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Commonwealth of Kentucky Supreme Court of Kentucky Case No COMMONWEALTH OF KENTUCKY SUPREME COURT OF KENTUCKY CASE NO. 2017-SC-647 COMMONWEALTH OF KENTUCKY ex rel. ANDY BESHEAR, ATTORNEY GENERAL APPELLANT v. On Appeal from Franklin Circuit Court, Division II Civil Action No. 17-CI-673 MATTHEW G. BEVIN, in his official capacity as Governor of the Commonwealth of Kentucky; HAL HEINER, in his official capacity as Secretary of the Kentucky Education and Workforce Development Cabinet APPELLEES BRIEF FOR APPELLANT Andy Beshear Laura Tipton Attorney General Matt James La Tasha Buckner Taylor Payne Assistant Deputy Attorney General Assistant Attorneys General Travis Mayo Office of the Attorney General Executive Director, Office of Civil and Capitol Building, Suite 118 Environmental Law 700 Capitol Avenue Frankfort, Kentucky 40601-3449 Telephone No. (502) 696-5300 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this brief was served this 27th day of April 2018, by hand-delivery and electronic mail, upon the following: M. Stephen Pitt, S. Chad Meredith, Office of the Governor, 700 Capitol Avenue, Suite 101, Frankfort, Kentucky 40601; and by U.S. Mail to Bridget Papalia, 300 Sower Blvd., Frankfort, Kentucky 40601; Honorable Thomas D. Wingate, Franklin Circuit Judge, 222 St. Clair Street, Frankfort, Kentucky 40601; and Kentucky Court of Appeals, Attn: Clerk, 360 Democrat Drive, Frankfort, Kentucky 40601. I further certify that the record has not been removed from the Clerk’s Office. ___________________________ Andy Beshear Attorney General INTRODUCTION This case involves the Governor’s violation of the Kentucky Constitution, Kentucky statutes, and Kentucky Supreme Court precedent by suspending statutes and rewriting law in a reorganization of statutorily created, independent education boards. The Appellant, the Commonwealth of Kentucky ex rel. Andy Beshear, Attorney General, asks this Court to reverse the Trial Court’s decision, to declare the Governor’s actions illegal, to declare Executive Order 2017-364 unconstitutional and void ab initio, and to provide needed guidance on any reorganization power under KRS 12.028. i STATEMENT CONCERNING ORAL ARGUMENT This Court has already determined that this case is of great and immediate public importance when it granted the Attorney General’s motion to transfer the appeal. The Attorney General is ready and willing to present oral argument if this Court deems it beneficial. ii STATEMENT OF POINTS AND AUTHORITIES INTRODUCTION………………………………………………………………………………..i STATEMENT CONCERNING ORAL ARGUMENT………………………………………...ii STATEMENT OF POINTS AND AUTHORITIES…………………………………………...iii STATEMENT OF THE CASE ...………………………………………………………………..1 Executive Order 2017-364………………………………………………………………...1 Beshear v. Haydon Bridge Co., 304 S.W.3d 682 (Ky. 2010)………………………………1 Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989)……………………………2 I. The Kentucky Constitution Places Matters Of Public Education In The Sole Province Of The General Assembly.…………………………………………….2 Keeling v. Commonwealth, 381 SW3d 248 (Ky. 2012)…………………………...2 KY. CONST. § 183…………………………………………………………………..2 KY. CONST. § 185………………………………………………………………….2 KY. CONST. § 186………………………………………………………………….2 Prowse v. Bd. of Educ. for Christian Cnty., 120 S.W. 307 (Ky. 1909)…………2-3 Commonwealth v. Griffen, 105 S.W.2d 1063 (Ky. 1937)………………………….3 Talbott v. Kentucky State Bd. of Educ., 52 S.W.2d 727 (Ky. 1932)……………….3 Calvert Inv’s., Inc. v. Louisville and Jefferson Cnty. Metro. Sewer Dist., 805 S.W.2d 133 (Ky. 1991)…………………………………………………………….3 Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989)…………………3-4 II. The General Assembly Meets Its Constitutional Mandate By Creating, Structuring, And Providing Authority To Independent Education Boards.....4 Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989)……………………4 1990 Ky. Acts ch. 476……………………………………………………………..4 KRS 156.029………………………………………………………………………4 iii KRS 156.040………………………………………………………………………4 KRS 161.028………………………………………………………………………4 KRS 164.011………………………………………………………………………4 KRS 158.648………………………………………………………………………4 KRS 158.794………………………………………………………………………4 KRS 158.6452……………………………………………………………………..4 KRS 158.6453……………………………………………………………………..4 A. The KBE was Created with the Independent Authority to Manage Common Schools.………………………………………………………...5 KRS 156.029………………………………………………………………5 KRS 156.035………………………………………………………………5 KRS 156.070………………………………………………………………5 KRS 156.040………………………………………………………………5 KRS 156.148………………………………………………………………6 B. The EPSB was Created to Independently Determine Qualifications and Discipline for Educators. ...........................................................................6 KRS 161.028…………………………………………………………….6-7 KRS 161.120………………………………………………………………6 KRS 161.017…………………………………………………………….6-7 C. The CPE was Created to Independently Manage Postsecondary Education. ………………………………………………………………..7 KRS 164.011…………………………………………………………….7-8 KRS 164.020………………………………………………………………7 iv D. The Council for Gifted and Talented Education was Created as an Independent Board to Advise on Matters Related to Gifted and Talented Students. ……………………………………………………….8 KRS 158.648…………………………………………………………….8-9 E. The Grant Steering Committee has Independent Authority to Advise the KBE and the Kentucky Department of Education. ………………..9 KRS 158.794…………………………………………………………...9-10 KRS 158.792…………………………………………………………........9 F. The Curriculum Council was Created as an Independent Council to Advise KBE. …………………………………………………………….10 KRS 158.6452……………………………………………………………10 G. The Standards Committee was Created as Independent Committee to Review Procedural Aspects of Other Committees. …………………...11 2017 Ky. Acts ch. 156 § 3………………………………………………...11 KRS 158.6453……………………………………………………………11 III. The Governor’s Executive Order Suspended, Altered, and Rewrote The Statutes Enacted By General Assembly. ……………………………….…11 Executive Order 2017-334 …………………………………………………...11-12 Executive Order 2017-364 …………………………………………………...12-13 IV. The Attorney General Sought A Declaratory Judgment That The Governor’s Unlawful Suspension And Rewriting Of Laws Were Unconstitutional.….......13 KRS 12.028………………………………………………………………………14 Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989)……………………14 V. The Attorney General Appealed The Trial Court’s Decision. ………………..14 VI. The General Assembly Did Not Confirm Executive Order 2017-364. …….....14 Executive Order 2017-364……………………………………………………….14 KRS 12.028….…………………………………………………………………...14 v STANDARD OF REVIEW……………………………………………………………………..14 Executive Order 2017-364……………………………………………………………….14 KRS 12.028………………………………………………………………………………14 Pearson ex rel. Trent v. Nat’l Feeding Sys., Inc., 90 S.W.3d 46 (Ky. 2002)………………15 Caniff v. CSX Transp., Inc., 438 S.W.3d 368 (Ky. 2014)……………….………………..15 ARGUMENT……………………………………………………………………………………15 KRS 12.028………………………………………………………………………………15 I. The Trial Court Erred By Holding The Governor May Suspend Statutes. ….15 Fletcher v. Commonwealth, 163 S.W.3d 852 (Ky. 2005)……………………..15-16 Baker v. Fletcher, 204 S.W.3d 589 (Ky. 2006)……………………………….15-16 Beshear v. Haydon Bridge Co., 304 S.W.3d 682 (Ky. 2010)…………………15-16 Legislative Research Comm’n by and through Prather v. Brown, 664 S.W.2d 907 (Ky. 1984)………………………………………………16 A. The Kentucky Constitution and Supreme Court Precedent Forbid the Governor From Suspending Statutes. …………………………………16 KY. CONST. § 15………………………………………………………….16 Fletcher v. Commonwealth, 163 S.W.3d 852 (Ky. 2005)……………..16-17 Baker v. Fletcher, 204 S.W.3d 589 (Ky. 2006)……………………….16-17 Beshear v. Haydon Bridge Co., 304 S.W.3d 682 (Ky. 2010)……………..17 Executive Order 2017-364……………………………………………….17 B. LRC v. Brown Does Not Hold that a Governor May Suspend Statutes During a Reorganization. ………………………………………………17 Legislative Research Comm’n by and through Prather v. Brown, 664 S.W.2d 907 (Ky. 1984)……………………………………....18 KRS 12.028………………………………………………………………18 vi KY. CONST. § 15………………………………………………………….18 II. The Trial Court Erred In Holding the Governor Did Not Unlawfully Rewrite and Create Law. ………………………………………………………………...19 KY. CONST. § 27………………………………………………………19-20 KY. CONST. § 28………………………………………………………19-20 KY. CONST. § 29………………………………………………………19-20 KY. CONST. § 60……………………………………………………....19-20 Commonwealth, Cabinet for Health and Family Serv. v. Chauvin, 316 S.W.3d 279, (Ky. 2010)…………….......................................19 Fletcher v. Commonwealth, 163 S.W.3d 852 (Ky. 2005)………………...19 Executive Order 2017-364……………………………………………….19 KRS 156.029……………………………………………………………..21 KRS 156.040……………………………………………………………..21 KRS 158.6452……………………………………………………………21 KRS 158.6453……………………………………………………………21 KRS 158.648……………………………………………………………..21 KRS 158.794……………………………………………………………..21 KRS 161.028……………………………………………………………..21 KRS 161.120……………………………………………………………..21 KRS 164.011……………………………………………………………..21 Vandertoll v. Commonwealth, 110 S.W.3d 789 (Ky. 2003)………………21 KRS 446.010……………………………………………………………..21 KY. CONST. § 81………………………………………………………….21 III. The Trial Court Erred When It Held KRS 12.028 Delegated To The Governor The Authority To Suspend Law. ………………………………………………21 vii Executive Order 2017-364……………………………………………………….21 KRS 12.028…………………………………………………………………...21-22 A. The Legislature May Not Delegate the Authority to Suspend Law.....22 KY. CONST. § 28………………………………………………………22-23 Board of Trs. of Judicial Form Re. Sys. v. Att’y Gen. of the Commonwealth of Ky., 132 S.W.3d 770, 781 (Ky. 2003)………...22 KY. CONST. § 15………………………………………………………22-24 KRS 12.028………………………………………………………………22 Legislative Research Comm’n by and through Prather v. Brown, 664 S.W.2d 907 (Ky. 1984)……………………………………....23 Adams v. Commonwealth,
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