RENDERED: APRIL 28, 2022 TO BE PUBLISHED
Supreme Court of Kentucky 2020-SC-0520-I 2020-SC-0544-I
DAVID M. WARD; AND KENTUCKY APPELLANTS/ ASSOCIATION OF CRIMINAL DEFENSE CROSS-APPELLEES LAWYERS, INC.
ON APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE THOMAS D. WINGATE, JUDGE NO. 20-CI-00471 V.
SENATOR WHITNEY WESTERFIELD, IN HIS APPELLEES/ PERSONAL AND OFFICIAL CAPACITIES; CROSS-APPELLANTS MARSY’S LAW FOR KENTUCKY, LLC; AND COMMONWEALTH OF KENTUCKY, EX REL. ATTORNEY GENERAL DANIEL CAMERON
AND
SECRETARY OF STATE, EX REL. MICHAEL G. APPELLEES/ ADAMS, IN HIS OFFICIAL CAPACITY; THE CROSS-APPELLEES KENTUCKY STATE BOARD OF ELECTIONS, EX REL. MICHAEL G. ADAMS, IN HIS OFFICIAL CAPACITY AS CHIEF ELECTION OFFICIAL FOR THE COMMONWEALTH; AND A.B. CHANDLER III, IN HIS OFFICIAL CAPACITY AS CHAIRMAN
1 OPINION OF THE COURT BY CHIEF JUSTICE MINTON
VACATING AND REMANDING
The parties appeal a ruling of the Franklin Circuit Court concerning the
second attempt to include Marsy’s Law, an amendment related to crime
victims’ rights, in the Kentucky Constitution. We accepted transfer from the
Court of Appeals because this case raises important questions regarding a
challenge to a constitutional ballot initiative. After careful review of the record,
we conclude that Appellants’ claims must be dismissed for lack of standing.
I. FACTS AND PROCEDURAL BACKGROUND
In 2018, the General Assembly proposed, and Kentucky voters ratified,
the constitutional amendment known as Marsy’s Law. After a legal challenge,
this Court invalidated the 2018 amendment because the entire text of the
proposed amendment was not placed on the ballot.1
In 2020, the General Assembly again proposed the Marsy’s Law
constitutional amendment. Appellants2 sued the Secretary of State, the State
Board of Elections, and the Chairperson of the State Board of Elections before
the general election. The Complaint sought declaratory and injunctive relief
either prohibiting Marsy’s Law from appearing on the ballot or, in the
alternative, preventing tabulation of votes on ratification of the amendment.
1 Westerfield v. Ward, 599 S.W.3d 738 (Ky. 2019) (hereinafter “Ward I”). 2 The Appellants in this action are David M. Ward, a resident and taxpayer in this Commonwealth, and the Kentucky Association of Criminal Defense Lawyers (“KACDL”), a nonprofit corporation advocating on behalf of attorneys engaged in the defense of criminal prosecutions in the Court of Justice (collectively “Appellants”).
2 Appellants also brought facial challenges to the legality of substantive
provisions of Marsy’s Law.
The Kentucky Attorney General, Marsy’s Law for Kentucky, LLC, and
Senator Whitney Westerfield intervened as co-defendants. The Plaintiffs and
Intervening Defendants filed cross-motions for summary judgment.
In October 2020, the trial court granted partial summary judgment in favor of
the Intervening Defendants. The trial court ruled in favor of the Intervening
Defendants on Plaintiffs’ procedural claims. Still, the trial court concluded that
Appellants’ facial challenges to Marsy’s Law were not ripe because the
amendment had not yet been ratified by Kentucky voters. The trial court
withheld ruling on Appellants’ facial challenges and held those claims in
abeyance.
The parties filed cross-appeals. The Court of Appeals recommended
transfer of those appeals to this Court. This Court accepted transfer and
denied Appellants’ motion for emergency relief. In their response briefs to this
Court, Appellees challenged the justiciability of Appellants’ claims. While this
appeal was pending, Kentucky voters ratified the Marsy’s Law constitutional
amendment. 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
3 not clearly erroneous.”3 Whether Appellants have standing is a jurisdictional
question of law that is reviewed de novo.4
III. ANALYSIS
Section 112 of the Kentucky Constitution gives circuit courts original
jurisdiction in all justiciable causes not vested in another court.5 This 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.”6 We have adopted the federal standard for standing
espoused in Lujan v. Defenders of Wildlife.7
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.”8
The party invoking jurisdiction bears the burden of establishing the elements of
standing.9
3 Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017). 4 Commonwealth v. B.H., 548 S.W.3d 238, 242 (Ky. 2018) (“Jurisdiction is a question of law, and our review is de novo.”). 5 “The Circuit Court shall have original jurisdiction of all justiciable causes not vested in some other court. It shall have such appellate jurisdiction as may be provided by law.” Ky. Const. § 112(5). 6 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, ___S.W.3d___, 2021-SC-0225-I, 2022 WL 575442 at *1, 3 (Ky. Feb. 24, 2022); Overstreet v. Mayberry, 603 S.W.3d 244, 252 (Ky. 2020); Commonwealth v. Bredhold, 599 S.W.3d 409, 414 (Ky. 2020). 7Sexton, 566 S.W.3d at 188 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). 8 Lujan, 504 U.S. at 560 (internal citations and quotations omitted). 9 Id. at 561.
4 A. Appellants have not established constitutional standing as citizens and voters.
Appellants have not met their burden of establishing that the alleged
injuries harmed them in a concrete and particularized manner. Instead,
Appellants’ claims constitute nonjusticiable generalized grievances because the
harms they assert are shared in equal measure by all citizens of the
Commonwealth.
One of the major principles underlying the standing doctrine is the
prohibition against “generalized grievances.”10 “[W]hen the asserted harm is a
‘generalized grievance’ shared in substantially equal measure by all or a large
class of citizens, that harm alone normally does not warrant exercise of
jurisdiction.”11
Kentucky courts recognize the prohibition against generalized grievances.
In Sexton, we explained that the prohibition against generalized grievances was
one of “two major federal prudential standing principles.”12 Even before Sexton
both this Court and the Kentucky Court of Appeals recognized the prohibition
against generalized grievances as part of our standing jurisprudence.13 And
10 Sexton, 566 S.W.3d at 193. 11 Warth v. Seldin, 422 U.S. 490, 499 (1975); see also Fed. Election Comm’n v. Akins, 524 U.S. 11, 23 (1998); Young v. Lundergan, No. 2015-CA-431-MR, 2016 WL 1068978, at *4 (Ky. App. Mar. 18, 2016). 12 Sexton, 566 S.W.3d at 193. 13 See Lawson v. Attorney Gen., 415 S.W.3d 59, 67 (Ky. 2013) (explaining that standing can refer to various judicially-related limitations on the exercise of jurisdiction, such as barring adjudication of generalized grievances); Young, 2016 WL 1068978, at *4 (holding that the injury alleged by a voter was a generalized grievance because it was common to other citizens); see also Wyatt Sassman, A Survey of Constitutional Standing in State Courts, 8 Ky. J. Equine, Agric. & Nat. Resources L. 5 after Sexton, our Court has reiterated that to have standing a plaintiff must
have personally suffered some actual or threatened injury.14
Moreover, persuasive federal authority is helpful in defining the
parameters of the prohibition against generalized grievances. “To have
standing, a litigant must seek relief for an injury that affects him [or her] in a
‘personal and individual way.’”15 The litigant “must possess a ‘direct stake in
the outcome’ of the case.”16 A litigant raising a generally available grievance
about government, no matter how sincere, and claiming only harm to his and
every other citizen’s interest in the proper application of the laws, does not
state a justiciable case or controversy.17
Appellants contend that they have standing as citizens and voters. But
Appellants’ Complaint does not assert standing based on status as a voter.
The Complaint says that “Plaintiff David M. Ward is a resident of this
Commonwealth who pays taxes to the Commonwealth.” Furthermore, the
349, 369-70 (2016) (explaining that, before Sexton, standing in Kentucky appeared “to be a self-imposed restraint based on a prohibition against generalized grievances”). 14 Overstreet, 603 S.W.3d at 252. 15 Hollingsworth v. Perry, 570 U.S. 693, 706 (2013) (quoting Lujan, 504 U.S. at 560). 16 Id. (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)). Id. (citing Lujan, 504 U.S. at 573–74); Lance v. Coffman, 549 U.S. 437, 439 17
(2007) (per curiam ) (“Our refusal to serve as a forum for generalized grievances has a lengthy pedigree.”); Allen v. Wright, 468 U.S. 737, 754 (1984) (“[A]n asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.”); Massachusetts v. Mellon, 262 U.S. 447, 488 (1923) (“The party who invokes the [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury . . . and not merely that he suffers in some indefinite way in common with people generally.”).
6 Complaint does not allege that members of KACDL are voters. The Complaint
is devoid of any mention of Appellants being harmed as voters.
Even accepting that Appellants are voters and citizens, Appellants do not
allege a concrete and particularized injury. Appellants do not contend that
they misunderstood the contents of the Marsy’s Law ballot question. Nor have
Appellants argued that they are personally impacted by the substantive
provisions in Marsy’s Law. Instead, Appellants advance hypothetical harms on
behalf of unspecified injured voters and citizens. As such, Appellants have not
established that they are impacted by Marsy’s Law in a “personal and
individualized way.”18
Appellants contend that “[a]ny adult citizen of Kentucky has standing to
challenge the sufficiency of a proposed Constitutional amendment because
every citizen will be affected by it after ratification.” But Appellants’
statement—that every adult citizen in Kentucky has standing to challenge the
sufficiency of the Marsy’s Law constitutional amendment—essentially concedes
that their alleged injuries constitute nonjusticiable generalized grievances.
Appellants admit that any Kentuckian could assert injuries identical to those
contained in their Complaint. As such, Appellants are not directly affected by
Marsy’s Law.
Appellants invite this Court to create a special standing doctrine for
voters alleging injury in the context of a constitutional ballot initiative. It is
18 See Hollingsworth v. Perry, 570 U.S. 693, 706 (2013) (quoting Lujan, 504 U.S. at 560).
7 true that Kentucky voters play a unique role in ratifying constitutional ballot
initiatives. Yet, Appellants have cited no authority supporting their contention
that voters challenging the procedural and substantive legality of constitutional
ballot initiatives should be exempted from the requirement of alleging an injury
in fact. The Kentucky Constitution limits the jurisdiction of Kentucky courts to
justiciable causes. So we must decline Appellants’ invitation because the
allegation of a concrete and particularized injury is a constitutional
prerequisite to prosecution of any action in the courts of this Commonwealth.
Additionally, our holding in Ward I has no impact on our analysis of
constitutional standing here. In Ward I, we considered whether this Court had
authority to address the parties’ claims on the merits based on separation of
powers.19 This Court did not, however, directly analyze whether Ward or
KACDL had constitutional standing under Sexton and its progeny. While
constitutional standing was raised before the circuit court in Ward I, the issue
of constitutional standing was abandoned on appeal.20 As such, we assumed,
without deciding, that KACDL had standing based on the same standing
arguments advanced by Appellants in Ward I.21 Since we did not render a
ruling on constitutional standing in Ward I, the issue of constitutional standing
related to these Appellants presents an issue of first impression for our Court.
19 Ward I, 599 S.W.3d at 744–46. 20 Id. at 746 n.16. 21 Id.
8 We recognize that at least one case from this Court, Fletcher v. Wilson,22
suggests that voters may have pre-election standing to challenge ballot
access.23 Fletcher held that two duly qualified Democratic Party electors had
standing to challenge primary election ballot access of four Democratic
candidates for local office.24 But the holding in Fletcher has no direct impact
on the question of constitutional standing in this case.
First, the subject matter and scope of the alleged injury in Fletcher is
distinct from this case. Fletcher dealt with whether voters had pre-election
standing to challenge primary ballot access of candidates for local office.
Essentially, Fletcher and its progeny stand for the proposition that questions of
“eligibility for a candidate for nomination or election should . . . be determined
before the voting takes place.”25 Alternatively, this case deals with procedural
and facial challenges to a constitutional ballot initiative that can be brought by
any citizen in the Commonwealth. Fletcher neither held that voters enjoy
special constitutional standing in the context of election challenges nor
evaluated standing in the context of a voter challenge to a constitutional ballot
initiative. Instead, Fletcher’s analysis was limited to the narrow question of
22 495 S.W.2d 787 (Ky. 1973). 23 Kentucky Revised Statutes (KRS) 118.176 allows for challenges to a
candidate’s bona fide qualifications prior to an election. We do not consider statutory standing to challenge ballot access or question a candidate’s qualifications in this decision. 24 Fletcher, 495 S.W.2d at 794–75. 25 Id. at 792 (emphasis added).
9 whether the voters and citizens in that case had standing pre-election to
challenge candidate ballot access.
Second, Fletcher was decided in 1973, decades before we clarified our
standing jurisprudence in Sexton. In Sexton, we made clear that constitutional
standing is a jurisdictional prerequisite to bring a justiciable cause of action.
As a result, all litigants, including voters, must allege a concrete and
particularized injury-in-fact to invoke the jurisdiction of Kentucky courts.
Concluding that Appellants have standing to challenge the Marsy’s Law ballot
initiative based on Fletcher would constitute a sweeping expansion of the
holding in Fletcher and would be squarely inconsistent with Sexton and the
series of recent cases from this Court that have followed its rule.
Similarly, the holding of the Kentucky Court of Appeals in Chandler v.
Winchester26 has no impact on the question presented here. Chandler
examined whether the Attorney General could challenge a constitutional ballot
initiative concerning the budgets of local governments under Kentucky Revised
Statute (KRS) 120.280. The Court of Appeals concluded that the fifteen-day
post-election limitation period for contesting a constitutional ballot initiative in
KRS 120.280(1) applied and that the Attorney General’s challenge to the
election two years later was time-barred.27 That case is irrelevant here because
26 973 S.W.3d 78 (Ky. App. 1998). 27 Id. at 82.
10 there is no evidence or allegation that Appellants challenged the Marsy’s Law
amendment under KRS 120.280.28
Furthermore, the fact that Appellants sought declaratory relief has no
bearing on constitutional standing in this matter. It is true that “[t]he
[Declaratory Judgment] Act allows courts to determine a litigant's rights before
harm occurs.”29 Even so, litigants may not establish constitutional standing by
simply seeking declaratory relief. Instead, “[a]n actual, justiciable controversy
is a condition precedent to an action under our Declaratory Judgment Act.”30
As such, Appellants must have constitutional standing to bring an action,
regardless of the type of relief sought.
Lastly, the concept of irreparable harm is irrelevant to the question of
constitutional standing. Appellants cite persuasive federal authority for the
proposition that deprivation of constitutional rights causes irreparable harm.
The authorities cited by Appellants stand for the proposition “that when
reviewing a motion for a preliminary injunction, if it is found that a
28 We do not consider the existence of statutory standing under KRS 120.280 because we are unaware of any statutory contest to the Marsy’s Law constitutional ballot initiative under KRS 120.280(1). 29 Commonwealth v. Ky. Ret. Sys., 396 S.W.3d 833, 839 (Ky. 2013). 30 Cameron v. Beshear, 628 S.W.3d 61, 68 (Ky. 2021) (internal quotations and citations omitted). Cameron supports the proposition that constitutional standing is an essential element of a justiciable cause of action, even in declaratory judgment actions. See id. at 68. Additionally, in Cameron, we considered the narrow question of when the Governor may sue to challenge an infringement of his asserted constitutional authority. The questions presented by this case—whether these Appellants have constitutional and taxpayer standing to bring procedural and facial challenges to a constitutional ballot initiative—are markedly different than the issues presented in Cameron.
11 constitutional right is being threatened or impaired, a finding of irreparable
injury is mandated.”31 So, if a constitutional right is being threatened or
impaired, it will satisfy the first factor of the four-factor federal
preliminary-injunction standard. But this case is not before the Court on
review of a preliminary injunction. The relevant question on appeal is whether
Appellants have suffered a sufficiently personal and direct injury to confer
constitutional standing—not whether Appellants demonstrated that they would
suffer irreparable harm without injunctive relief.
That is not to say that no citizens or voters have standing to bring similar
claims. At oral argument, Appellees conceded that a voter alleging that that he
or she misunderstood a constitutional ballot question would likely have
standing to challenge a constitutional ballot proposal. That same voter may
have the ability to bring a pre-election challenge once the ballot question is
finalized or published. Additionally, a criminal defendant, crime victim, or
other participant in the criminal-justice process may have standing to
challenge the substantive provisions of Marsy’s Law. Finally, certain
government officials, such as the Attorney General, Secretary of State, and
members of the Board of Elections may have standing to challenge procedural
defects surrounding enactment of a constitutional ballot initiative. We need
not resolve such advisory questions here. Our analysis in this case is limited
to whether these Appellants have standing as citizens and voters on this record.
31 Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (emphasis added); see
also 11A Wright & Miller, Fed. Prac. & Proc. Civ. § 2948.1 (3d ed. 2020).
12 Ultimately, Appellants lack standing as citizens and voters because they have
not demonstrated a concrete and particularized injury that is not shared with
all Kentucky citizens and voters.
B. Appellants have not demonstrated that they have taxpayer standing.
Appellants also contend that they have standing as taxpayers. It is true
that Kentucky courts recognize taxpayer standing in certain circumstances as
a matter of equity.32 Most cases involving taxpayer standing involve litigants
suing governmental entities or their agents to challenge the propriety of city,
county, or state expenditure of public funds.33
Of course, since government revenue is generated by taxes, all
government action necessarily involves some tangential relationship to taxes
and the expenditure of public funds. But that fact alone cannot confer
taxpayer standing. Our concept of constitutional standing would be
eviscerated if litigants could challenge any government action based on an
attenuated relationship between the harm alleged as a result of the government
action and the general expenditure of public funds to support government
functions. Rather, justiciability in the context of a taxpayer’s action requires
that the taxpayer represents an interest that is direct, pecuniary, and
substantial.34
32 See Sexton, 566 S.W.3d at 194 n.33; see also Overstreet, 603 S.W.3d at 263. 33 See Overstreet, 603 S.W.3d at 263. 34Cooper v. Kentuckian Citizen, 258 S.W.2d 695, 696 (Ky. 1953); see also Doremus v. Board of Ed. of Borough of Hawthorne, 342 U.S. 429, 433–35 (1952); Rosenbalm v. Commercial Bank of Middlesboro, 838 S.W.2d 423, 428 (Ky. App. 1992).
13 Here, Appellants do not have an interest that is sufficiently direct,
pecuniary, and substantial to invoke taxpayer standing. In their procedural
claims, Appellants argue that the Legislature failed to follow Kentucky law
concerning the enactment and referral of the Marsy’s Law ballot initiative to
Kentucky voters; therefore, Appellants contend that no election should have
been held and any resulting expenditure of public funds to place the initiative
on the ballot was improper. But Appellants’ procedural claims are too
attenuated from the expenditure of public funds for the invocation of taxpayer
standing. Appellants have no direct, pecuniary, or substantial interest in the
expenditure of public funds on the alleged illegal election that is not shared in
equal part with every taxpayer in this Commonwealth.
Additionally, Appellants do not actually challenge the propriety of any
expenditure of public funds in any of their facial challenges. For instance,
Appellants note that Marsy’s Law grants victims the right to representation by
counsel but contend that Marsy’s Law is unclear if counsel must be appointed
for indigent victims and, if so, how appointed counsel will be compensated.
Appellants acknowledge that it is unclear if counsel must be appointed for
indigent victims in criminal matters under Marsy’s Law. Thus, by Appellants’
own admission, it is unclear if any expenditure of public funds is required in
order to implement this provision of Marsy’s Law.
Furthermore, Appellants acknowledge that no such expenditure of public
funds has been made. Appellants do not challenge government funding of
counsel for indigent victims. Instead, they complain that the General Assembly
14 failed to make an appropriation to support appointment of counsel to indigent
victims. As a result, this facial claim does not challenge the propriety of the
expenditure of public funds.
Appellants cite Stiglitz v. Schardien35 and its progeny for the proposition
that taxpayers have standing to challenge a legislative act that infringes upon
the rights of a citizen, taxpayer, and voter. Stiglitz, a 1931 case, held that
citizens, taxpayers, and voters had standing to challenge acts that
reapportioned state legislative districts because the acts infringed on citizens’
right to equal representation.36 But the Stiglitz court did not discuss citizen,
voter, and taxpayer standing as distinct concepts. Stiglitz did not hold that
taxpayers have blanket standing to challenge any legislative act regardless of
the existence of a pecuniary interest in the challenged expenditure of public
funds. Instead, Stiglitz’s holding on standing in the context of a challenge to
redistricting legislation relies heavily on the fact that the plaintiffs were citizens
and voters, not that those plaintiffs were taxpayers.37 As such, Stiglitz provides
little support for Appellants’ arguments that they have taxpayer standing in
this case.38
35 40 S.W.2d 315 (Ky. 1931). 36 Id. at 317–18. 37 See Beauchamp v. Silk, 120 S.W.2d 765, 766–67 (Ky. 1938) (“That (Stiglitz) case, perhaps involved more of a political than a pecuniary right of the plaintiff therein[.]”). 38 Beauchamp cites Stiglitz for the proposition that citizens, taxpayers, and voters have standing to bring a lawsuit to prevent enforcement of a void legislative act. See Beauchamp, 120 S.W.2d at 766–67. But Beauchamp is unpersuasive for the same reasons as Stiglitz. Neither case engages in any reasoned analysis about constitutional and taxpayer standing as distinct doctrines. And neither case 15 Appellants also cite State Text-Book Commission v. Weathers39 in support
of their contention that they have taxpayer standing. In Weathers, a private
citizen sought a writ of mandamus alleging that the state text-book commission
violated numerous provisions of the statute defining the commission’s duties.40
The Court concluded that Weathers had standing to bring the mandamus
action as a private citizen seeking to enforce a public duty owed to the public.41
In so holding, the Court noted that the petition did not allege that Weathers
was a taxpayer.42 Instead, the petition “allege[d] his citizenship in the state,
and that he [was] a patron of its common schools, the first showing him to be a
member of the state, and the last showing him to have a direct interest in the
maintenance of its common schools, saying nothing of his being a contributor
to the expense of such maintenance.”43 Weathers did not hold that taxpayers
have blanket standing to challenge a legislative act without showing some
special of pecuniary interest in the alleged improper expenditure of public
funds. As a result, Weathers is unavailing here.
Of course, constitutional and taxpayer standing are not dissonant
concepts. Under Kentucky law, taxpayer standing may be properly invoked in
considered taxpayer standing in the context of a challenge to a constitutional ballot initiative. As such, neither Stiglitz nor Beauchamp is dispositive on the issue of taxpayer standing. 39 213 S.W. 207 (Ky. 1919). 40 Id. at 208. 41 Id. at 209. 42 Id. 43 Id.
16 circumstances in which a litigant challenges the propriety of expenditure of
public funds.44 Still, it bears repeating that litigants seeking to invoke taxpayer
standing must demonstrate that they represent an interest that is direct,
pecuniary, and substantial.45 A direct, pecuniary, and substantial interest on
the part of these Appellants is lacking here.
In sum, Appellants have neither cited nor are we aware of any authority
granting taxpayer standing in similar circumstances to those presented here.
As such, Appellants do not have standing as taxpayers to bring their asserted
claims.46
C. Our holding on standing here has no impact on our prior decision in Ward I.
Our conclusion that Appellants lack standing in this action has no
impact on the precedential effect of our decision in Ward I. It is true that Ward
I involved similar claims and included similarly situated parties as those in this
action. Even so, the issues of constitutional and taxpayer standing were
neither challenged nor discussed in Ward I. The existence of unaddressed
jurisdictional defects in a previous action has no precedential effect.47 At
bottom, Ward I and the present case involve two closely related, yet distinct
44 See Sexton, 566 S.W.3d at 194 n.33; see also Overstreet, 603 S.W.3d at 263. 45 See Cooper v. Kentuckian Citizen, 258 S.W.2d at 696. 46 Appellants have not asserted associational or representative standing on the part of Appellant KACDL. As a result, we do not consider associational or representative standing here. 47 See Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (“[S]tanding was neither challenged nor discussed in that case, and we have repeatedly held that the existence of unaddressed jurisdictional defects has no precedential effect.”).
17 constitutional ballot initiatives. In Ward I, this Court reached a final, non-
appealable judgment, which remains good law.
IV. CONCLUSION
After carefully reviewing the record, we conclude that Appellants lack
constitutional standing to bring their claims because Appellants failed to allege
a concrete and particularized injury-in-fact on this record. Appellants have
also failed to demonstrate that they have taxpayer standing. As a result,
Appellants’ claims constitute nonjusticiable generalized grievances. 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. Conley, Hughes, Keller, Lambert, and Nickell, JJ., concur.
VanMeter, J., concurs in result only by separate opinion.
VANMETER, J., CONCURRING IN RESULT ONLY: In Sexton, we
established the mandatory constitutional requirement that
justiciability/standing is properly considered at every level of the judicial
process. 566 S.W.3d at 196-97. We decided Ward I nine months later.48
Notwithstanding the Sexton mandate, we glossed over and ignored
jurisdictional standing in Ward I and proceeded to decide the merits.49
48Sexton was initially rendered in September 2018; Ward I was initially rendered in June 2019. Petitions for rehearing were filed and denied in each case, but Sexton was finally decided four months before the initial rendition date for Ward I. 49 Ward I contains the statement language that “we find the constitutional challenges to the proposed amendment in this case to be justiciable.” 599 S.W.3d at 745. But that holding was to address Sen. Westerfield’s argument that the proposal and adoption of a constitutional amendment was a non-justiciable political question.
18 Admittedly, we noted that the challenges to standing had been dropped, 599
S.W.3d at 746 n. 16, but this implicit affirmation of standing comported with
longstanding recognition of voter standing to challenge ballot access. See
Fletcher v Wilson, 495 S.W.2d 787 (Ky. 1973) (discussing case law back to
1913); see also Gatewood v. Matthews, 403 S.W.2d 716 (Ky. 1966) (addressing
pre-election challenge to proposed revision to the Kentucky constitution). The
standing issue in this case, voter standing to challenge ballot access of
constitutional amendment, is functionally no different than the standing issue
directly addressed in Fletcher, i.e., voter standing to challenge a candidate’s
ballot access. I would recognize the appellants’ standing in this case,
independently of any statutory challenge under KRS 120.250.
That noted, I concur in the majority’s result which tacitly upholds the
amendment as approved by the voters of the Commonwealth, since, as
practical matter, no one will have properly challenged its enactment. My
review of the briefs and the record is that the appellants’ challenge fails on the
merits.
COUNSEL FOR APPELLANT/CROSS-APPELLEE DAVID M. WARD:
J. David Niehaus
Virginia H. Snell Wyatt, Tarrant & Combs, LLP
COUNSEL FOR APPELLANT/CROSS-APPELLEE KENTUCKY ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, INC.:
Michael R. Mazzoli Cox & Mazzoli, PLLC 19 COUNSEL FOR APPELLEE/CROSS-APPELLANT MARSY’S LAW FOR KENTUCKY, LLC:
John C. Roach W. Keith Ransdell Ransdell, Roach & Royse, PLLC
COUNSEL FOR APPELLEE/CROSS-APPELLANT SENATOR WHITNEY WESTERFIELD:
David Fleenor General Counsel Office of the Senate President
COUNSEL FOR APPELLEE/CROSS-APPELLANT COMMONWEALTH OF KENTUCKY EX REL. ATTORNEY GENERAL DANIEL CAMERON:
Matthew F. Kuhn Brett R. Nolan Office of the Solicitor General
COUNSEL FOR APPELLEE/CROSS-APPELLEE MICHAEL G. ADAMS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE:
R. Kent Westberry Bridget M. Bush Landrum & Shouse LLP
COUNSEL FOR APPELLEE/CROSS-APPELLEE A.B. CHANDLER, IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF THE KENTUCKY STATE BOARD OF ELECTIONS:
Taylor A. Brown General Counsel State Board of Elections