Commonwealth ex rel. Cowan ex rel. Laurel County School District v. Southern Belle Dairy Co.

801 S.W.2d 60, 1990 Ky. LEXIS 143, 1990 WL 211426

• Court: Kentucky Supreme Court
• Decided: December 27, 1990
• Docket: No. 90-SC-640-CL
• Status: Published

Opinions

CERTIFICATION OF THE LAW

On March 9, 1990, the Attorney General of Kentucky brought a civil anti-trust action in the United States District Court for the Eastern District of Kentucky, London Division, in which he alleged that the defendants herein conspired to rig bids for public school milk contracts in violation of the Sherman Act, 15 U.S.C. § 1. This was all done pursuant to recommendation by the Superintendent of Public Instruction and 115 named school districts which have ratified his initiation of this suit.

On April 11, the defendant, Flav-O-Rich, Inc., moved to dismiss this complaint on the grounds that it was in violation of KRS 156.142.

The question submitted to us for certification is whether KRS 156.142 prohibits this action.

The powers of the Attorney General and his duties are set out in KRS 15.020, as follows:

15.020. Chief law officer and adviser — Duty to attend to litigation, write opinions, draft writings — When to appear for Commonwealth. — The attorney general is the chief law officer of the Commonwealth of Kentucky and all of its departments, commissions, agencies, and political subdivisions, and the legal adviser of all state officers, departments, commissions, and agencies, and when requested in writing shall furnish to them his written opinion touching any of their official duties, and shall prepare proper drafts of all instruments of writing required for public use, and shall exercise all common law duties and authority pertaining to the office of the attorney general under the common law, except when modified by statutory enactment. He shall appear for the Commonwealth in all cases in the Supreme Court or Court of Appeals wherein the Commonwealth is interested, and shall also commence all actions or enter his appearance in all cases, hearings, and proceedings in and before all other courts, tribunals, or commissions in or out of the state, and attend to all litigation and legal business in or out of the state required of him by law, or in which the Commonwealth has an interest, and any litigation or legal business that any state officer, department, commission, or agency may have in connection with, or growing out of, his or its official duties, except where it is made the duty of the commonwealth’s attorney or county attorney to represent the Commonwealth. When any attorney is employed for any said agency, the same shall have the approval of such agency before such employment.

The section referred to by the defendants/appellees herein falls under KRS 156.138, which section gives the Attorney General power to institute action to recover school funds from any source which he believes have been erroneously or improperly allowed, and KRS 156.142, which says the jurisdictions of all actions brought thereunder shall be vested in the circuit court of the county in which the school district is located.

It is our opinion that KRS 156.142 is not a limiting statute on the general powers of the Attorney General, and when he is empowered by statute to commence all action in all cases or hearings in all courts, in or out of the state, as set out in KRS 15.020, he is within his authority to commence the present action.

The law is so certified.

All concur except VANCE, J., who dissents and files herewith a separate dissenting opinion.