Daniel Cameron, in His Official Capacity as Attorney General of the Commonwealth of Kentucky v. Jefferson County Board of Education

• Court: Court of Appeals of Kentucky
• Decided: October 5, 2023
• Docket: 2022 CA 000964
• Status: Unknown

Opinion

RENDERED: OCTOBER 6, 2023; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-0964-MR

DANIEL CAMERON, ATTORNEY GENERAL, ON BEHALF OF THE COMMONWEALTH OF KENTUCKY APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE CHARLES L. CUNNINGHAM, JUDGE ACTION NO. 22-CI-002816

JEFFERSON COUNTY BOARD OF EDUCATION AND DR. JASON E. GLASS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF EDUCATION APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.

KAREM, JUDGE: In 2022, the Kentucky General Assembly passed an omnibus

education bill, Senate Bill (S.B.) 1, entitled “an Act relating to education and declaring an emergency.”1 Section 3(2) of S.B. 1, codified in Kentucky Revised

Statutes (KRS) 160.370(2), significantly modifies the relationship between local

boards of education and superintendents, by giving greater autonomy and power to

the superintendents. KRS 160.370(2) only applies, however, in “a county school

district in a county with a consolidated local government[.]” KRS 160.370(2).

The only school district which meets this description is that of Jefferson County.

The Jefferson County Board of Education (the Board) sought a

declaratory judgment in Jefferson Circuit Court, contending that five specific

provisions of KRS 160.370(2) violate the ban on special and local legislation found

in Sections 59 and 60 of the Kentucky Constitution. The circuit court ruled that

the contested provisions violated not only Section 59 but also the equal protection

clause found in Section 2 of the Kentucky Constitution.

The appellant, the Attorney General of Kentucky, argues that the

Board lacked constitutional standing to challenge the legislation and failed to name

a necessary party to the suit. As to the merits, he argues that the challenged

provisions survive constitutional scrutiny under Sections 59 and 60 because they

do not apply to a particular individual, object, or locale and that the legislation

creates a classification which passes rational basis review for purposes of equal

protection.

1 2022 Ky. Acts ch. 196, S.B. 1.

-2- Upon careful consideration, we hold that the Board had standing to

bring this suit, that it did not fail to name a necessary party, and that the contested

provisions of KRS 160.370(2) are local or special legislation prohibited under

Sections 59 and 60 of the Kentucky Constitution.

I. FACTUAL AND PROCEDURAL BACKGROUND

The five subsections of KRS 160.370(2) at issue in this appeal provide

as follows:

(2) For a county school district in a county with a consolidated local government adopted under KRS Chapter 67C:

(a) A local board of education shall:

1. Delegate authority to the superintendent over the district’s day-to-day operations and implementation of the board-approved strategic plan in a manner that promotes the efficient, timely operation of the district, including but not limited to the authority over contracts related to daily operations of the district, pupil transportation, personnel matters, and the organizational structure of administrative staff;

2. Except as expressly required by statute, including subparagraphs 3. and 5. of this paragraph, not meet more than once every four (4) weeks for the purpose of approving necessary administrative matters[.]

KRS 160.370(2)(a)1., 2.

-3- (b) Notwithstanding any provision to the contrary in subsection (1) of this section, the superintendent shall:

2. Prepare all rules, regulations, bylaws, and statements of policy for approval and adoption by the board, with approval not to be withheld without a two-thirds (2/3) vote of the board to deny approval or adoption; [and]

....

5. Notwithstanding any law that assigns an administrative duty, responsibility, or authority to a board of education, or other law to the contrary, be responsible for any administrative duty not explicitly granted to the board under paragraph (a) of this subsection[.]

KRS 160.370(2)(b)2., 5.

(c) If the county adopts the provisions of the Kentucky Model Procurement Code, the board shall authorize the superintendent to approve purchases, in accordance with small purchase procedures adopted by the board, for any contract for which a determination is made that the aggregate amount of the contract does not exceed two hundred fifty thousand dollars ($250,000). The board shall authorize the superintendent to approve a line-item transfer within its annual budget as she or he deems necessary, provided that the aggregate amount of any individual transfer does not exceed two hundred fifty thousand dollars ($250,000). The superintendent shall provide a quarterly report to the board on any purchases made under this subsection.

KRS 160.370(2)(c).

To summarize, the provisions that are being challenged require the

school board to give the superintendent authority over the “day-to-day operations

-4- and implementation of the board-approved strategic plan”; require the board to

limit its meetings to once every four weeks; require a two-thirds vote of the board

to disapprove a rule, regulation, by-law, or statement of policy of the

superintendent; require the board to grant the superintendent responsibility for

“any administrative duty not explicitly granted to the [school] board”; and require

the board to authorize the superintendent to make purchases not exceeding

$250,000 and transfers to the annual budget in the same amount, without board

approval.

As previously stated, the Jefferson County school district is currently

the only “county school district in a county with a consolidated local government

adopted under KRS Chapter 67C[.]” KRS 160.370(2).

The Board’s complaint named one defendant, Dr. Jason E. Glass, in

his official capacity as the Commissioner of Education of Kentucky (the

Commissioner). The complaint sought a declaratory judgment that the challenged

provisions of S.B. 1 violate the prohibition against special or local legislation

found in Sections 59 and 60 of the Kentucky Constitution and requested temporary

and permanent injunctive relief. The Attorney General entered an appearance,

pursuant to KRS 418.075(1) and KRS 15.020(3), to defend the constitutionality of

the legislation.

-5- The circuit court conducted a hearing at which the Commissioner

expressed no opinion regarding the constitutionality of the provisions, or whether

he would enforce them, stating it was not his role to determine if they were

constitutional and that he had to assume they were constitutional until told

otherwise. The Attorney General argued that because the Commissioner was not

taking a position contrary to the Board it was unclear whether a case or

controversy existed. Counsel for the Board indicated that Dr. Marty Pollio, the

Superintendent of the Jefferson County School District, was not planning to defend

the challenged provisions.

The Jefferson Circuit Court entered a declaratory judgment holding

that the challenged provisions violate Section 59 of the Kentucky Constitution,

which prohibits special and local legislation. Of its own accord, it held that the

provisions also violate the equal protection clause of Section 2 of the Kentucky

Constitution. Its order declared that the Board did not have to comply with the

provisions, but it did not enter an injunction, explaining that it did “not envision,

absent a differing opinion being issued by an appellate court, that anyone will be

actively trying to enforce the contested provisions once this declaratory judgment

has been disseminated.” The circuit court retained the right to enter an injunction

if any attempts were made to enforce the provisions after the date the statute

became effective. Upon unopposed motion by the Board, the circuit court entered

-6- a motion to amend the judgment to clarify the specific provisions of S.B. 1 to

which the declaratory judgment applied. This appeal by the Attorney General

followed. The President of the Kentucky Senate, Robert Stivers, submitted an

amicus curiae brief defending the legislation.

II. STANDARD OF REVIEW

“The standard of review on appeal from a declaratory judgment is

whether the judgment was clearly erroneous.” Public Service Commission of

Kentucky v. Metropolitan Housing Coalition, 652 S.W.3d 648, 651 (Ky. App.

2022), discretionary review denied (Oct. 12, 2022) (citing American

Interinsurance Exchange v. Norton, 631 S.W.2d 851, 852 (Ky. App. 1982)).

III. ANALYSIS

i. The Board had standing to challenge the statutory provisions

The Attorney General argues that the Board lacked constitutional

standing to bring this suit. Whether the Board has standing “is a jurisdictional

question of law that is reviewed de novo.” Ward v. Westerfield, 653 S.W.3d 48, 51

(Ky. 2022), reh’g denied (Sep. 22, 2022) (citation omitted).

The existence of standing is of paramount importance in any lawsuit.

The Kentucky Supreme Court “has held, and reaffirmed, that ‘the existence of a

plaintiff’s standing is a constitutional requirement to prosecute any action in the

courts of this Commonwealth.’” Id. (quoting Commonwealth Cabinet for Health

-7- & Family Services, Department for Medicaid Services v. Sexton by & through

Appalachian Regional Healthcare, Inc., 566 S.W.3d 185, 188 (Ky. 2018)).

To determine whether a party has standing, Kentucky has adopted the

federal Lujan test. Sexton, 566 S.W.3d at 196; see Lujan v. Defenders of Wildlife,

504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). The test

requires the plaintiff to prove three elements: (1) injury, (2) causation, and (3)

redressability. Id. “To invoke the court’s jurisdiction, the plaintiff must allege an

injury caused by the defendant of a sort the court is able to redress.” Kenton

County Board of Adjustment v. Meitzen, 607 S.W.3d 586, 597 (Ky. 2020) (citations

omitted). Kentucky’s Declaratory Judgment Act allows the courts to determine a

litigant’s rights before harm occurs if the plaintiff shows the existence of an actual

controversy. Commonwealth v. Kentucky Retirement Systems, 396 S.W.3d 833,

839 (Ky. 2013); KRS 418.040. Such a controversy occurs when a defendant’s

position would “impair, thwart, obstruct or defeat plaintiff in his rights.” Kentucky

Retirement Systems, 396 S.W.3d at 839 (quoting Revis v. Daugherty, 215 Ky. 823,

287 S.W. 28, 29 (1926)).

The Attorney General argues that the Board failed to prove the

elements of causation and redressability, because even if the challenged provisions

injure the Board by transferring some of its powers to the Superintendent, the

-8- Board cannot show that the Commissioner caused that injury or that the Court can

redress that injury by granting relief against the Commissioner.

When, as in this case, a plaintiff is bringing a pre-enforcement

challenge to the constitutionality of a statute, the Lujan elements of causation and

redressability are met when the plaintiff names as the defendant the government

official charged with enforcing the law. So, for example, plaintiffs who brought

suit against the Governor and the Commissioner of Agriculture for failure to

enforce animal protection statutes failed to meet the Lujan element of causation

because “the animal shelter statutes do not vest enforcement power with the

Governor or the Commissioner of Agriculture.” Kasey v. Beshear, 626 S.W.3d

204, 209 (Ky. App. 2021), discretionary review denied (Aug. 18, 2021). By

contrast, plaintiffs who challenged the constitutionality of the Education

Opportunity Account Act as impermissibly redirecting state revenues to public

schools properly named as defendants the Secretary of the Kentucky Finance and

Administration Cabinet and the Commissioner of the Kentucky Department of

Revenue “based on their statutorily-prescribed roles in implementing the

program.” Commonwealth ex rel. Cameron v. Johnson, 658 S.W.3d 25, 30 (Ky.

2022).

Kentucky law in this respect mirrors the federal standard, which

provides that “when a plaintiff brings a pre-enforcement challenge to the

-9- constitutionality of a particular statutory provision, the causation element of

standing requires the named defendants to possess authority to enforce the

complained-of provision.” Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir.

2007). For standing to exist, there must be “an actual enforcement connection –

some enforcement power or act that can be enjoined – between the defendant

official and the challenged statute.” Okpalobi v. Foster, 244 F.3d 405, 419 (5th

Cir. 2001). Similarly, to meet the redressability prong of the Lujan test in the

context of a challenge to a statute, the named defendant must have the power to

enforce the challenged statute. Bronson, 500 F.3d at 1111. The enforcement

requirement is critically important because, without it, a court could issue “what

would amount to an advisory opinion without the possibility of any judicial relief.”

California v. Texas, 539 U.S. ___, 141 S. Ct. 2104, 2116, 210 L. Ed. 2d 230 (2021)

(internal quotation marks and citation omitted).

The Board argues that the Commissioner, the chief state school

officer,2 was the appropriate defendant for purposes of standing because the

contested statutory provisions are enforceable only by the Commissioner, as

provided in KRS 156.210, which states:

2 The Commissioner is appointed by the Education Management Selection Commission “to carry out the duties of the chief state school officer.” KRS 156.147(2).

-10- (1) The chief state school officer shall have access to the papers, books and records of all teachers, trustees, superintendents, or other public school officials.

(2) He may administer oaths and may examine witnesses under oath in any part of the state in any matter pertaining to the public schools, and may cause the testimony to be reduced to writing. He may issue process to compel attendance of witnesses before him and compel witnesses to testify in any investigation he is authorized to make.

(3) When he or his assistants find any mismanagement, misconduct, violation of law, or wrongful or improper use of any district or state school fund, or neglect in the performance of duty on the part of any official, he shall report the same, and any other violation of the school laws discovered by him, to the Kentucky Board of Education, which shall, through the chief state school officer or one (1) of his assistants, call in the county attorney or the Commonwealth’s attorney in the county or district where the violation occurs, and the attorney so called in shall assist in the indictment, prosecution, and conviction of the accused. If prosecution is not warrantable, the Kentucky Board of Education may rectify and regulate all such matters.

KRS 156.210.

The Attorney General argues that the challenged statutory provisions

do not provide the Commissioner with sufficient enforcement powers to create

standing. He points out that the challenged legislation does not transfer the

Board’s powers to the Commissioner, but to the Superintendent, and it does not

empower the Commissioner to take any action to enforce the provisions. He

contends that KRS 156.210(3) cannot make up for the Commissioner’s “lack of

-11- role” and that any fear he will choose to enforce the statutory provisions is “pure

conjecture.”

But the Commissioner’s duty to enforce the statute is not conjectural;

it is mandatory. The Commissioner is the executive and administrative officer of

the Kentucky Board of Education in its administration of all educational matters

and functions. KRS 156.148(3). The Commissioner must report any violations of

the law to the Board, which is required, through the Commissioner or his

assistants, to call in the county attorney or Commonwealth’s attorney who in turn

is required to assist in prosecuting the accused. KRS 156.210(3). If prosecution is

not warranted, the Kentucky Board of Education has the discretion to rectify and

regulate the matter. Id. Whether a defendant possesses enforcement authority

sufficient for standing purposes turns on whether the defendant “has ‘some

connection’ with the enforcement of the [challenged state law].” Digital

Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 957 (8th Cir. 2015). The

Commissioner’s role under KRS 156.210(3) meets this standard.

The Attorney General contends that because the challenged legislation

does not contain any specific internal provision empowering the Commissioner to

take any action that could harm the Board, the Board is unable to establish that any

injury it suffers is traceable to the Commissioner. He relies on California v. Texas,

supra, a case in which the plaintiffs claimed the Patient Protection and Affordable

-12- Care Act, which required them to purchase minimal essential health insurance

coverage, was unconstitutional. Originally, the Act imposed a monetary penalty

on individuals for failing to purchase such coverage, and provided that the penalty

would be included with the taxpayer’s federal tax return. Accordingly, the IRS

required taxpayers to report on their federal income tax return whether they carried

minimum essential coverage. Congress thereafter amended the Act to reduce that

penalty to $0. The Supreme Court held that this amendment deprived the plaintiffs

of standing because “the statutory provision, while it tells them to obtain that

[minimum essential health insurance] coverage, has no means of enforcement.

With the penalty zeroed out, the IRS can no longer seek a penalty from those who

fail to comply.” California, 141 S. Ct. at 2114. “Because of this, there is no

possible Government action that is causally connected to the plaintiffs’ injury – the

costs of purchasing health insurance.” Id. If the monetary penalty still existed, the

IRS would have enforcement authority; without the penalty, the IRS had nothing to

enforce and there was simply no means to compel the plaintiffs to purchase the

insurance.

By contrast, KRS 156.210(3) imposes a clear and mandatory duty on

the Commissioner to report violations of law and to seek enforcement of those

laws. The Commissioner has the means to compel enforcement of statutes, either

via criminal proceedings or referral to the state Board, which is responsible for

-13- “the management and control of the common schools and all programs operated in

these schools,” KRS 156.070(1), and whose sweeping powers include the ability to

remove school board members. See Gearhart v. Kentucky State Bd. of Educ., 355

S.W.2d 667, 670 (Ky. 1962). It is true that when a prosecution is not deemed

appropriate, the Kentucky Board of Education is given the discretion to rectify and

regulate all such matters, but the Commissioner is the entity tasked with initiating

and executing such a proceeding.

The Attorney General argues that Superintendent Pollio is nonetheless

free to follow the challenged provisions without any interference from the

Commissioner. But the Commissioner has the authority and the duty under KRS

156.210(3) to proceed against the Superintendent if he attempts to follow the

provisions after they are declared unconstitutional.

We conclude that the Board had standing to bring this suit because the

Commissioner possesses sufficient enforcement powers to meet the causation and

redressability elements of the Lujan test.

ii. The Superintendent was not a necessary party

In a related argument, the Attorney General argues that this appeal

should be dismissed because Superintendent Pollio was a necessary party under

both Kentucky Rules of Civil Procedure (CR) 19.01 and the terms of the

Declaratory Judgment Act.

-14- CR 19.01 provides in pertinent part that

[a] person who is subject to service of process, either personal or constructive, shall be joined as a party in the action if (a) in his absence complete relief cannot be accorded among those already parties, or (b) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case an involuntary plaintiff.

The Declaratory Judgment Act states that “[w]hen declaratory relief is

sought, all persons shall be made parties who have or claim any interest which

would be affected by the declaration, and no declaration shall prejudice the rights

of persons not parties to the proceeding.” KRS 418.075.

The Attorney General argues that, fundamentally, the Board’s dispute

is with the Superintendent, whatever Dr. Pollio’s personal view of the matter and

his personal assurances that he will not follow the statute, and that the Board

cannot seek judicial relief with respect to the Superintendent’s duties without

naming him as a party.

As a preliminary matter, the Board contends that because the Attorney

General did not intervene in the lawsuit and become a party, choosing instead to

-15- enter an appearance to defend the constitutionality of the challenged provisions, he

is not empowered to raise this issue at all. The Board relies on a series of cases

which hold that CR 19.01 can be invoked only by parties. “[T]he provision of the

Declaratory Judgment Act relating to parties, KRS 418.075, and . . . the civil rule

which prescribes what parties shall be joined if feasible, CR 19.01[,] . . . can be

invoked only by parties, not by a person who seeks to become a party.” Murphy v.

Lexington-Fayette County Airport Bd., 472 S.W.2d 688, 689-90 (Ky. 1971).

(Emphasis in original.) Holding otherwise would permit a nonparty to “simply lie

back and await the result of the action in the circuit court and then, if not satisfied

with the judgment, compel a retrial by the device of intervening after judgment.”

Id. at 690. Uninsured Employers’ Fund v. Bradley, 244 S.W.3d 741, 746 (Ky.

App. 2007).

Under KRS 418.075(1), the Attorney General is specifically entitled

to be heard regarding the validity of a statute, without becoming a party. The

Attorney General, although not a party, was present from the outset of this

litigation and argued that the Superintendent was a necessary party; he did not “lie

back” and await the outcome of the proceedings before raising an attack on the

judgment. Under these circumstances, the Attorney General is entitled to appellate

review of his argument that the Superintendent was a necessary party.

-16- The express language of the challenged provisions requires action on

the part of the Board to delegate authority to the Superintendent over day-to-day

operations and requires the Board to authorize him to approve purchases. KRS

160.370(2)(a)1. and 160.370(2)(c). The Superintendent is not empowered to force

the Board to limit the frequency of its meetings. KRS 160.370(2)(a)2. Only KRS

160.370(2)(b)2. and 5. expressly constrain the Board from withholding its approval

of the Superintendent’s rules and regulations without a two-thirds vote and make

the Superintendent responsible for any administrative duty not explicitly granted to

the Board. But the Superintendent is not given any means by which to enforce

these latter provisions. The Superintendent’s presence as a party was not required.

iii. The contested provisions violate the prohibition against special and local legislation

Finally, we address whether the circuit court erred in holding that the

challenged legislation violates the prohibition against special or local legislation

found in Sections 59 and 60 of the Kentucky Constitution. The constitutionality of

a statute is a question of law which we review de novo. Teco/Perry County Coal v.

Feltner, 582 S.W.3d 42, 45 (Ky. 2019). “In considering an attack on the

constitutionality of legislation, this Court has continually resolved any doubt in

favor of constitutionality rather than unconstitutionality.” S.W. v. S.W.M., 647

S.W.3d 866, 873 (Ky. App. 2022), discretionary review denied (Aug. 16, 2022).

-17- Sections 59 and 60 first appeared in Kentucky’s fourth and final

Constitution in 1891. They represented an attempt to prevent the legislature from

wasting its time on mundane and trivial local matters and neglecting general

legislation. Calloway County Sheriff’s Department v. Woodall, 607 S.W.3d 557,

571 (Ky. 2020).

Section 59 expressly forbids local or special legislation relating to the

management of public schools. It states in relevant part that “[t]he General

Assembly shall not pass local or special acts concerning any of the following

subjects, or for any of the following purposes, namely: . . . [t]o provide for the

management of common schools.” KY. CONST. § 59(25).

Section 60 provides that

[t]he General Assembly shall not indirectly enact any special or local act by the repeal in part of a general act, or by exempting from the operation of a general act any city, town, district or county; but laws repealing local or special acts may be enacted. No law shall be enacted granting powers or privileges in any case where the granting of such powers or privileges shall have been provided for by a general law, nor where the courts have jurisdiction to grant the same or to give the relief asked for. No law, except such as relates to the sale, loan or gift of vinous, spirituous or malt liquors, bridges, turnpikes or other public roads, public buildings or improvements, fencing, running at large of stock, matters pertaining to common schools, paupers, and the regulation by counties, cities, towns or other municipalities of their local affairs, shall be enacted to take effect upon the approval of any other authority than

-18- the General Assembly, unless otherwise expressly provided in this Constitution.

KY. CONST. § 60.

The original test for a violation of Section 59 was simply that “special

legislation applies to particular places or persons as distinguished from classes of

places or persons[.]” Woodall, 607 S.W.3d at 567 (quoting Greene v. Caldwell,

170 Ky. 571, 587, 186 S.W. 648, 654 (1916)). With the passage of time, however,

special, or local laws became confused with class legislation and for years,

Kentucky courts mistakenly applied what was essentially an equal protection

analysis to the special legislation prohibition in Section 59. They followed the test

set out in Schoo v. Rose, 270 S.W.2d 940 (Ky. 1954), which states: “[I]n order for

a law to be general in its constitutional sense it must meet the following

requirements: (1) [i]t must apply equally to all in a class, and (2) there must be

distinctive and natural reasons inducing and supporting the classification.” Id. at

941.

The Woodall Court held that the Schoo test, whose origins can be

traced to the 1792 Constitution, does not “comport with a proper interpretation” of

Sections 59 and 60 as they were understood at the time of the passage of the Third

Constitution in 1891. Woodall, 607 S.W.3d at 566. Woodall set forth the

following test which represents a return to the original test: a statute is special or

local legislation prohibited by Sections 59 and 60 if “the statute applies to a

-19- particular individual, object or locale.” Challenges based on classification, on the

other hand, succeed or fail on the basis of equal protection analysis under Sections

1, 2, and 3 of the Kentucky Constitution. Woodall, 607 S.W.3d at 573.

The circuit court held that the challenged legislation in this case

violated Section 59 because, although it did not mention Jefferson County

expressly by name, the provisions plainly singled out counties with a type of

governance that only exists in Jefferson County.

The Attorney General argues that the challenged provisions instead

represent a classification which could apply to any school district in a county with

a consolidated local government that exists now, or in the future, and consequently

the statute is one of general application across the entire Commonwealth. The

Attorney General points out that nothing is preventing a city in a county with a

population of more than 250,000 residents from choosing to become a city of the

first class and thereafter opting for consolidation with its county under KRS

67C.101(1). In other words, the statute applies to a class rather than a specific

individual, object, or locale, and therefore does not violate Section 59.

In the same vein, the amicus brief of the President of the Kentucky

Senate contends that this case falls squarely in a line of cases holding that statutes

applicable only in counties of a certain population are not special, local legislation

under Section 59. For example, in Winston v. Stone, our highest court held that a

-20- taxation statute applying only to counties with a population greater than 75,000 did

not violate Section 59. Winston v. Stone, 102 Ky. 423, 43 S.W. 397 (1897),

overruled on other grounds by Vaughn v. Knopf, 895 S.W.2d 566 (Ky. 1995). The

Court reasoned that the statute

operates upon a multitude of property of like character owned by persons all over the state, and, in our judgment, it is neither local nor special, but general in purpose and detail, and most effective for securing to the state the revenue it seeks to collect. . . . It may be a fact that Jefferson [C]ounty is the only county in the state having a population in excess of 75,000, but the statute in question would apply to all counties of that class within the state[.]

Id. at 398.

Similarly, in Sims v. Board of Education of Jefferson County, Ky., 290

S.W.2d 491 (Ky. 1956), it was held that a statute which applied only to boards of

education in a county containing a city of the first class did not violate Section 59,

because it would apply in any county that in the future contained a city of the first

class. “While it is not probable that another city will qualify as a first-class city in

Kentucky at any time in the immediate future, nevertheless, it is always possible

and the statute would then be applicable to more than one county.” Sims, 290

S.W.2d at 495. The Sims Court ultimately applied the rational basis test that was

rejected by Woodall to approve the legislation, stating “[w]e have long . . . held

that a legislative enactment is not necessarily local nor repugnant to Section 59 of

-21- our Kentucky Constitution because such enactment applies to only one class or

group of subjects, provided that the classification thus made is not unreasonable

nor arbitrary.” Id. at 495 (citation omitted).

In response, the Board argues that the challenged legislation does

indeed apply to a particular individual, object, or locale, not to a class, and that an

express reference to Jefferson County is not required for the legislation to be

special or local. The Board relies on a more recent opinion, University of

Cumberlands v. Pennybacker, 308 S.W.3d 668 (Ky. 2010), which addressed the

constitutionality of a bill providing for the construction of a pharmacy school

building on the campus of the University of the Cumberlands, a Baptist college

located in Whitley County. The bill also provided for a Pharmacy Scholarship

Program to benefit pharmacy students “at a private four (4) year institution of

higher education with a main campus located in an Appalachian Regional

Commission county.” Pennybacker, 308 S.W.3d at 671. “No party to this

litigation has questioned that the sole institution which would fit that description is

[the University of the Cumberlands], providing the Pharmacy School is built.” Id.

at 683. The Court held that the Pharmacy Scholarship Program was special

legislation which violates Section 59, based on “the inescapable conclusion . . .

that the Pharmacy Scholarship Program was intended only for students attending

the anticipated UC Pharmacy School.” Id. at 683-84.

-22- Of key importance is the Woodall Court’s statement that even though

the Pennybacker Court applied the superseded Schoo test in determining that the

legislation at issue was unconstitutional, it “reached [the] correct result since the

statute applied to [a] particular object.” Woodall, 607 S.W.3d at 573 n.19. Under

Pennybacker and Woodall, an express reference to a particular locale is not an

essential prerequisite to finding a violation of Section 59; a description that can

apply to only one individual, object, or locale may be sufficient. The Woodall

Court directly addressed concerns that by abandoning the Schoo test it was

enabling legislators “to draft around the Section 59 prohibition by avoiding express

reference to a specific person, entity or locale but articulating criteria for a statute’s

application that as a practical matter only a specific person, entity or locale can

satisfy, essentially reverting to the ways of the 1870s and 1880s.” Woodall, 607

S.W.3d at 573. According to Woodall,

[t]he answer to this objection is that Kentucky’s courts, in that pre-1891 Constitution period, had only just begun to apply the “exclusive, separate” privilege prohibition of the Bill of Rights to evaluate class or partial legislation, and to equate that section with equal protection. Over the last 130 years, courts have had experience with the analysis and have shown little hesitancy in engaging a more rigorous analysis with respect to classification legislation.

Id.

-23- Woodall endorses the development of a more rigorous analysis under

Section 59, to address legislation drafted to avoid the Section 59 prohibition but

nonetheless applying to only one specific individual, object, or locale. Thus, the

fact that the challenged legislation does not expressly name the Jefferson County

school district is not automatically dispositive of the constitutional question.

The interpretation and construction of a statute are concerned

primarily with legislative intent. Miller v. Bunch, 657 S.W.3d 890, 894-95 (Ky.

2022); Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky.

2011). “[O]ur first guiding principle in statutory construction is to ascertain and

effectuate legislative intent.” Martin v. Warrior Coal LLC, 617 S.W.3d 391, 394

(Ky. 2021).

The unmistakable intent of the legislature in this case was to

ameliorate problems specific to Jefferson County. The Senate President’s amicus

brief states that the purpose behind the legislation was to address concerns that the

Jefferson County Public School System (JCPS) was “failing too many of its

students, especially students of color and those living below the poverty level.”

The brief describes concerns expressed in the media and by the public that these

problems were attributable in part to micromanagement of JCPS by its Board. The

brief outlines a subsequent attempt by the Kentucky Board of Education to give

greater power to the Superintendent of JCPS, which culminated in a settlement

-24- agreement from which JCPS was ultimately released by the Commissioner in

2020. The gap in student achievement persisted, however. The brief states that

“[a]gainst this backdrop, it is hardly surprising that the 2022 General Assembly

enacted the significant management reforms in S.B. 1 which, like the proposed

state takeover, allow the superintendent to function as a chief executive officer,

with JCBE [the Jefferson County Board] functioning more like a board of

directors.”

By the Senate President’s own admission, the challenged provisions

were intended to address the unique problems of the Jefferson County school

district. This conclusion is supported by State Representative Ed Massey’s

statements in the debate over the final passage of S.B. 1:

There are three large components that are rolled into one committee substitute that we discussed actually in committee today. The first one is a request with regards to Jefferson County which had done some things differently – had gotten some approval to do some things differently. They had the largest board in the state of Kentucky. There was at times a power struggle that existed between the board and the superintendent and how the day-to-day operations would be able to run. So, this language was brought to us and asked to be added into this as a house committee sub to allow them to continue to do what we believe is good work in Jefferson County in trying to deal with that particular issue.

-25- Kentucky General Assembly Regular Session/Debate/House Chambers, Part 2 at

5:08 p.m., KET (Mar. 22, 2022) https://ket.org/legislature/archives/2022/regular/

house-chambers-part-2-201453.

In view of this clearly-stated legislative intent and the Woodall

Court’s approval of the decision in Pennybacker, we conclude that the challenged

provisions were intended to apply only to a specific locale, not a class, and

consequently are local or special legislation which is prohibited under Sections 59

and 60 of the Kentucky Constitution. The circuit court’s holding that the

provisions also violate the state’s equal protection clause is consequently moot and

will not be addressed here.

CONCLUSION

For the foregoing reasons, the circuit court’s order holding that the

challenged provisions of S.B. 1, now codified at KRS 160.370(2)(a)1. and 2.; KRS

160.370(2)(b)2. and 5.; and KRS 160.370(2)(c) violate the prohibition against

special and local legislation is affirmed.

ALL CONCUR.

-26- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE JEFFERSON COUNTY BOARD OF Victor B. Maddox EDUCATION: Deputy Attorney General David Tachau Matthew F. Kuhn Katherine Lacy Crosby Solicitor General Amy D. Cubbage Frankfort, Kentucky Louisville, Kentucky

ORAL ARGUMENT FOR BRIEF FOR APPELLEE JASON E. APPELLANT: GLASS, COMMISSIONER OF EDUCATION: Victor B. Maddox Deputy Attorney General Ashley Lant Frankfort, Kentucky Matthew F. Kuhn Solicitor General ORAL ARGUMENT FOR Frankfort, Kentucky APPELLEE JEFFERSON COUNTY BOARD OF EDUCATION: AMICUS BRIEF FILED FOR SENATOR ROBERT STIVERS, David Tachau IN HIS OFFICIAL CAPACITY Katherine Lacy Crosby AS PRESIDENT OF THE SENATE: Amy D. Cubbage Louisville, Kentucky David Fleenor Frankfort, Kentucky

Sheryl G. Snyder Louisville, Kentucky

-27-