power of our General Assembly as the Governor *685 III. CONCLUSION.
effectuates what amounts to a permanent change in the
laws that govern organizational units and administrative We affirm the judgment of the Franklin Circuit Court.
bodies. But such is not the case before us today. And
even if it were, some may view as legislative approval the
General Assembly’s repeated acquiescence in the continuous
All sitting. Minton, C.J.; Hughes, Keller, Lambert, and Wright
loop of executive orders that effectively institute the same
JJ., concur. VanMeter, J. concurs in result only by separate
reorganizational changes year after year. In any event, the
opinion, which Buckingham, J., joins.
Attorney General has only placed one executive order in issue
before us in this case, framing this case as a challenge to the VANMETER, J., CONCURRING IN RESULT ONLY:
constitutionality of EO 2017–364 and this application of KRS While I agree with the result of the majority opinion, I
12.028 under the facts presented here, not as a facial challenge disagree with that portion that states that the Governor is
to that statute. exercising “legislative power.” In my view he is exercising
his “executive power” as authorized by the legislature and the
Ultimately, the General Assembly continues to Kentucky Constitution.
maintain control of the temporary-reorganization-outside-
of-legislative-session mechanism. The General Assembly
can put an end to the mechanism. Not only that, but the
General Assembly could choose explicitly to exempt certain Buckingham, J., joins.
boards from the executive’s reorganization power or limit
All Citations
the executive’s reorganization power in any way it chooses.
And the fact that the executive’s interim change only lasts 575 S.W.3d 673, 367 Ed. Law Rep. 1176
Footnotes
1 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 state
government that is not an administrative body, including but not limited to any agency, program cabinet, department,
bureau, division, section or office[.]”

367 Ed. Law Rep. 1176
3 KRS 12.010(8) defines “administrative body” to mean “any multi-member body in the executive branch of the state
government, including but not limited to any board, council, commission, committee, authority or corporation, but does
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000115 of 000142

not 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 the
organizational structure of an organizational unit or administrative body headed by the Kentucky Economic Development
Partnership as created in KRS 154.10–010, or another elected state executive officer unless requested in writing by
that officer.”); KRS 342.1228 (“The Kentucky Workers' Compensation Funding Commission shall not be subject to the
Governor’s power of reorganization under KRS Chapter 12, including attachment or transfer to another organizational
unit or administrative body other than the Labor Cabinet.”); KRS 7.090(1) (“There is created a Legislative Research
Commission as an independent agency in the legislative branch of state government, which is exempt from control by
the 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 of
the Legislature must be deduced from the language it used, when it is plain and unambiguous[.]’ ”) (quoting W. Ky. Coal
Co. 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.2d
62, 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, 102
L.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, 71
L.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 plan
which shall be filed with the Legislative Research Commission.”); KRS 12.028(4) (“When a proposed reorganization
plan is submitted for review under subsection (2) ... the presiding co-chairman of the Legislative Research Commission
shall determine which interim joint legislative committee has appropriate jurisdiction and shall refer the plan to such
committee[.] ... The interim joint legislative committee ... shall review the plan to determine whether the plan can
reasonably be expected to achieve greater economy, efficiency or improved administration in state government.”); KRS
12.028(5) (“The Governor ... shall recommend legislation to the General Assembly [during the session immediately
following the interim period in which the reorganization change was effectuated] to confirm the temporary reorganization

367 Ed. Law Rep. 1176
plan. The subject matter of each executive order relating to reorganization shall be presented to the General Assembly
in a separate bill.”).
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000116 of 000142

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 by
the General Assembly.... If the General Assembly fails to enact a temporary reorganization plan, the Governor ... shall
not 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 any
purpose but to confuse. Though such an agency may adjudicate, it does not exercise judicial power and the term, instead
of 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.

EXHBIIT F
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000117 of 000142

12/10/2019 Beshear's Board Of Education Overhaul Would Be Unprecedented
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000118 of 000142

Listen Live (https://wfpl.org/stream) Calendar (http://events.wfpl.org) Donate (https://louisvillepublicmedia.org/suppo
Gov.-Elect Beshear’s Board Of Education Overhaul

Would Be Unprecedented
By 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/)
https://wfpl.org/gov-elect-beshears-board-of-education-overhaul-would-be-unprecedented/ 1/6
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.”
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000119 of 000142

“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.
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.
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000120 of 000142

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)
Share on Facebook (https://wfpl.org/gov-elect-beshears-board-of-education-overhaul-would-be-unprecedented/?share=facebook&nb=1)
(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.
TOP STORIES
WATCH LIVE: Kentucky Inauguration Day Festivities In Frankfort
(https://wfpl.org/watch-live-kentucky-inauguration-day-festivities-in-frankfort/)
This Week In Conversation: How Kentucky Handles Sexual Assault
(https://wfpl.org/this-week-in-conversation-how-kentucky-handles-sexual-assault/)
Andy Beshear Sworn In As Kentucky's 63rd Governor
(https://wfpl.org/andy-beshear-sworn-in-as-kentuckys-63rd-governor/)
House Democrats Unveil 2 Articles Of Impeachment Against Trump
(https://wfpl.org/house-democrats-unveil-2-articles-of-impeachment-against-trump/)
Get WFPL stories delivered daily.
Your email address Sign up
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000125 of 000142

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.
INTRODUCTION
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000126 of 000142

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.
insulate the Kentucky Board of Education from partisan politics. Specifically, KRS 156.029(2)
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000127 of 000142

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.
mandatorily direct the doing of an action. CR 65.01. With regard to a restraining order, CR
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000128 of 000142

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
irreparable injury. This is a mandatory prerequisite to the issuance of any injunction. Secondly,
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000129 of 000142

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
be rendered completely meaningless. Specifically, the members of the Board that Governor
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000130 of 000142

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:
This Court does not doubt Governor Bevin’s good intentions in adopting these
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000131 of 000142

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)).

The public has a strong interest in ensuring that neither the Governor nor the executive
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000132 of 000142

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.”)).
govern them in carrying out their duties and business. Indeed, Governor Beshear, while serving
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000133 of 000142

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.

Without injunctive relief, any actions taken by an unlawfully-created Board will greatly
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000134 of 000142

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.
KRS 12.028(2) further provides that this ability to reorganize may occur in between
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000135 of 000142

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.
In short, if the Board established by the Executive Order is permitted to proceed, the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000136 of 000142

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.

Respectfully Submitted,
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000137 of 000142

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:
EXHIBIT A
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000121 of 000142

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000122 of 000142
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000123 of 000142
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000124 of 000142
EXHIBIT B
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000138 of 000142

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000139 of 000142
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000140 of 000142

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.

)
Wherefore, IT IS ORDERED AND ADJUDGED that until further Order of this Court the
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000141 of 000142

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 c oncert 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
)
8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000142 of 000142
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

Complaint and Motion For Injunction

Uploaded by

Copyright:

Available Formats

Complaint and Motion For Injunction

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Complaint and Motion For Injunction

Uploaded by

Copyright:

Available Formats

COMMONWEALTH OF KENTUCKY

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000001 of 000142

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000002 of 000142

JACQUELINE COLEMAN, in her official capacity DEFENDANT

VERIFIED COMPLAINT FOR DECLARATION

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

Beshear toward that goal.

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000003 of 000142

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

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

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000004 of 000142

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

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.

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

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.

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000005 of 000142

its statutory functions.

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

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

with the duly appointed board’s service.

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

Each member was appointed by former Governor Matthew Bevin.

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

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

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000006 of 000142

represents Supreme Court District 2.

Member of the Board.

Supreme Court District 1.

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

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

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000007 of 000142

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

Supreme Court District 3.

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

April 14, 2020.

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000008 of 000142

the Commonwealth be “faithfully executed.”

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

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

JURISDICTION AND VENUE

Procedure 57 and 65.

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

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

jurisdiction over the Defendants.

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000009 of 000142

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

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

8378D5B5-E518-4796-8B94-BE4A3FCD6F7C : 000010 of 000142

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