RENDERED: SEPTEMBER 22, 2022 TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0076-TG (2021-CA-0280)
BRANDIS BRADLEY, INDIVIDUALLY, APPELLANT AND IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE FLOYD COUNTY BAR ASSOCIATION
ON APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE, JUDGE NO. 2021-CI-00789
V.
COMMONWEALTH OF KENTUCKY EX REL. APPELLEES DANIEL CAMERON, ATTORNEY GENERAL; AND MICHAEL ADAMS, SECRETARY OF STATE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
VACATING AND REMANDING WITH INSTRUCTION
Brandis Bradley brings this appeal challenging a ruling of the Franklin
Circuit Court concerning the constitutionality of House Bill (HB) 348,1 which
partially adopted this Court’s 2016 Proposed Judicial Redistricting Plan,
including this Court’s recommendation that one of the divisions of general
jurisdiction in the 31st Judicial Circuit (Floyd Circuit) be eliminated based on
insufficient workload. We accepted transfer from the Court of Appeals because
this case raises important questions regarding the constitutionality of HB 348
1 Acts of Apr. 2, 2018, ch. 57, 2018 Ky. Acts 255. and constitutional standing. After careful review, we conclude that Bradley’s
claims must be dismissed for lack of standing.
I. FACTS AND PROCEDURAL BACKGROUND
In 2016, this Court issued a “Proposed Kentucky Judicial Redistricting
Plan for 2022.” The plan recommended an appropriate number of judges
within each judicial circuit based on the results of the Judicial Workload
Assessment Report.
Then, in February 2017, this Court issued a “Certification of Necessity:
Realignment of Judicial Circuits and Districts and Reallocation of Existing
Judgeships.” The 2017 Certification “certifie[d] to the General Assembly of the
Commonwealth of Kentucky the need to realign circuit and district judicial
boundaries and reallocate existing judgeships” in the manner prescribed within
the Certification. Paragraph VI of the 2017 Certification provided that:
The Supreme Court finds and declares that each section of the judicial redistricting plan set forth in this Certification of Necessity is essentially and inseparably connected with and dependent upon each other. Accordingly, the provisions are nonseverable and if any part of the Judicial redistricting plan is rejected, then the entire Certification of Necessity is rendered void and unenforceable.
During the 2018 Regular Session, the General Assembly passed HB 348,
which partially adopted this Court’s Judicial Redistricting Plan. HB 348
eliminated one of the divisions of general jurisdiction in the 31st Judicial
Circuit (Floyd Circuit) effective January 2, 2023.
After passage of HB 348, this Court issued a second Certification of
Necessity in July 2018. The 2018 Certification “certifie[d] to the General
2 Assembly of the Commonwealth of Kentucky the need to eliminate one circuit
court division in the 3lst Judicial Circuit Floyd Circuit Court.” The 2018
Certification also stated: “Pursuant to HB 348 (2018), Section 9,
implementation herein shall have a delayed effective date of January 2, 2023;
no further Certification of Necessity shall be required of this Court.”
Bradley initiated this action in Franklin Circuit Court in October 2020.
The original plaintiffs were Former Supreme Court Justice Janet L. Stumbo
and Brandis Bradley, individually, and as President of the Floyd County Bar
Association. Stumbo and Bradley argued that HB 348’s elimination of one
division of general jurisdiction in the Floyd Circuit Court violates Section
112(3) of the Kentucky Constitution, which provides that “the General
Assembly having power upon certification of the necessity therefor by the
Supreme Court, to change the number of circuit judges in any judicial circuit.”
Specifically, Stumbo and Bradley contend that passage of HB 348 before this
Court’s 2018 Certification of Necessity was procedurally improper under
Section 112(3) of the Kentucky Constitution.
The Commonwealth intervened as a defendant in this action and moved
to dismiss. Then, Stumbo and Bradley filed a motion for summary judgment.
The Franklin Circuit Court simultaneously granted the Commonwealth’s
motion to dismiss and granted, in part, and denied, in part, the plaintiffs’
motion for summary judgment. In its mixed ruling, the circuit court first
dismissed Stumbo for lack of standing. Then, the court concluded that HB 348
was unconstitutional because it violated the purported procedure by which the
3 branches must act under Section 112(3) of the Constitution. Even so, the
circuit court found Sections 6 and 7 of HB 348 to be valid under the principles
of judicial comity, reasoning that “the Kentucky Supreme Court essentially
ratified the General Assembly’s actions by issuing the 2018 Certification of
Necessity.”
Bradley, but not Stumbo, appealed to the Kentucky Court of Appeals.
Stumbo entered a notice of appearance as co-counsel for Bradley before the
Court of Appeals. After the case was fully briefed and oral argument was
heard, the Court of Appeals recommended transfer to this Court under
Kentucky Rule of Civil Procedure (CR) 74.02(5). We accepted transfer and
ordered an expedited briefing schedule. We now address the parties’
arguments on appeal.
II. STANDARD OF REVIEW
“We review the trial court's issuance of summary judgment de novo and
any factual findings will be upheld if supported by substantial evidence and
not clearly erroneous.”2 Whether a party has standing is a jurisdictional
question of law that is reviewed de novo.3
III. ANALYSIS
The Commonwealth raises two threshold—potentially dispositive—issues
for our consideration. First, the Commonwealth contends that Bradley’s direct
2 Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017). 3 Commonwealth v. B.H., 548 S.W.3d 238, 242 (Ky. 2018) (“Jurisdiction is a
question of law, and our review is de novo.”).
4 brief before this Court does not comply with the Kentucky Rules of Civil
Procedure (“CR”). Second, the Commonwealth argues that Bradley lacks
standing. We address each argument in turn.
A. We decline to strike Bradley’s brief or dismiss for noncompliance with the civil rules regarding the form and contents of briefs.
CR 76.12(4) provides the appropriate form and content for briefs. Parties
who cavalierly disregard the requirements of CR 76.12(4) do so at their own
peril. “A brief may be stricken for failure to comply with any substantial
requirement of [ ] Rule 76.12.”4 Moreover, an appellate court has discretion to
either disregard a particular argument5 or dismiss an appeal altogether for
noncompliance with CR 76.12.6
In granting transfer from the Court of Appeals, we ordered an expedited
briefing schedule and stated that each party was permitted to submit a direct
brief to this Court. As a result, submission of a direct brief to this Court was
left within the parties’ discretion. Even so, upon choosing to submit a brief to
this Court, the parties were required to comply with CR 76.12, unless the
Court directed alternative briefing instructions.
4 CR 76.12(8)(a); see also Commonwealth v. Roth, 567 S.W.3d 591, 595 (Ky. 2019). See Dixon v. Commonwealth, 263 S.W.3d 583, 587 n.11 (Ky. 2008); Smith v. 5
Smith, 235 S.W.3d 1, 4–5 (Ky. App. 2006). 6 See Roth, 567 S.W.3d at 595; see also Craig v. Kulka, 380 S.W.3d 546, 547-49
(Ky. App. 2012) (dismissing appeal for failing to comply with CR 76.12(4)(c)(iv) and (v)); Simmons v. Commonwealth, 232 S.W.3d 531, 533 (Ky. App. 2007) (“[D]ismissal for failure to comply with the provisions of CR 76.12 is discretionary[.]”); Baker v. Campbell Cnty. Bd. of Educ., 180 S.W.3d 479, 482 (Ky. App. 2005) (acknowledging dismissal as appropriate upon the failure to comply with CR 76.12).
5 The Commonwealth is correct that Bradley’s direct brief does not comply
with CR 76.12 in several respects. For instance, the brief does not comply with
CR 76.12(4)(c)(iv) and (v), which require “ample” citations “to the record” to
support a party’s factual assertions. Indeed, Bradley’s statement of the case
totals only three sentences and includes no citations to the record.
Moreover, CR 76.12(4)(c)(v) requires parties to include an argument
section “with ample supportive references to the record and citations of
authority pertinent to each issue of law and which shall contain at the
beginning of the argument a statement with reference to the record showing
whether the issue was properly preserved for review.” But here, Bradley’s
argument section is less than four pages long, cites only one case, and includes
no statement regarding preservation of issues for appellate review.
Instead of complying with the requirements of CR 76.12, Bradley sought
to rely on the pleadings filed in the Court of Appeals. The practice of
incorporating briefing from other courts by reference is not permitted by our
civil rules or caselaw. This Court is not obliged to scour the briefs filed in lower
courts to find what arguments the parties advance on appeal, what legal
authority supports those arguments, and the factual basis underlying those
arguments. If parties choose to file a brief before this Court, they must comply
with the substantive requirements outlined in CR 76.12.
Of course, as Bradley points out, this action comes to us in an unusual
procedural posture. This case was fully briefed before the Court of Appeals and
was transferred to this Court after oral argument before the Court of Appeals
6 but before the Court of Appeals rendered any decision. And we acknowledge
Bradley’s likely frustration with transfer of the matter after full briefing and
oral argument before the Court of Appeals. But upon deciding to file a direct
brief in this Court, Bradley was required to comply with CR 76.12, and she
failed to do so here.
Even so, “[w]hen an appellate advocate fails to abide by [CR 76.12(4)(c)(v)]
our options are: (1) to ignore the deficiency and proceed with the review; (2) to
strike the brief or its offending portions; or (3) to review the issues raised in the
brief for manifest injustice only.”7 Considering the unusual procedural posture
of this case, we exercise our discretion to overlook the deficiencies in Bradley’s
direct brief and proceed with review.
B. Bradley has not established constitutional standing.
“[T]he existence of a plaintiff's standing is a constitutional requirement to
prosecute any action in the courts of this Commonwealth.”8 This Court has
adopted the federal standard for constitutional standing espoused in Lujan v.
Defenders of Wildlife.9 “[A]ll Kentucky courts have the constitutional duty to
ascertain the issue of constitutional standing, acting on their own motion, to
ensure that only justiciable causes proceed in court, because the issue of
7 Roth, 567 S.W.3d at 595 n.9 (citations omitted). 8 Commonwealth Cabinet for Health & Fam. Servs., Dep't for Medicaid Servs. v. Sexton ex rel. Appalachian Reg'l Healthcare, Inc., 566 S.W.3d 185, 188 (Ky. 2018); see also Beshear v. Ridgeway Properties, LLC, 647 S.W.3d 170, 175–76 (Ky. 2022); Overstreet v. Mayberry, 603 S.W.3d 244, 252 (Ky. 2020); Commonwealth v. Bredhold, 599 S.W.3d 409, 414 (Ky. 2020). 9 Sexton, 566 S.W.3d at 188 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992)).
7 constitutional standing is not waivable.”10 This practice “conforms to the
general understanding of constitutional standing as a predicate for a court to
hear a case and the ability of a court, acting on its own motion, to address that
issue.”11
To have constitutional standing, a “plaintiff must have suffered an injury
in fact—an invasion of a legally protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical.”12
The party invoking jurisdiction bears the burden of establishing the elements of
standing.13
1. Bradley has not established constitutional standing in her individual capacity.
Bradley has not established that the alleged injury—elimination of
Division II from the Floyd Circuit Court—harmed her in a concrete and
particularized way. Instead, Bradley’s alleged injuries constitute nonjusticiable
generalized grievances.
“To have standing, a litigant must seek relief for an injury that affects
him [or her] in a ‘personal and individual way.’”14 The litigant “must possess a
‘direct stake in the outcome’ of the case.”15 A litigant raising a generally
10 Sexton, 566 S.W.3d at 192 (emphasis in original). 11 Id. 12 Lujan, 504 U.S. at 560 (internal citations and quotations omitted). 13 Id. at 561. 14 Hollingsworth v. Perry, 570 U.S. 693, 706 (2013) (quoting Lujan, 504 U.S. at 560). 15 Id. (quoting Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 64 (1997)).
8 available grievance about government, no matter how sincere, and claiming
only harm to her and every other citizen's interest in the proper application of
the laws, does not state a justiciable case or controversy.16
The complaint in this action alleges that Bradley is a resident, registered
voter, and taxpayer in Floyd County. But none of these classifications confer
constitutional standing for Bradley to challenge the elimination of one division
of the Floyd Circuit Court. Bradley does not argue that she is personally and
uniquely impacted by HB 348 as a citizen or voter. Nor could she. Any citizen
or voter in Floyd County could assert injuries identical to those advanced in
Bradley’s complaint. As a result, Bradley’s claims constitute generalized
grievances.
Additionally, Bradley has failed to demonstrate that she is entitled to
taxpayer standing. Kentucky courts recognize taxpayer standing in limited
circumstances as a matter of equity.17 Typical cases invoking taxpayer
standing involve litigants suing government entities or their agents to challenge
the propriety of city, county, or state expenditure of public funds.18 Here,
Bradley makes no allegation that this action involves a challenge to the
propriety of expenditure of government funds.
Moreover, Bradley contends that she has standing as an “eligible” or
“interested” candidate for judicial office in the circuit court division eliminated
16 Id. (citing Lujan, 504 U.S. at 573–74). 17 See Sexton, 566 S.W.3d at 194 n.33; see also Overstreet, 603 S.W.3d at 263. 18 See Overstreet, 603 S.W.3d at 263.
9 by HB 348. But Bradley’s eligibility as a potential candidate for circuit judge in
Floyd County does not demonstrate a concrete or particularized injury that is
personal to Bradley. Instead, Bradley’s asserted harm is hypothetical and
conjectural. Any attorney residing in Floyd County and meeting the minimum
requirements for the office of circuit judge could assert identical injuries to
those advanced by Bradley.
The United States Supreme Court has recently rejected standing
arguments under similar facts. In Carney v. Adams, the United States
Supreme Court held that a plaintiff did not have standing to challenge an
eligibility requirement for Delaware state court judges because the plaintiff had
not shown that he was “able and ready” to apply to become a judge.19 Without
evidence that the plaintiff was likely to apply to become a judge, the Supreme
Court held that his challenges to Delaware’s judicial eligibility requirements
were nonjusticiable generalized grievances.20
Similarly, Bradley has failed to demonstrate that she has a personal and
individual interest in running for the circuit judgeship eliminated by HB 348
other than general eligibility or interest. Instead, the facts reflect a contrary
conclusion. The Court of Appeals took judicial notice of the fact that Bradley
had filed to run for a position on the Floyd District Court, not Floyd Circuit
Court, Division II. As a result, Bradley lacks constitutional standing in her
19 141 S. Ct. 493, 499–500 (2020). 20 Id.
10 individual capacity to challenge HB 348 because she has failed to demonstrate
a concrete and particularized injury-in-fact.
2. Bradley lacks representative standing as President of the Floyd County Bar Association.
Bradley also lacks associational standing as President of the Floyd
County Bar Association. In her Complaint, Bradley asserts that she “also
brings this action in her capacity as President of the Floyd County Bar
Association, [which] voted unanimously to institute this litigation on October 2,
2020.”
There are two problems with Bradley’s assertion of associational
standing. First, it does not appear that the association seeking standing, the
Floyd County Bar Association, was a plaintiff in the initial complaint. Second,
even suing in her capacity as President of the Floyd County Bar Association,
Bradley has not demonstrated that she satisfies the requirements for
associational standing.
Initially, the Floyd County Bar Association was not explicitly and clearly
listed as a named plaintiff in the complaint. The caption of the complaint lists
“JANET L. STUMBO and BRANDIS BRADLEY, Individually and as President of
the FLOYD COUNTY BAR ASSOCIATION” as plaintiffs. And the first sentence
of the Complaint says, “Come the Plaintiffs, Janet L. Stumbo, Brandis Bradley,
and the Floyd County Bar Association, by counsel, and state as follows[.]” But
the Floyd County Bar Association is not clearly listed as a plaintiff in the case
caption. Instead, Bradley is listed as a plaintiff in her capacity as president of
the Association. More importantly, the Floyd County Bar Association is not 11 listed as a named plaintiff in the substantive text of the Complaint. Instead,
the text of the complaint only lists “Brandis Bradley . . . in her capacity as
President of the Floyd County Bar Association.”
The circuit court twice pointed out that the Association was not properly
named as a plaintiff in the complaint. Furthermore, the circuit court correctly
stated that the “best practice would have been for Plaintiffs to directly name
the Floyd County Bar Association.” Of course, when considering a motion to
dismiss, pleadings are read in the light most favorable to the plaintiff.21 But a
plaintiff is also the master of his or her complaint.22 As a result, Bradley was
solely responsible for naming the proper parties in the complaint.
Moreover, Bradley cannot add the Floyd County Bar Association as a
plaintiff by simply adding the Association to the caption of her notice of
appeal.23 Bradley was free to attempt to amend her complaint or move to add
the Association as a party. Having done neither, the Association is not a
proper party in this appeal.
Regardless, even suing in her official capacity as President of the Floyd
County Bar Association, Bradley has not demonstrated that the Association
has standing to sue on behalf of its members in this action. The United States
Supreme Court has espoused three requirements for an association to
demonstrate standing in federal court:
21 Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010). 22 See Segal v. Fifth Third Bank, N.A., 581 F.3d 305, 312 (6th Cir. 2009). 23 See CR 73.03(1) (“The notice of appeal shall specify by name all appellants
and all appellees[.]”).
12 (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit.24
This Court has not held that all three elements of this federal
associational standing test apply in Kentucky courts.25 But “at least the first
requirement must apply.”26 An association can have standing only if its
members could have sued in their own right.27 “Otherwise the primary
requirement for standing, that the party has a real interest in the litigation,
would be thwarted.”28
Bradley’s complaint fails to satisfy the first prong of the three-part test
for associational standing. The circuit court concluded that “members of the
Floyd County Bar association have a ‘real and substantial’ interest in
maintaining their current judicial structure.” But a sincere interest in
preserving the current judicial structure of the Floyd Circuit Court, standing
alone, does not demonstrate that the members of the Floyd County Bar
24Commonwealth ex rel. Brown v. Interactive Media Ent. & Gaming Ass’n, Inc., 306 S.W.3d 32, 38 (Ky. 2010) (quoting Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977)). 25 See id. Recently, the United States Court of Appeals for the Sixth Circuit questioned the continued validity of the federal associational standing doctrine, noting that the United States Supreme Court’s recent cases demonstrate that a nonparty injury alone does not suffice to confer standing. See Association of Am. Physicians & Surgeons v. FDA, 13 F.4th 531, 537–43 (6th Cir. 2021). But we need not address the continued validity of associational standing in Kentucky courts here because such an analysis would constitute dictum because it is “unnecessary to the resolution of [this] case.” Id. at 547 (Siler, J., concurring). 26 Id. 27 Id. 28 Id.
13 Association have standing to sue in their own right. For instance, Bradley is
the only remaining named plaintiff who is also a member of the Association.
Yet we have already established that Bradley has failed to demonstrate
constitutional standing in her individual capacity.
Moreover, the Association’s members do not have individual standing to
sue to remedy alleged injuries to their clients. The circuit court noted that the
Association’s members “have expressed concern that reducing the number of
judges will have a drastic impact on dockets.” And, in her motion for summary
judgment, Bradley argued that the Association’s members were “affected by the
loss of Division II because they represent clients in criminal and civil cases who
will lose trial dates due to the loss of Division II.”
But Bradley’s argument is unavailing. The Association does not
demonstrate that its members will suffer a concrete and particularized injury
based on speculative harm to unspecified and unnamed clients.29 Importantly,
Bradley does not argue that the elimination of Division II of the Floyd Circuit
Court will result in concrete and particularized injuries to the Association’s
attorney members. Instead, under Bradley’s logic, unnamed, third-party
clients would be injured by the elimination of Division II, not the members of
the Association themselves. This attenuated injury is neither direct nor
personal to the Association’s members. Importantly, no client or litigant with a
29Associated Indus. of Ky. v. Commonwealth, 912 S.W.2d 947, 951 (Ky. 1995) (“The assertion of one’s own legal rights and interests must be demonstrated and the claim to relief will not rest upon the rights of third persons.”) (citing Warth v. Seldin, 442 U.S. 490 (1975)).
14 court date pending in Floyd Circuit Court, Division II, has been named as a
plaintiff on the face of Bradley’s complaint. And Bradley has made no
argument concerning why those unspecified clients cannot sue to remedy the
injuries alleged in the complaint.
Ultimately, the Floyd County Bar Association has not demonstrated
associational standing because the Association is not plaintiff in this action.
Regardless of that defect, the Association has also failed to demonstrate that its
members would otherwise have standing to sue in their own right. Here, the
Association seeks third-party standing to represent unspecified, third-party
clients without any argument that these clients are unable to represent their
own interests in the courts of this Commonwealth. As such, the Floyd County
Bar Association does not have associational standing to bring the claims
asserted in this action.
3. We do not consider the standing of Stumbo in this action.
We do not consider whether Stumbo has standing to bring this action.
The complaint lists “Janet L. Stumbo” as a plaintiff to this action. The circuit
court ruled that Stumbo lacked standing, concluding that her alleged injury
was not sufficiently “distinct and palpable” to confer constitutional standing.
In the notice of appeal to the Court of Appeals, Stumbo is listed in the
case caption but is not listed as an appellant in the body of the notice. The
relevant text of the notice of appeal says, “Comes the Plaintiff, Brandis Bradley,
individually and in her official capacity as President of the Floyd County Bar
Association and the Floyd County Bar Association, and hereby files their Notice
15 of Appeal. . . . On Appeal, Brandis Bradley, individually, and In her official
capacity as President of the Floyd County Bar Association, and the Floyd
County Bar Association, will be the Appellants[.]” Stumbo did not appeal the
ruling of the Franklin Circuit Court regarding her constitutional standing and
is not an appellant in this appeal.30 As a result, we decline to render an
advisory opinion on the Franklin Circuit Court’s ruling that Stumbo lacked
constitutional standing in this matter.
IV. CONCLUSION
After review, we conclude that Bradley lacks standing on this record.
Bradley has not alleged a concrete and particularized injury-in-fact to confer
constitutional standing in her individual capacity. Additionally, the Floyd
County Bar Association is not a proper party in this appeal and has not
demonstrated associational standing. The judgment of the Franklin Circuit
Court is vacated, and this matter is remanded with instruction to dismiss the
action in its entirety without prejudice.
All sitting. All concur.
30 See CR 73.03(1) (“The notice of appeal shall specify by name all appellants
16 COUNSEL FOR APPELLANT:
Janet Lynn Stumbo Ned Barry Pillersdorf Ryan Douglas Mosley Pillersdorf Law Offices
COUNSEL FOR APPELLEES:
Courtney Elizabeth Albini Office of the Solicitor General
Brett Robert Nolan Matthew Franklin Kuhn Office of the Attorney General