NO 21-CI-______JFEFERSON CIRCUIT COURT DIVISION ______(__) HON. ______
ANDY BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky, and
MICHAEL E. BERRY, in his official capacities as Secretary of the Kentucky Tourism, Arts and Heritage Cabinet and a Member of the State Fair Board
PLAINTIFFS, vs.
BERTRAM ROBERT STIVERS, II, in his official capacity as a Member of the State Fair Board as President of the Kentucky Senate,
Serve: 702 Capitol Avenue Annex Room 332 Frankfort, Kentucky 40601
Jay Hartz, Director Legislative Research Commission 700 Capitol Avenue, Room 300 Frankfort, Kentucky 40601
Office of the Attorney General The Capitol Building 700 Capitol Avenue, Suite 118 Frankfort, Kentucky 40601 and
DAVID W. OSBORNE, in his official capacity as a Member of the State Fair Board as Speaker of the Kentucky House of Representatives,
Serve: 702 Capitol Avenue Annex Room 236 Frankfort, Kentucky 40601
000001 of 000020 AMC : 000001 of 000020 Jay Hartz, Director Legislative Research Commission 700 Capitol Avenue, Room 300 Frankfort, Kentucky 40601
Office of the Attorney General The Capitol Building 700 Capitol Avenue, Suite 118 Frankfort, Kentucky 40601 and
RYAN QUARLES, in his official capacity as Commissioner of the Department of Agriculture
Serve: Office of the Attorney General The Capitol Building 700 Capitol Avenue, Suite 118 Frankfort, Kentucky 40601-3449 and
DR. MARK E. LYNN, in his official capacity as Chair of the State Fair Board,
Serve: Office of the Attorney General The Capitol Building 700 Capitol Avenue, Suite 118 Frankfort, Kentucky 40601-3449
DEFENDANTS.
Also serve: Daniel J. Cameron Attorney General Office of the Attorney General The Capitol Building 700 Capitol Avenue, Suite 118 Frankfort, Kentucky 40601-3449 (pursuant to KRS 418.075, CR 24.03, HB 3 (R.S. 2021))
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FIRST AMENDED COMPLAINT FOR A DECLARATION OF RIGHTS AND PERMANENT INJUNCTION AND EXPEDITED REVIEW
Plaintiffs Andy Beshear, in his official capacity as Governor of the Commonwealth of
Kentucky, and Michael E. Berry, in his official capacities as Secretary of the Tourism, Arts and
Heritage Cabinet and as a member of the State Fair Board, by and through counsel, bring this
action for a declaration of rights and a permanent injunction against the Defendants, Robert W.
Osborne, in his official capacity as a Member of the State Fair Board as Speaker of the Kentucky
House of Representatives, Bertram Robert Stivers, II, in his official capacity as a Member of the
State Fair Board as President of the Kentucky Senate, Ryan Quarles, in his official capacity as
Commissioner of the Department of Agriculture, and Dr. Mark E. Lynn, in his official capacity
as Chair of the State Fair Board. The Governor requests expedited review of this matter under
KRS 418.050 and CR 57.
INTRODUCTION AND FACTUAL BACKGROUND
1. During the 2021 Regular Session, the General Assembly engaged in unprecedented stripping of the Governor’s executive authority as the Chief Magistrate of the
Commonwealth of Kentucky. These actions will effectively prevent the Governor from fulfilling his constitutional duty to take care that the laws be faithfully executed.
2. Under the Kentucky Constitution, there is only one Chief Magistrate with the supreme executive powers of the Commonwealth: the Governor. The Kentucky Constitution mandates that only one officer have the duty to take care that the laws be faithfully executed: the
Governor
3. In order to take care that the laws be faithfully executed under Section 81 of the
Kentucky Constitution, the majority of appointments to boards within the Executive Branch have 000003 of 000020 AMC : 000003 of 000020 3
always been reserved for the Governor as the Chief Magistrate under Section 69 of the Kentucky
Constitution.
4. Through House Bill 518 (R.S. 2021) (“HB 518”) (attached as Exhibit A), the
General Assembly removed a majority of the Governor’s appointments to an Executive Branch board – the State Fair Board. In this bill, the General Assembly instead gave the appointing authority it stripped from the Governor to the Commissioner of Agriculture, who is not the Chief
Magistrate, does not have the supreme executive powers of the Commonwealth, and does not
have the constitutional duty to ensure the laws are faithfully executed.
5. By stripping the Governor of his executive authority to appoint the majority of the appointed voting members of the State Fair Board – an Executive Branch board – and giving it to
an officer who is not the Chief Magistrate, HB 518 prevents the Governor from ensuring that the
laws are faithfully executed, as he now has no ability to ensure that the board, with an annual
budget of more than $50 million and unilateral contracting authority under HB 518, properly
uses taxpayers’ money.
6. As one of its functions, the State Fair Board: “Shall promote the progress of the
state and stimulate public interest in the advantages and development of the state by providing
the facilities of the state fairgrounds for agricultural and industrial exhibitions, public gatherings,
cultural activities, and other functions calculated to advance the educational, physical, and
cultural interests of the public and by providing the facilities of the exhibition center for
conventions, trade shows, public gatherings, and other functions calculated to advance and
enhance the visitor industry, economy, entertainment, cultural and educational interests of the
public; … .” KRS 247.140(1)(c). 000004 of 000020 AMC : 000004 of 000020 4
7. As the Chief Magistrate and the highest elected official in the Commonwealth
with a role in economic development, the Governor is in the best position to ensure promotion of
the progress of the state and to stimulate public interest in the advantages and development of the
state, and to advance and enhance the visitor industry, economy, entertainment, cultural and
educational interests of the public.
8. In each the 2020 Executive Branch Budget and the 2021 Executive Branch
Budget, the legislature appropriated more than $52 million to the State Fair Board.1
9. In Fiscal Year 2019-2020, the State Fair Board operated at a deficit of more than
$3.1 million, which would have been more than $7 million had the board not received $4.1 million from the General Fund.2 The board operated at a deficit of nearly $11 million in Fiscal
Year 2018-2019, despite a General Fund transfer in the amount of $4.1 million.3
10. In HB 518, the General Assembly gives the State Fair Board – a board that
continually runs at an annual deficit even with money from the General Fund – self-control of its
own functions, contracts and property. In fact, on April 1, 2021, the board informed the Tourism,
Arts and Heritage Cabinet that, “as an independent, de jure municipal corporate and political
subdivision of the Commonwealth of Kentucky, the Kentucky State Fair Board is responsible for
its own legal affairs, human resources, communications, and finance matters, together with all
other functions of the Board, [which it,] in its sole discretion, deems necessary for the efficient
operations of the Board and the properties in its custody and control.”4
1 2020 House Bill 352 (R.S. 2020), at p. 98, available at https://apps.legislature.ky.gov/recorddocuments/bill/20RS/hb352/bill.pdf (last visited Apr. 12, 2021); 2021 House Bill 192 (R.S. 2021), at p. 107, available at https://apps.legislature.ky.gov/recorddocuments/bill/21RS/hb192/bill.pdf (last visited Apr. 14, 2021). 2 2020 Kentucky Venues Annual Report, available at https://www.kyvenues.com/assets/pdf/KYVenues-2020AR- Digital.pdf (last visited Apr. 14, 2021) (attached as Exhibit B). 3 2019 Kentucky Venues, Annual Report, available at https://www.kyvenues.com/assets/pdf/KYVenues-2019AR- 000005 of 000020 Digital.pdf (last visited Apr. 14, 2021) (attached as Exhibit C). 4 Kentucky Venues Letter, at p. 3, Apr. 1, 2021 (attached as Exhibit D). AMC : 000005 of 000020 5
11. Section 1 of HB 518 gives the State Fair Board authority to enter into contracts without following the Kentucky Model Procurement Code under KRS Chapter 45A – the statutory scheme that nearly every Kentucky state agency follows for contracts. In part, the purposes and policies of KRS Chapter 45A are to increase public confidence in the procedures followed in public procurement, to ensure the fair and equitable treatment of all people who deal with the Commonwealth’s procurement system, to provide increased economy in state procurement activities by fostering effective competition, and to provide safeguards for the maintenance of a procurement system of quality and integrity. See KRS 45A.010(2); Landrum v.
Beshear, 599 S.W.3d 781, 789-90 (Ky. 2019); Lassiter v. Landrum, 610 S.W.3d 242, 251 (Ky.
2020). The Model Procurement Code shall apply to every expenditure of public funds by the
Commonwealth under any contract or like agreement. KRS 45A.020(1); Landrum, 599 S.W.3d at 789; Lassiter, 610 S.W.3d at 248. The Model Procurement Code assures the responsible expenditure of state funds. Landrum, 599 S.W.3d at 796 (Hughes, J., concurring). “Those goals are paramount and every person involved in the MPC process should be guided by them and not by partisan concerns.” Id.
12. HB 518 allows the State Fair Board to disregard these goals and leaves the
Governor and the Secretary with no ability to ensure they are met.
13. Under HB 518, the State Fair Board may choose to follow KRS Chapter 45A, but its own statutory chapter, KRS Chapter 247, controls over any provision expressly inconsistent with KRS Chapter 45A. The board also has the option of promulgating its own administrative regulations to establish its procurement procedures and, if it does, the board may include sections of KRS Chapter 45A as part of its regulations, but is not required to do so. 000006 of 000020 AMC : 000006 of 000020 6
14. Under Section 1 of HB 518, the State Fair Board’s procurements for personal
service contracts shall not be subject to the requirements of KRS 45A.695(2)(b).
15. Additionally, in its bidding and negotiation processes, the State Fair Board has the choice of performing its own bidding and procurement, using the services of the Finance and
Administration Cabinet, or using a combination thereof.
16. Thus, in HB 518, the General Assembly treats the State Fair Board as a self- sustaining entity despite its annual deficits and the need for annual support from the
Commonwealth through multi-million dollar General Fund transfers.
17. With the authority HB 518 provides it, the State Fair Board could improperly spend taxpayers’ money and drive itself into further significant debt, with no oversight. Further, by stripping the Governor of his executive appointment power HB 518 removes the Governor’s ability to take care that the laws are faithfully executed. Without that ability, the Governor – the
Chief Magistrate – cannot ensure the board is entering into contracts through a process that is fair and equitable, fosters effective competition, and provides safeguards for a procurement system of quality and integrity. The Governor has no ability to ensure that the board’s procurement procedure provides for increased public confidence as KRS Chapter 45A provides. Neither the
Governor nor any Cabinet, including the Tourism, Arts and Heritage Cabinet, has any oversight of the State Fair Board’s actions.
18. As the governing body of Kentucky Venues, which operates the Kentucky
Exposition Center and the Kentucky International Convention Center – venues that host events each year having an economic impact of hundreds of millions of dollars for Kentucky – the State
Fair Board is a significant state board with economic importance for the Commonwealth. HB 000007 of 000020 AMC : 000007 of 000020 7
518 leaves the Governor and the Executive Branch no effective means to ensure the board does not squander its resources at the taxpayers’ expense.
19. In removing the Governor’s executive appointment authority for a majority of the members of the State Fair Board, a board within the executive department, and giving that authority to an officer who is not the Chief Magistrate and also appointing legislative members to the board, HB 518 violates the Kentucky Constitution.
20. Further, although the State Fair Board remains attached to the Tourism, Arts, and
Heritage Cabinet, and therefore remains under the direction of the Governor, see KRS
12.020II.(10)(e), under Section 3 of HB 518 the board now is attached to the Cabinet solely for administrative purposes. Section 3 defines “solely for administrative purposes” as “those limited functions and purposes expressly requested by the State Fair Board to be performed by the
Tourism, Arts and Heritage Cabinet. The State Fair Board shall have sole discretion as to which functions shall be deemed necessary for the efficient operation of the State Fair Board and the properties in its custody and control.” HB 518 prevents the Governor from taking care that the laws be faithfully executed through the head of his Executive Branch Cabinet to which the board is attached.
House Bill 518
21. HB 518 is titled “AN ACT relating to the State Fair Board and declaring an emergency.”
22. Section 1 of HB 518 gives the State Fair Board authority to enter into contracts without following the Kentucky Model Procurement Code under KRS Chapter 45A – the procedure that nearly every Kentucky state agency follows for contracts. In part, the purposes and policies of KRS Chapter 45A are to increase public confidence in the procedures followed in 000008 of 000020 AMC : 000008 of 000020 8 public procurement, to insure the fair and equitable treatment of all people who deal with the
Commonwealth’s procurement system, to provide increased economy in state procurement activities by fostering effective competition, and to provide safeguards for the maintenance of a procurement system of quality and integrity. See KRS 45A.010(2). Landrum, 599 S.W.3d at 789-
90; Lassiter, 610 S.W.3d at 251. The Model Procurement Code shall apply to every expenditure of public funds by the Commonwealth under any contract or like agreement. KRS 45A.020(1);
Landrum, 599 S.W.3d at 789; Lassiter, 610 S.W.3d at 248. The Model Procurement Code assures the responsible expenditure of state funds. Landrum, 599 S.W.3d at 796 (Hughes, J., concurring). “Those goals are paramount and every person involved in the MPC process should be guided by them and not by partisan concerns.” Id.
23. Under Section 1 of HB 518, the State Fair Board may choose to follow KRS
Chapter 45A, but its own statutory chapter, KRS Chapter 247, controls over any provision expressly inconsistent with KRS Chapter 45A. The board also has the option of promulgating its own administrative regulations to establish its procurement procedures and, if it does, the board may include sections of KRS Chapter 45A as part of its regulations, but is not required to do so.
24. Additionally, under Section 1 of HB 518, the State Fair Board’s procurements for personal service contracts shall not be subject to the requirements of KRS 45A.695(2)(b).
25. In its bidding and negotiation processes, the State Fair Board has the choice of performing its own bidding and procurement, using the services of the Finance and
Administration Cabinet, or using a combination thereof.
26. Section 2 of HB 518 makes as nonvoting, ex officio members of the board the
Speaker of the House, or his or her designee, and the President of the Senate, or his or her designee. 000009 of 000020 AMC : 000009 of 000020 9
27. Section 2 of HB 518 also reduces the number of voting members appointed by the
Governor. Instead of appointing all of the voting members who are appointed, under HB 518 the
Governor appoints only five (5) of 14 voting members. The bill gives the Commissioner of the
Department of Agriculture (“Commissioner”) authority to appoint the remaining majority – nine
(9) – of the 14 voting members appointed to the board.
28. Under Section 2 of HB 518, the Commissioner appoints one at-large member in
2021, and the Commissioner appoints all members whose terms expire in 2021. The bill does not allow the Governor to appoint any member to the board in 2021.
29. The board remains attached to the Tourism, Arts, and Heritage Cabinet, and is therefore under the direction of the Governor. See KRS 12.020II.(10)(e). However, under
Section 3 of the bill, the board now is attached to the Cabinet solely for administrative purposes, which Section 3 defines as “those limited functions and purposes expressly requested by the
State Fair Board to be performed by the Tourism, Arts and Heritage Cabinet. The State Fair
Board shall have sole discretion as to which functions shall be deemed necessary for the efficient operation of the State Fair Board and the properties in its custody and control.” Section 3 also states the intent that the board will be accountable to the legislature, providing: “It is the intent of the General Assembly that the State Fair Board shall be accountable to the Governor, the
Commissioner of Agriculture, the General Assembly, and the people of the Commonwealth through a system of audits, reports, and thorough financial disclosures.”
30. Section 4 of the bill provides that the board shall select its chair and vice chair.
Under KRS 247.110(1), before passage of HB 518, the Governor appointed a member of the board to serve as chair and designated a second member of the board to serve as vice chair. 000010 of 000020 AMC : 000010 of 000020 10
31. Under Section 7 of HB 518, the State Fair Board has exclusive control and
custody of all operations and events that occur on the state fairgrounds and exhibition center and
other properties under the board’s custody and control.
32. Section 10 serves as the bill’s emergency clause. It provides:
Whereas, the Kentucky State Fair Board is a vital part of the agricultural and tourism economies within the Commonwealth and due to the COVID-19 pandemic, Kentucky's tourism and agricultural industries have experienced massive economic losses, and it is necessary to ensure that the actions and decisions of the Kentucky State Fair Board are carried out in an independent and corporate-like manner, an emergency is declared to exist, and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.
33. HB 518 does not contain a severability clause.
34. At the February 24, 2021 House Agriculture Committee hearing, Representative
Brandon Reed and contract lobbyist Steve Kelly testified on HB 518. Both testified as to the
inclusion of legislative branch officers on the Kentucky State Fair Board. Representative Reed
testified that the new HB 518 would “incorporate legislative branch oversight.”5 Answering a question from Representative Josie Raymond, Mr. Kelly stated, “We wanted a member of the
House and Senate on this board so they can see firsthand what this board was included in or not included in [sic].”6
35. At the Senate Standing Committee on Agriculture meeting on March 2, 2021, Mr.
Kelly testified that many of the appointments to the State Fair Board would be stripped from the
Governor and given to the Commissioner of Agriculture.7 In response, Senator Damon Thayer
commented, “…[w]hen it comes to the powers of the various powers of the Executive Branch, if
5 See House Standing Committee on Agriculture, February 24, 2021 Meeting, available at https://www.youtube.com/watch?v=6yQaupbq2RI, at 20:24 (last visited Apr. 4, 2021). 6 Id. at 25:12. 000011 of 000020 7 Senate Standing Committee on Agriculture, March 2, 2021, available at https://www.youtube.com/watch?v=Gitjvarcw3U (last visited Apr. 14, 2021). AMC : 000011 of 000020 11
the powers are not enumerated in the Constitution, the General Assembly has the right to change
those … .”8
36. The Governor vetoed the bill on March 22, 2021. See Veto Message, Mar. 22,
2021 (attached as Exhibit E). The General Assembly overrode the veto on March 29, 2021.
37. On March 30, 2021, the day after the General Assembly voted to override the
Governor’s veto, the Commissioner appointed two members to the board.9
38. On March 31, 2021, a majority of the board called a special meeting of the board
for April 1, 2021, and the agenda included, “Selection of Chairman and Vice Chairman pursuant to KRS 247.110(1).”10 At that meeting, the board, including the new members, elected a new
Chair and Vice Chair, and adopted a new set of bylaws, which totaled over 100 pages.
39. The State Fair Board sent a letter dated April 1, 2021, to various employees of the
Tourism, Arts and Heritage Cabinet expressly stating that its operations and the operation of its
facilities and activities will be managed with the “support and oversight of the Governor, the
Commissioner of Agriculture, and the General Assembly.”11
40. In that letter the board informed the Tourism, Arts and Heritage Cabinet that “as an independent, de jure municipal corporate and political subdivision of the Commonwealth of
Kentucky, the Kentucky State Fair Board is responsible for its own legal affairs, human resources, communications, and finance matters, together with all other functions of the Board, in its sole discretion, deems necessary for the efficient operations of the Board and the properties in its custody and control.”12
8 Id. at 5:16-5:30. 9 Ky. Department of Agriculture, Press Release, “Commissioner Quarles makes appointments to boards, commissions,” Mar. 30, 2021, available at https://www.kyagr.com/ky-agnews/press-releases/2021/Commissioner- Quarles-makes-appointments-to-boards-and-commissions.html (last visited Apr. 14, 2021). 10 See Agenda, Apr. 1, 2021 Special Meeting (attached as Exhibit F). 000012 of 000020 11 Kentucky Venues Letter, at p. 3, Apr. 1, 2021 (attached as Exhibit D). 12 Id. AMC : 000012 of 000020 12
41. In 1890, the Framers of the current Constitution sought to restore the separation of powers between the three co-equal branches of Kentucky’s government. Legislative Research
Comm’n By and Through Prather v. Brown, 664 S.W.2d 907, 912 (Ky. 1984) (“LRC v. Brown”).
Specifically noting the “abuses” of the legislative branch, the Delegates to the Constitutional
Convention sought to “curb the power of the General Assembly.” Id. The separation of powers must be “strictly construed.” Id. (quoting Arnett v. Meredith, 121 S.W.2d 36, 38 (Ky. 1938)).
42. Kentucky’s then-highest court stated that “[t]he changes in the organic law would lead us to the conclusion that there existed in the minds of the people a deep-seated distrust of legislative methods, and a fear of legislative usurpation of power.” Purnell v. Mann, 50 S.W.
264, 266 (Ky. 1899).
43. Despite the express intent of the 1890 Constitutional Convention, the General
Assembly saw fit to pass a host of legislation to unconstitutionally claw back its powers during the 2021 Regular Session. In multiple bills, including HB 518, the General Assembly stripped the Governor of his executive authority to appoint members of state boards in the executive department. The General Assembly gave that authority to another officer, the Commissioner of the Department of Agriculture, who is not the Chief Magistrate tasked with the duty to take care that the law is faithfully executed.
44. Further, in HB 518 the General Assembly appointed its own members to the State
Fair Board, an Executive Branch board, expressly so the General Assembly has oversight of that board.
Section 27 of the Kentucky Constitution
45. “The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of 000013 of 000020 AMC : 000013 of 000020 13
magistracy, to wit: Those which are legislative, to one; those which are executive, to another;
and those which are judicial, to another.” KY. CONST. § 27.
Section 28 of the Kentucky Constitution
46. “No person or collection of persons, being of one of those departments, shall
exercise any power properly belonging to either of the others, except in the instances hereinafter
expressly directed or permitted.” KY. CONST. § 28.
Section 69 of the Kentucky Constitution
47. “The supreme executive power of the Commonwealth shall be vested in a
Chief Magistrate, who shall be styled the “Governor of the Commonwealth of Kentucky.”
KY. CONST. § 69.
Section 76 of the Kentucky Constitution
48. “[The Governor] shall have the power, except as otherwise provided in this
Constitution, to fill vacancies by granting commissions, which shall expire when such vacancies shall have been filled according to the provisions of this Constitution.” KY. CONST. § 76.
Section 81 of the Kentucky Constitution
49. The Governor “shall take care that the laws be faithfully executed.” KY. CONST. §
81.
NATURE OF THE ACTION
50. This Complaint for a Declaration of Rights and a Permanent Injunction and
Expedited Review shall be adjudicated under the Kentucky Declaratory Judgment Act, KRS
418.010, et seq., Kentucky Rule of Civil Procedure (“CR”) 57, and CR 65.
51. KRS 418.040 provides this Court with authority to “make a binding declaration of rights, whether or not consequential relief is or could be asked” when a controversy exists. 000014 of 000020 AMC : 000014 of 000020 14
Actual and justiciable controversies regarding violations of the Kentucky Constitution and
Kentucky laws clearly exist in this action.
52. Civil Rule 65 permits this Court to issue in a final judgment a permanent
injunction, which may restrict or mandatorily direct the doing of an act.
53. By motion filed concurrently with this Complaint, Plaintiff requests an expedited review pursuant to KRS 418.050 and CR 57. The prompt and efficient administration of state government requires certainty that the Governor, the Chief Magistrate, is the officer with appointing authority over the Executive Branch boards and agencies. Further, if officers without constitutional authority to make appointments proceed to make such improvident, unlawful, and unconstitutional appointments to any board, agency, commission, or office, such would lead to immediate, extensive litigation as to both the constitutional validity of the appointment and any subsequent, purported attempt to exercise authority or power as a member, commissioner, officer, or agent of the board, agency, and commission. Time is of the essence, as HB 518 became effective upon the General Assembly voting to override the Governor’s veto of the bill.
JURISDICTION AND VENUE
54. An actual, justiciable controversy exists, and this Court has subject matter
jurisdiction over this action pursuant to KRS 418.040, KRS 23A.010, CR 57 and CR 65.
55. Venue is appropriate in this Court pursuant to KRS 452.460(1), KRS 452.480 and
House Bill 3 (R.S. 2021).
56. Pursuant to KRS 418.040, et seq., this Court may properly exercise in personam
jurisdiction over the Defendants. 000015 of 000020 AMC : 000015 of 000020 15
PARTIES
57. Plaintiff Andy Beshear files this action in his official capacity as the Governor of the Commonwealth of Kentucky.
58. Plaintiff Michael E. Berry files this action in his official capacities as Secretary of the Kentucky Tourism, Arts and Heritage Cabinet and Member of the State Fair Board, as the
Governor’s designee. The State Fair Board is located in Louisville, Jefferson County, Kentucky.
Plaintiff Berry resides in Louisville, Jefferson County, Kentucky.
59. Defendant Bertram Robert Stivers, II, or his designee, is an ex officio, nonvoting
Member of the State Fair Board as President of the Kentucky Senate under HB 518 and is sued in his official capacity only. The State Fair Board is located in Louisville, Jefferson County,
Kentucky.
60. Defendant David W. Osborne, or his designee, is an ex officio, nonvoting Member of the State Fair Board as Speaker of the Kentucky House of Representatives under HB 518 and is sued in his official capacity only. The State Fair Board is located in Louisville, Jefferson
County, Kentucky.
61. Defendant Ryan Quarles is the Commissioner of the Department of Agriculture and is sued in his official capacity only.
62. Defendant Dr. Mark Lynn is the Chair of the State Fair Board and the board’s presiding officer, selected by the unlawful, newly-constituted board under HB 518 three days after the bill became law. The State Fair Board is located in Louisville, Jefferson County,
Kentucky.
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CLAIMS
Count I Declaration of Rights Violation of Ky. Const. § 28
63. Plaintiffs incorporate by reference each and every allegation previously set forth
in this Complaint as if fully set forth herein.
64. HB 518 violates Section 28 of the Kentucky Constitution by making the Speaker of the House of Representatives and the President of the Senate nonvoting, ex officio members of the State Fair Board. See LRC v. Brown, 664 S.W.3d 907. The legislative appointments to and legislative oversight of the executive branch board constitute unlawful encroachments on the
Executive Branch.
Count II Declaration of Rights Violation of Ky. Const. § 69
65. Plaintiffs incorporate by reference each and every allegation previously set forth in this Complaint as if fully set forth herein.
66. HB 518 violates Section 69 of the Kentucky Constitution by infringing on the supreme executive authority of the Governor, the Chief Magistrate, by removing the Governor’s authority to appoint all voting members of the State Fair Board, a board in the executive department and under the Tourism, Arts, and Heritage Cabinet, and giving the Commissioner, who is not the Chief Magistrate, the authority to appoint the majority – nine (9) of the 14 voting members appointed.
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Count III Declaration of Rights Violation of Ky. Const. § 81
67. Plaintiffs incorporate by reference each and every allegation previously set forth in this Complaint as if fully set forth herein.
68. HB 518 violates Section 81 of the Kentucky Constitution by impeding the
Governor’s and Secretary’s duty to take care that the laws be faithfully executed by removing the
Governor’s authority to appoint all of the voting members of the State Fair Board and giving the
Commissioner, who is not the Chief Magistrate and does not have a duty under Section 81, the authority to appoint the majority of voting members. HB 518 prevents the Governor and
Secretary from ensuring that the laws are faithfully executed by giving them no ability to ensure the board with an annual budget of more than $50 million and unilateral contracting authority properly uses taxpayers’ money in its operations and properly maintains and operates all of the properties under its custody and control.
69. HB 518 also violates Section 81 of the Kentucky Constitution by attaching the
State Fair Board to the Tourism, Arts and Heritage Cabinet solely for administrative purposes and defining those purposes as for matters the board requests that the Cabinet perform, giving the board sole discretion to deem necessary functions for its operation and properties. This prevents the Governor from taking care that the laws be faithfully executed through the head of his
Executive Branch Cabinet to which the board is attached.
Count IV Declaration of Rights Violation of Ky. Const. § 76
70. Plaintiffs incorporate by reference each and every allegation previously set forth
in this Complaint as if fully set forth herein. 000018 of 000020 AMC : 000018 of 000020 18
71. HB 518 violates Section 76 of the Kentucky Constitution by infringing on the
Governor’s power to fill vacancies on the State Fair Board, a board in the executive department, by transferring that power to the Commissioner, who is not the Chief Magistrate .
Count X Injunctive Relief
72. Plaintiffs incorporate by reference each and every allegation previously set forth in this Complaint as if fully set forth herein.
73. By reason of the actions and violations described above, Plaintiffs are entitled to relief in the form of a permanent injunction enjoining Defendants from enforcing or operating pursuant to HB 518.
74. Plaintiffs have no adequate remedy at law or otherwise to address this injury, save in a court of equity.
75. Plaintiffs are entitled to further relief as may be shown by the evidence and legal authority that may be presented in this proceeding. Plaintiffs reserve the right to amend this
Complaint, as necessary, to request any further relief to which they are entitled.
WHEREFORE, Plaintiffs demand judgment against Defendants as set forth in the prayer for relief, below.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs demand as follows:
I. A declaration that House Bill 518 violates Sections 28, 69, 76 and 81 of the
Kentucky Constitution;
II. Permanent injunctive relief preventing enforcement of HB 518;
III. Expedited review under KRS 418.050 and CR 57; and
IV. Any and all other relief to which Plaintiffs appear entitled. 000019 of 000020 AMC : 000019 of 000020 19
Respectfully submitted,
/s/ S. Travis Mayo Amy D. Cubbage General Counsel S. Travis Mayo Chief Deputy General Counsel Office of the Governor 700 Capitol Avenue, Suite 106 Frankfort, KY 40601 (502) 564-2611 [email protected] [email protected]
Counsel for Andy Beshear, in his official capacity as Governor of the Commonwealth of Kentucky
-and-
/s/ Sarah Cronan (w/ permission) Sarah G. Cronan General Counsel Donna A. Schneiter Deputy General Counsel Tourism, Arts and Heritage Cabinet 500 Mero Street, 5th Floor Frankfort, KY 40601 (502) 564-4270 [email protected] [email protected]
Counsel for Michael E. Berry, in his official capacities as Secretary of the Tourism, Arts and Heritage Cabinet and as a Member of the State Fair Board
CERTIFICATE OF SERVICE ON THE ATTORNEY GENERAL
In accordance with House Bill 3 (R.S. 2021), I hereby certify that a copy of this Complaint has been served on the Attorney General.
/s/ S. Travis Mayo S. Travis Mayo
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