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

# Commonwealth of Kentucky Court of Appeals

NO. 20 2 2

- CA

- 0 9 64

- M R

DANIEL CAMERON, ATTORNEY GENERAL, ON B EHALF OF THE COMMONWEALTH OF KENTUCKY APPELLANT

APPEAL FROM JEFFERSO N CIRCUIT COURT
v. HONORABLE CHARLES L. CU N NINGHAM , JUDGE ACTION NO. 2 2

- CI

- 00 2816

JEFFERSON COUNTY BOARD OF EDUCATION AND DR. JASON E. GLASS, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF EDUCAT ION APPELLEE S

OPINION AFFIRM ING
**   **  **
BEFO RE: CALDWELL, COMBS, AND K AREM , JUDGE S

. KAREM , JUDG E : In 2022 , the Kentucky General Assembly passed an omnibus
ed ucation bill, Senate Bil l ( S

. B

. ) 1 , entitled “ an Act relating to educati o n and- 2

-

de claring an emergency

. ” 1 Section 3(2) of S.B. 1 , codified i n Kentucky Revised
Statutes ( KRS ) 1 60 .370(2), signific ant l y modif i e s the relationship between local
boards of education and superintendents , b y giving greater a uton omy and power to the superintendents. KRS 160.370(2 ) only appl ies , however, in “ a county sc h oo l district in a county w i th a consolida ted local go ver n ment [

. ] ” KRS 160.37 0 (2).
T he only school di strict which meets this descriptio n is that of Jefferson Cou nty

.

T he Jefferson County Board of Educati on ( t he Board ) sought a declaratory judgment i n J e fferson Circuit Court , co n tendin g that five specif ic

pr ov isions of KRS 160.370(2) violate the ban on special and local legislation found
in Section s 59 and 60 of the Kentucky Constitu tion

. T he ci rcuit court rul ed th at
the contes ted provisions violate d n o t only Section 59 but also the e qu al p rote ction
clau s e f ound in Section 2 of the Kentucky Constitution

. The appellant, t he Attorney General of Kentucky, argues that th e
Boar d lack ed constitutional stan di ng to c hallenge th e leg isl atio n and failed to n a m e

a necessa ry part y to th e suit

. As to t he merits, h e a rgue s that the challenged provisions survive constitutional scrutiny under Section s 59 and 60 bec ause they do not apply to a particular individual, object , or locale and that th e l e gisl a t ion

cr e a te s a classificat ion which pa ss e s r ational basis re vie w for p urp oses of equal

pr otection

.

1 2022 Ky. Acts ch

. 196, S.B. 1.- 3

- Upon car eful consideration , we hold that the Board had standing to bring this suit, that it did not f ail to na me a nec es s ary party, and that the con teste d

pr o vis i o n s o f KRS 160 .370(2 ) are local o r speci al legislation prohi b i ted under
Sections 59 and 60 of the Kentucky Constitution.

I. FACTUAL AND PRO CEDURAL BACKGROUND
The five subsections of KRS 160.370(2 ) at issue in this a ppeal provide

as follows : (2) For a county s c hool district in a county with a

consolidated local g ov ernment adopted under KRS Chapter 67C: (a) A loc al bo a rd of education shall:
1 . Delegate authority t o the superinte n dent over t h e district ’ s day

- to

- day operations and i mplementation of the board

- ap p r oved strategi c plan in a m an ner t hat promotes th e eff ic ient, timely operat ion of the district, inc luding bu t n ot li mi ted to the authori ty over contracts re la ted to daily op e rati ons o f t he district, pupil transportation, perso nnel matters, and th e organ iz a t ional structu r e of admi ni s tr ative staff;
2. Exc ept a s expressly req uired by statute, including su bparagra p hs 3. an d 5 . of this paragra ph, not meet more th an once every fou r (4) week s f

or the purpose of approving necessa ry ad ministrative matters [

. ]
KR S 1 6 0.370 (2)(a) 1

. , 2

.- 4

- ( b) Notwithst a nding any prov i s ion to the contrary in su bsection (1) of this sec tion, the s u perin tenden t shall:
2. P repare all rules, re gu latio ns, bylaws , and stat e m e nts of policy for approval and adop tion by the board, with a ppro val no t to be withheld wit h out a two

- thi rds (2/3) vote o f th e board to deny appro val or adoption; [and]

. . . . 5. Notwit hs t andin g any la w that assig ns an administrative d uty, responsibi l ity, or a u t h ority to a board of education, or o ther law to the contrary , be res ponsib le fo r any admini s tra tive duty n ot explicitly g rant ed to the board under paragraph (a) of this s ubsection [.]
KRS 1 60.370(2) (b) 2. , 5.

(c ) If the county adop ts the provisions of t he Ke n t u cky Model Procurement Code, the boa rd sh all authorize th e su perinte ndent t o approve p urchase s, in accord an ce wit h small purc hase procedures adopt ed by the board, for any contract f o r whi ch a dete rminat ion i s made that the aggr eg ate amount of t h e co ntrac t d oes not exceed two hundred fifty th ousan d dollars ($250, 00 0)

. The b oard sh all author i ze the su perintende nt to ap pr ove a line

- item transfer within its annual budget as sh e or he d ee m s nec essary, p rovide d tha t the aggregate amou nt of any individ u al t ransf

e r does not exceed two hundred fifty t housa nd dollars ($25 0, 0 00 ). The super in tendent sh a ll prov id e a quarte rl y repo rt to t he bo ard on any purc hases made under this subsecti on.
KRS 16 0 .370 ( 2) (c)

.

To summariz e, the provis i ons th at are being chal l enge d require the
school board to giv e t he superinte n dent authori ty o ver th e “ day

- t o
- day operat i ons- 5

-

and imp lementati on of t he board

- ap proved str ateg ic plan ” ; req uire the board to
l i mit its m ee t ing s to once every four weeks ; require a two

- third s vote of th e boa rd to disapp ro ve a rule, regulat io n, by

- l a w, or statem ent of po li cy of the

su pe rintendent; r eq uire the board to grant t he s uperint endent res ponsibility f or

“ any admini stra tive d uty n ot e x p l icitl y grante d to the [ school ] board ” ; and require
the board to a utho rize the superintendent to ma ke purcha ses not exceeding $2 5 0 , 000 and transfe rs t o the a n nua l budget in the same amount , w ith out board approval

. As previously stated, t he Jefferson C ounty scho ol dis trict is c u rrently
the o nly “ coun ty sch ool di strict in a c ounty with a consoli dated local go vernment

a d opte d under KR S Ch apter 67C [ .] ” KRS 160 .37 0( 2 ).

The Board ’ s complain t n amed one defendant, Dr. Jaso n E. Glass, i n
h is official capacity as the Com missione r of Ed uc a tion of Kentuck y ( the
Commissioner )

. The complain t sought a declaratory judgme nt that the challenge d

pr o visions of S.B

. 1 viol at e t h e pr o h ibition against spec i al or lo cal legislat ion
found in Sections 59 a n d 60 of th e Kentucky Constitution and requested temporary
and perm anent injunctive relief

. The Attorney General entered an app earance , pursuant to K RS 418 .075(1) and K RS 15.020(3) , to de fend t h e constitution ali ty of the legi slation

.- 6

- The ci rcuit court conducted a h eari ng at which the C ommissioner expressed no o pinion regard ing the constitutionalit y of the provisions, o r whether
he would enforce the m, sta ting it was n ot his rol e t o determine if they w er e

co nst itutiona l and that he had t o assume the y were constitutional until t old
otherw i se. T he Attorney General argu ed that because t h e Commissioner was not taking a posit ion contrary to the Bo ard it w as unc lear whether a case or

con t roversy e x isted. Counsel for the Boa rd indicated th at Dr. Marty Pollio, the Superintendent of the Jefferson County School District, was not planning to defend
the challenged provisions.

The Jefferson C ircuit C ourt en t er ed a declara tory ju dgment hold i ng
that the c hal lenged pro vis ions vio l ate Section 59 of the Ken tu cky Constitution , which prohibit s spec ial and loc al legislation

. O f i ts own accord , it held t hat the provisions also vi ola te the equal protecti on clause o f S ec ti on 2 o f th e Kentucky
Constit u tion

. It s orde r declar ed t h a t t he Boa r d did not have to comply with the provisions , but it did not enter an injunctio n , explaining that it did “ no t en vision,
abs ent a differing opinion bein g issued by an appellate court, t h a t an yone w ill be
activel y tryi n g to enforce the conte sted pr ovisions once this declaratory jud gment
has been disse minated

. ” The circuit court retained the right to enter an injunction
if any attempts were made to e nforce the provisions after the date th e sta tute
b ecame effective. Up o n unopposed mo tion by the Boa rd, t h e ci rcuit co urt ente red- 7

-

a motion to am end t he judgment to clarify the spec ific provisions of S

. B

. 1 to
which th e declaratory judgmen t appl ie d

. This appeal by the Attorney G eneral
f ollowed. The Pre sident of the Kentucky Senate, Robert Stivers, su bmi tted an
amicus curiae brief defend ing the legislation.
II. STAN DARD OF REVIEW

“ The st andard of review on appeal from a decl aratory ju d gmen t is
whethe r the ju dgment w as clea rly e rroneous
. ” Publ i c Se rvice Commissio n of
Kentuc k y v. Metro

p o litan Housing Coa li tion , 65 2 S

. W.3d 648, 651 (Ky. App. 2022), discretionary review denied ( Oc t. 12, 20 22) ( ci ting Ame rican
Int erinsurance Exchange v . Norto n , 631 S.W

. 2d 8 51, 852 (Ky

. App. 19 82) )

. III. ANALYSIS
i
. The Board had sta nding to challeng e the sta t ut ory provisions

The Att orn ey General argu es th at the Boar d lacked constitutional

st andin g to brin g this sui t

. Whether the Boar d ha s standing “ is a juri sdictional
quest ion of law that is reviewed de novo

. ” Wa rd v
. Westerf ield , 653 S.W.3d 48 , 5 1 (Ky. 2 0 22), reh ’

g denied (Sep . 2 2, 2022) ( citation omitted )

. T he exi s t enc e o f s tandi ng is of pa ramount import ance in any lawsuit.
The Kentucky Supre m e Co urt “ has held, and reaffirmed, that ‘ the existence of a pla in ti ff ’ s standin g is a constitutiona l req uire m e nt to prose cute any action in th e

court s of this Commonwealth. ’ ” Id. (qu oti ng Com monwealth Cabinet for Health- 8

-

& Fam ily Serv ices , Dep a rtment for Medi caid Serv ices v
. Sexton by & th rou gh
A ppalachian Re g ional Heal th care , Inc

. , 566 S. W.3d 18 5, 188 (Ky. 2018) )

.

To d e termin e whether a party has sta nding, Kentucky has adopte d the
fede ral L ujan te st

. Sexton , 566 S.W.3d at 196 ; see Lujan v. Defenders o f Wildlife , 504 U.S. 555 , 560, 112 S

. C t

. 2130, 2136, 119 L. Ed. 2d 351 (1992). T h e tes t requi res the p laintiff to p rove three el e ments: (1) injury, (2) causat ion, and ( 3) redressability

. Id

. “ To invoke the court ’ s ju risdiction, th e plaintiff must allege an injury caused by the defendant of a sort the court is able to redress .” Kenton
C ou nty Bo ard of Ad

justment v . Meitzen , 607 S

. W.3d 586, 597 (Ky. 202 0) (cit atio ns
omit ted)

. Kentucky ’ s Declaratory Judgment Act allows t he courts to d etermine a
l itiga nt ’s rights before harm occurs if the plaintiff shows the existen ce of an actual
controversy. C

ommonwealth v. Kentu c ky Retirement Sy s tems , 396 S.W.3d 833, 839 (Ky . 2013) ; KR S 418.040

. S uch a controversy occurs when a def end ant ’ s position would “impa ir, thwart, obstruct or defeat plaintiff in his rights.” Kentu c ky
Retire men t Sy s tems , 396 S.W.3d at 839 ( quoting Revis v. Dau gherty , 215 Ky. 82 3,
287 S.W. 28, 29 ( 1 926) )

.

The At t orney General argues t h at the Board fail ed to prove th e
elemen ts of causation and redressab i lity , be cause even if t he chal leng ed provisions injur e the Board by transferring som e of its powers to the Superintendent , th e- 9

-

B oard cann ot show th a t the Commissio n er caused that inj u r y or that th e Co urt can

re dress that injury by granting r elie f again st the Co mmi ss ion er
.

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

- enforcement
ch allenge to the con stitutionality of a st atute , t h e Lujan el ements of causat i on and
redres sability are met when the p laintiff names as the defendant the government
offi ci al charg ed w ith enforcin g the l aw. So, for example, p lai ntiff s who brought suit against the Governor an d the Commissioner of Agricultur e for fail ure to
enforce a n imal protection statutes fail ed to meet the Lujan element of cau s ati on
because “ the animal shelter st atut es do no t ve st enforcement power with the
Gov ernor or the Commissioner of Agriculture

. ” Kase y v. Beshear , 626 S.W.3d
2 04 , 2 09 (Ky. Ap p. 2021), discretionary review denied (Aug. 18, 2021)

. By

c ontrast , p l ain tif

f s who challenged the c onstitutionalit y of the Education Opportunity Account Act as imp erm is sibly redirectin g state revenues to public
school s properly named as defendants the Secretary o f t he Ke nt u cky Financ e and
Administration Cabin e t and the Commis sion er of the Ke ntucky D epartment of
Revenue “ based on their s tatutor ily

- prescribed roles in im plem enting the

program. ” Commonwe a lth ex rel. Cameron v. Johnson , 658 S.W.3d 25, 30 ( Ky.
2022 ).
Kentu cky law in thi s respect mirrors the f ede r al standard, w hich provides t hat “ whe n a plaintiff brings a p re
- enforcement challenge to the- 10

-

consti tutio nali ty of a p articular statutory provision, the ca u s ation element of

sta n ding requires the named def endants to pos sess aut h or ity to en force the

co m p lai n ed

- of provisio n.” Bronson v. Swensen , 5 00 F.3d 1099, 1110 (1 0th Cir. 2007). F or standin g t o exist, the re m ust be “ a n actual enfor cement connection

–

s ome enforcement power or a ct that can be enjoined

– between the defendant
off i cial an d the challenged s t atu te. ” Okpalobi v . Foster , 244 F.3d 40 5 , 419 (5th Cir. 2001)

. Similarly, t o mee t the redre s sa bili ty prong of th e Lu

jan test in the context of a challenge to a statute , the named defendant must have t he power to
enforce the cha l lenge d statute. Bronson , 500 F.3d a t 111 1. The enforcement

requ irement is critically important because, without it, a court coul d is sue “ what
would amount to an ad visory opinio n without the possibility of any judici al relief. ” California v. Texas , 539 U.S.

_ __ , 1 4 1 S. Ct. 2104 , 2116 , 210 L

. Ed. 2d 230 (2021) ( internal quotation marks and citation omitted ).

T he Boar d argue s that th e Commiss ioner , the c hief state school
offi cer, 2 was the appropriate defendant for p urpos es of standing be c ause the

conte ste d sta tuto ry provisi o ns ar e enforcea b le only by the Commissioner, as provided in K R S 156.210 , wh i c h state s:

2 The Com m issio ne r is appointed by the Education Management Selection Commi ssion “ to carry out the duties of the chief state school offic er
. ” KRS 156.147 ( 2 )

.- 11

- (1) The chief state schoo l officer sh all have access to the papers, books and records of all teachers, trustees, superintendents, or other public school offic ials. (2) He may administ e r oaths and may examine witne sses under o ath in any part of the state in any matter pertaining t o the publ ic schools, and may cause the testimony to be reduced to writing. He may issue process to compel attendance of witnesses b efore him an d compel witne s ses to testify in any investi gation he is authorized to make. (3) Whe n he or hi s assistants fin d a ny m ism a na gement, misconduct, vi ol ation of law, or wron gful or imp roper use o f an y district or state school fund, or neg lect in th e pe rform anc e of duty on t h e part of any officia l, he sh all
r ep o r t t he same, a nd any other v iolation of the school laws dis co v ered by hi m, to the Kentucky Boa rd of E ducation, which shall , t hro ugh the chi e f s tate school officer or one (1) of his a ssistants, cal l in the county attorn e y or the Commonwealth ’ s attor ney i n t h e c ounty or d istrict where the violatio n o ccurs, and the a tt o rney so ca lled in shall assist i n the i ndictment, prose cutio n, and conviction of the accused

. If pr o secution is not war rantable, the K entu cky Board of Educ a tion may rectify and regulate all su c h ma tters.
KR S 156.2 10

.

The Attorn ey General argues that t he cha llenged statutory provisions do not provide the Commissioner with sufficient enforcement powe rs to create standing . He po ints out tha t the challeng e d legislation do es not transf er the
Board ’ s powers to the Commissioner, but t o the Superint endent , an d it do es not

e m power t he Commissioner to take any action to enforce the p rovis ions

. He
contends that KRS 156.2 10(3) c annot mak e up for the Commissioner ’ s “ lack of- 12

-

role ” and that any fear he will choose to e n force the statutory pro visions is “ pure conje ct ure
. ”
But the Commissioner ’ s duty to enforce the statute is not conjectural ;
it is m andatory. The Com missio ner is t he execu tive and adm inis trative of f icer of the Kentucky Board of Education i n its adminis tration of all educatio nal matte rs
and functi on s. KRS 156.148(3)

. The Commissioner must report any violations of
the law to the Board , which is req uired , th rough th e Commis sioner or hi s
assist ants, t o call in the county attorney or Commonwe alth ’ s att orney who in turn
is requi red to assist i n prosec ut ing the accused

. KRS 156.210(3)

. If prosecution is not warranted, the Kentucky Board of Education has the discretion to recti f y and

re gul ate the ma tter

. Id

. Whe ther a defen dant po ssesses enfo rcement authority
suff icient for sta ndin g purposes tu rns on w hether the defendant “ h as ‘ some
connection ’ with the enforcement of the [ challenged state law ]

. ” Di gital Recogniti on Network, I

nc. v. Hut chi ns on , 803 F.3 d 952, 957 (8th C ir. 2015)

. T he
Commission er ’ s role under KRS 156.2 10 (3) meets thi s standard

.

The A ttorney Gen eral contends tha t beca use the challenged legislation
does not contain a ny specific internal pr ovision empo wering the Commis sioner to
take any a c tion that could harm t he Boa rd, the Board i s unable to establish that any inj ury it suffers is tra ce able to the Commissioner

. He relies on California v. Texas ,
supra , a case in which the plaintiffs claimed the P atient Protectio n an d Af fordable- 13

-

Car e Act , which required them to purcha s e minimal es sential health insurance

coverage , was unco nstitutional

. O riginally, the Act imposed a monetary penalty
on individuals for fai lin g t o pu rchase such coverage , and provided that the penalt y would be included with t h e taxpay er ’ s federal tax retu rn . Accordin gl y, t he IRS required taxpayers to report on the ir fe dera l income tax return whether they car ried
minimum essent ial coverage. C on gre ss thereafter amended the Act to reduce th at penalty t o $0. The Supreme Court h e ld that this amendment depriv ed the plaint if fs of standing becaus e “ the stat utory provision, while it tells them to obtai n that [minimum essential health i n surance] coverag e, has no means of enforcement. With the penalty zeroed out, the IRS can no longer seek a p enalty from those who fail to comp ly

. ” California , 141 S. Ct. at 2114

. “ Be cause of this, th ere is no possibl e Government action that is causally connec ted to the plainti ffs ’ in jury

– the costs of purchasing health insurance. ” Id

. I f the monetary penalty sti l l e xisted, the
IRS would ha ve enforceme nt authority ; without the penalty , the IRS had not hing to
enforce and there was simply no means to compel the plaintiffs to purc has e the
insurance

. By c ontra st, KRS 156 .210(3) imposes a clear and mandatory duty o n
th e Com mi s sioner to report v iolations of law a nd t o see k enforcement of those
laws

. The Commissioner has the means to compel enforcement of statutes, eithe r
via crim ina l proceedings or referral to the state Board , which is resp onsible f or- 14

-

“ the managemen t and control of the common sc hools and all programs operated in
these schools , ” KRS 1 56.0 70 ( 1 ) , and whose sweeping power s include the ability to
remove school board members

. See Gearhart v. Kentucky State Bd. of Ed uc. , 355
S.W. 2d 66 7, 670 (Ky . 1962). I t is true that when a prosecut ion is not de e m ed

approp riate, the Kentucky Board of Educ atio n is given the discretion to rectify and regulate all such ma tter s, but t he C om mission er is the entity tasked with initiating and executing such a proceeding.

Th e Attorney General argues that Supe ri ntende nt Polli o is noneth eless
free to follow the ch al lenged provisions without any interfer ence from the
Commissioner. But the C ommissioner has the authority and the duty under KRS
1 56. 210(3) to proceed again st the Su p eri ntendent if he attempts to follow the

p ro visions after they are declared unc onstitu tion al

.

We conclude th at the Board had standing to bring this suit because t he Commissioner possess es sufficient enforcement powers to meet the causation and
redressa b ility elements of the Lujan t est.
ii. Th e Superintendent was n ot a necessary party

In a rel ated a rg ume nt, t he Atto rney General argues that this appeal
should be dism isse d because Superintendent Pollio was a necessary pa rty un der
both Kentucky Rules of Civil P ro cedure (C R) 19.01 an d the terms o f the
Decla rator y Ju dgm e n t Act.- 15

- CR 19 .01 p rovi des in pertin ent par t that [a] per son who is subject to service of proce ss, either pe rsonal or co nstructive, shall be joined as a party in t he action if (a) in his ab s ence c omplete rel ief c annot b e accorded am ong those al ready p ar tie s, o r (b) he cl aim s an i nterest relat ing to the subje ct o f the action and is so situat ed that t he dispositio n of the act ion in his absence
m ay (i) as a practi cal m atter impair or i mpede his abilit y to protec t tha t inter est or (ii) l eav e any of the p er so ns al re ady parties su bj ect to a substant ial ris k of incu rrin g double, multiple, or otherw ise incon sistent oblig ations by re ason of his claimed interest. If he ha s no t been so joined, the cour t shall order that he be made a party. If he sh ould join as a p la int if f but refuses to do so, he may be m ade a d efendant, or, in a proper case an involunt ary plain tiff.
The Dec laratory Ju dgment Ac t sta tes that “ [w] h en declaratory reli ef is

s o ught, all persons sha ll be ma de parties wh o have or claim any i nt er e s t w hi ch
would be affected b y th e dec laration, and no d ecla ration shall prejudice the ri ghts of p ers ons not parties to the proceeding

. ” KRS 4 18.075

.

The Att orney Genera l argue s that , fundamentally, the Board ’ s di spute
i s with the Superintendent , wh ate ve r Dr. Pollio ’ s personal vi ew o f t he matter and his per sona l assurances that he wil l not fol low the statute , and that th e Boa rd

c annot s e ek judicia l relief with respect to the Sup erinten d en t ’ s duties without
namin g h im as a par ty

.

A s a preliminary mat ter , t he Board contends t h at bec ause the Attorney
General did n ot intervene in the law suit and become a party, choosing instead to- 16

-

enter an appearance to de fe nd th e constitutionali ty of t h e challenged provisions, he
i s not empower ed to raise this issue at all . The Board relies on a seri es of cases

w hich hold that CR 19.01 can be invoked on ly by parties. “[T]he provision of the Declaratory Judgment Act relatin g t o p arties , KRS 418. 075, an d

. . . the civil rule which p rescribes wha t parties shall be jo in ed if f e asible, CR 19.01[,]

. . . c an be invoked only by parties , not by a person who seeks t o become a party.” Murphy v.
Lexi ngton

- Fayette County Airport B d

. , 472 S.W.2 d 688, 689

- 9 0 (Ky. 197 1 ). (Emphasis in original

. ) Hold ing oth er wise would permit a non p arty to “simply lie
back an d awa it th e result of the action in the circuit court and then, if not sa tisfied with the judgme nt, compel a retrial by the device of in terve ning after j udgment.”
I d. a t 690

. Uninsured Employ ers ’ F und v . Bradley , 244 S.W.3d 741, 746 (Ky

. App. 2007)

. Und er KR S 418. 075(1) , t he Attorney General is specifically entitled
to be hear d regarding the validi ty of a statute , withou t becoming a par ty. The
A ttorney G eneral , although not a party, was pre sent fr om t he o ut se t of th is litigation and argued that the Supe ri nte ndent was a necessary part y ; he did not “ lie
back ” and await the o utcome of the proceedings before rais i ng a n attack on the judgmen t. Under these circumstan c es, the Attorney G enera l is e ntitled to appellate
revi ew of his argument that th e Su perintend en t w as a necessary party.- 17

- The express language of the challenged provisions re quires action on
the part of the Board to delegate au th ority to the Superintend e nt over day

- to

- day operations an d requir es the Board t o authorize him to appr ove p ur chases. KR S
1 60.370(2)(a) 1. and 160.370(2) (c). The Superintendent is not empowered to f o rce
the B oard to limit the frequency of its meetings. K RS 160.370(2)(a) 2. Onl y KRS 160.370(2)(b ) 2

. and 5

. expressl y constrai n t he Board from withholding its approval
of the Sup eri ntendent ’ s rules and regulations wi thout a two

- thirds vote and make the Superintendent res ponsible for any administrativ e d uty not explicitly granted to
the Board. Bu t the Superi ntendent is not given an y means by which to enforce
th ese latter provis ion s
. The Superintendent ’ s presence as a party was not required

. iii. T he conte sted provis ions v iolate the prohibition against s pecial and local legislati o n Finally, we address whet her the cir cuit court erred in holding that the challenged legi slation v io lat e s the prohibition again st s peci a l or local legi slation
fou nd in Sections 59 and 60 o f t he K e ntuc ky Constitution. The cons titu tionality of

a statute is a questio n of law which we review de novo
. Teco/ Perr y C ou n t y Coal v.
Feltner , 582 S.W.3d 42, 45 (K y . 2 019 )

. “In considering an a t t ack o n the

cons titutionality of legislation, this Court h as continual ly resolved any doubt in
favor of constitutionality rather than unconstit utionali ty.” S.W. v . S.W. M. , 647
S. W.3d 8 66, 873 (Ky. App. 2022), discretionar y r evi ew denied ( Aug. 16, 2022)

.- 18

- Sections 59 and 60 first appeared in Kentuck y ’ s fourth and final
Constitution in 1891 . They represente d a n attempt to pre v ent the leg i slat ur e from wasting its time on mundan e and trivial local ma tt ers a n d neglecting gen e ral
le gislation. Calloway C ou nty Sheriff ’ s Department v. Woodall , 607 S.W.3d 557,
5 7 1 (Ky. 2020)

.

Secti o n 59 expressly forbids local or s pecial legislation relatin g to the

manageme nt of public schools. It states in relevant pa rt that “ [t] he General
Ass emb ly sh all not pass local or special acts concerni ng any of the followin g subjects, or f

or any of the fol lowing purpo ses, namely:

. . . [t] o provi de for the

man ageme n t of c ommon s ch oo ls. ” K Y

. C O NST

. § 59( 25 )

.

Sec tion 60 provides tha t [t] he Gener al Ass emb ly sh all not indir ectly enact any specia l or local act by th e repeal in part of a general ac t, or by exemptin g from the o peration of a ge neral act a ny city, town, d istrict or county; b u t laws r epealing loca l or sp ecia l act s may be en acted. No law sh all be ena ct ed gran t ing p owers or privileges in any case wher e the g ranting of such powers or privi leges shall have be en provide d for by a g ener al law, nor where the cour t s have jurisdiction t o grant the same or t o give the r elie f asked for

. No law, exce p t s uch as r el ates to the s ale, loan or gift of v inous, spiritu ous or malt liquors, b ridges, turnpike s or other public r oads, publ ic buildings or improvement s, fencing, run n ing at large of sto c k , matte r s pertaining to comm on s c hool s , paupe rs, and the regul a tio n b y cou nt ies, ci t ies, towns or other municip alities of the ir loc a l affairs, shal l be enacted to take effect upon th e approval of any othe r au thority tha n- 19

- the General A s sembly, unless othe r w is e exp r essly provide d in th is C o nsti t ution.
K Y

. C ONST

. § 60

.

T he original test for a violation of Section 59 was simply that “ special legislation applies to particular pl aces or persons as dist inguish ed f rom classes of places or p e rsons [

. ] ” Woodall , 607 S.W.3d at 567 (quot ing Green e v. Caldwell , 170 Ky. 571, 5 8 7, 18 6 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 m is takenly appl i ed what was e s sentially a n equal protection analysis to th e special legislation pro hib iti on in Section 59 . They followed the te st

s et ou t in Schoo v. Rose , 270 S. W.2d 940 (Ky. 1954 ) , which states : “ [I] n order f or a law to be general in its c onstitutional sen se it mus t meet the following

requ ir eme n ts: (1) [i]t m us t apply equal ly to all in a class, and (2) there must be
distinctive an d na tur al reasons inducing and supp orting the class ification.” Id. at
941.
The Woodall Court held t ha t t he Schoo test , whose origin s can be
traced to the 1 792 Con stitution, d oes not “ c ompor t with a prop er int erpretatio n ” of
Sections 59 and 60 as they were understood at the time of the passage of the Third
Co nstitutio n in 1891. W

oodall , 607 S.W.3d at 566

. Woodall set f or th the following test whic h represents a return to the o riginal test : a statute is spec ial or local legis lation prohibited by Sections 5 9 and 60 if “ the statute applies to a- 20

-

particular individua l, object or locale. ” Challenges based on classification , o n the other hand, succeed or fail on the basis of equal pr otection anal ys is under Sec tion s
1 , 2, and 3 of the Kentucky Constitution. W oodall , 607 S.W.3d at 573.
The circuit court held that the challenged legislation in this case
vio lated Section 59 because , althoug h it did n ot mention Jeffers o n County expressly by name, t he provisions p lain ly singled out counties with a type of governance that only e x ists in Jef f erson Cou nty

. The Attorney General argues t hat the challenged pr ovisio ns instead
represent a classif

ic ation which could app ly to any school di strict in a coun t y with

a con so lida ted local government that exists now , or in the future , and c on se quent ly
the sta t ute is one of g en eral applic a tion across the entire Commonwealth. The Attorney General points out t hat nothing is prevent in g a cit y in a co unty with a

popu l at ion of more than 25 0,000 re sidents from choosing to become a city of the
first class and thereafter opting for co nsolidati on w ith its county under KRS 67C.101(1)

. In other words, the statute app li es to a class rather than a specific individual, object , or loc ale , and the ref ore does not violate Section 59. In the same vein, t he amicus brief of the President of the Kentucky
Senate conten ds that this case f al ls squarely in a line of cases hol ding th at statutes
app licable onl y in counties of a certain pop ulation are not spe cia l, loca l legislatio n under Section 59 . For example, in Winston v. Stone , our highest court held that a- 21

-

t axation statute applying only to counties with a po pulatio n greate r than 75,000 did
not violate Sec t ion 59. Winston v. Stone , 10 2 Ky. 423, 43 S

. W. 397 (1897),

ov er ruled on other grounds by Vaughn v. Knopf , 895 S.W.2d 566 (Ky. 1995)

. The
Court reason ed t hat the statute

operates up on a multitude of pro p erty of like cha racter owned by persons all over t he state, and, in our judgmen t, it is neither loc al nor speci al, but general in purpose and detail, an d most effective for securing to the state the revenue it seeks to collect.

. . . It may be a fact that Jefferson [C ] ount y is th e only county in the state having a population in excess of 75,000, bu t th e s tatute in q uestion would apply to all counties of th at class within the state [.]
Id . at 398

. Simila rly , in Sims v. Board of Ed ucation of Jefferson C ou nt y , Ky

. , 290
S.W.2d 4 91 (Ky . 1956) , it was held that a statute which applied only t o board s of
edu ca tion in a county containing a city of the first class did not violate Section 59,
because it woul d appl y in any county that in the future contained a city of the first
class. “ While it is not probable that a n o ther ci ty will qualify as a f irst

- cla ss c ity i n Kentucky at any time in the immediate fut ure, nevertheless, it is always possible
and the statu te wou ld then be a pplicable to more than one county. ” Sims , 290
S.W.2d at 495

. T he Sims Co urt ul timately applied the ratio n al basis test that was

re ject ed by Woodall to approve the legislation, stating “ [w] e have long

. . . held that a legislative enactment is not necess arily local nor repugnant to Section 59 of- 22

-

our Kentucky Constitution becau se su c h enactment applies to onl y one class or group of su bjec ts, provided that the classification thus made is not unreasonable nor arbitrary. ” Id . at 495 (citation omitted).

In response, t he Board argues that the challenged legislation does
indeed apply to a par ticular individual , object , or locale, not to a c las s , and that a n express reference to Jefferson County is not required for the legi slation to be special or local . The Board reli es on a more recent opinion, University of
Cumberlan ds v. Pennybacke r , 308 S.W.3d 668 (Ky. 201 0 ) , which ad dressed th e

con sti t uti onality of a b ill providing for the construct ion of a pharmacy school
build ing on the campu s of the University of the Cumberlands, a Baptist college
located in Whitley County. The bil l also provid ed for a Pharmacy Scholars h ip Program to benefit ph a r mac y s tudents “a t a p rivate fo ur (4) year institution of hig her education with a main campus locat ed in an Appalach ian Regional
Commission cou nty

. ” Pennyb acker , 3 08 S.W. 3d at 671

. “ No party to this litigation has questioned that the sole institution whi ch w oul d 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 c onc l u s ion

. . . that the Pharma cy S chola rship Progr am was intende d only for students attending the anticipated UC Ph armacy School

. ” Id . at 683

- 84.- 23

- Of key importance i s the Woodall Court ’ s stateme nt that even though
the Pennyback er Court applied the s upe r s e ded S choo test in determinin g tha t the
le gi sla tion at issue was unconstitutional , it “ reached [ the ] correct re sult since the statute applied to [ a ] particular object. ” Woodall , 607 S.W.3d at 573 n. 19. Under Pennybacker and Woodall , an expres s refer enc e to a particula r locale is not an essential p rerequisite to fin d ing a v i o l a t i o n o f S e c tion 59 ; a description that can apply to only one individual, object , or local e may be sufficient

. The Woodall
Court directly addressed concerns that by abando ning t he Sc hoo test it was enabling l egislators “ to draf t around the Secti on 59 prohibition by avoiding express
refere nce to a specifi c person, entity or locale but articulating criteria for a statute ’ s application tha t as a practical matter only a specifi c pers on, e ntity or locale can satisfy, essentially reve r ting to the ways of the 1870s and 1880s

. ” Woodall , 607
S.W.3d at 573. A ccording to Wood all , [ t ] he answer to this objection is that Kentucky ’ s courts, in that pre

- 1891 Constitution period, had only just beg un to a pply the “exclusive, sep a rate” privilege prohibition o f the Bill of Righ ts to evaluate class or partial legislation, and to equate t hat section with equal protection. Over the last 130 years, courts have had experience with the analysis and have sh ow n l itt le hesitancy in engagin g a more rigorous analysis wit h respect to class ification legislation.
Id

.- 24

- W oodall en dorse s the development of a more rigorous analysis under
Section 59 , to address legislat ion drafted to avoid the Section 59 prohibi tio n but nonetheless applying t o o n ly on e specific individual, o bject , or locale

. T hus, the
fact that the challenged legi slation does not e xpressly name the Jefferson County
school district is not automatically dispos it ive of th e constitutional question

.

The interpretation and c onstr u ction of a statute are concer ned primarily with legislative intent

. Miller v. Bunch , 657 S.W.3d 890, 894

- 95 (Ky. 2022); Shawnee Telecom Res ources , I nc. v. Brow n , 35 4 S.W.3d 542, 551 (Ky. 2011). “ [O] ur first guiding prin cip le in statutory construction is to ascertain and
effectuate l egislative intent

. ” Mar tin v. Warrior Coal LLC , 617 S.W.3d 391, 394 (Ky. 2021)

. T he unmistak able intent of the legisl ature in this ca se was to
ameliorate problems specific to Jeffer son Coun ty

. The Senate President ’ s amicus
brief sta te s that the purpose be hind the legislation was to address concerns that the
Jefferson Count y P ublic School System ( JCPS ) was “ failing to o many of its

stu dents, especially stu dents of color and those living below th e p overty leve l. ”
The brief d escrib es con cer ns expressed i n the media and by the p ublic th at the se proble ms were attribut able in part t o micromanagement of JCPS by its Board . Th e
brief outlines a subsequent attempt by the Kentucky B oard of Education t o g iv e greater power to the S upe r intendent of JCPS , which culm inated in a settlement- 25

-

a greement from which JCP S was ultimately released by the Commissioner in
2020. The gap in studen t achievement pe rsisted, however. The brief state s that

“ [a] gainst this b ack dr o p, it is hardly su r pri s i n g that the 2022 General Assemb ly
enacted the sign ifica nt management reforms in S.B. 1 which, like the proposed

st ate takeover, allow the superintend en t to function as a chief executive off i cer,
with JCBE [ the Jefferson County Bo ar d ] functioning more like a boa rd of
directors. ” By the Sen ate President ’ s o wn admission , t he challenged prov isions

were intended to address the unique problems of the J efferso n Co unty school
district

. T his conclusion is supported by State Repres ent at ive 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 s ubstitute that we discussed actually in committee to day. The first one is a request with regards to Jeffer son C o unty which had done some t hings differently

– had gotte n some approval t o do so me things differently. T hey had the largest board in the state of Kentucky. The re was at times a power struggle th at existed betwe en the board and the superintendent and ho w the day

- to

- day operations w ould be able to run. So, thi s lang uage was br ought t o us and asked to be added into t his as a house committee sub to a llow them to co ntinue to do what we belie ve is goo d work in Jeffer son County in trying to deal with that par ti cular issue.- 26

-

Kentucky Gen e ral Assem bly Regular Session/ Debate/ House C hamber s , Part 2 at 5:08 p.m

. , KET ( Mar . 22, 2022) https://ket.org/legislature/archives/2022/regular /
house

- chambers

- part

- 2

- 201 4 53

.

In view of this cl earl y
- stated legislative int en t a n d the Woodall
C ourt ’ s approval of the decision in Pennybacker , we conclude tha t the challenged provisions were intended to apply only to a specific locale, not a class, a nd consequently are local o r special legislation which i s prohibited un der Secti on s 5 9

a nd 60 of t he Kentucky C onstitution. The c ircuit court ’s holding that the provisions also viol ate the state ’ s eq ual protect ion cla use is consequently moot and
will n ot b e addressed here

. CONCLUS I ON

For the foregoing reaso n s, the circuit court ’s o rd er holding that the challenged provision s of S.B. 1, now co dified 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 prohi bition against special and l ocal legisl ation is affirmed

.

ALL CONCUR.- 27

-

B RIE F S FO R APPEL LA N T:
Victor B. Maddox Deputy Attorney General
Matthew F. Kuhn Solicitor General Frankfort, Kentucky
ORAL ARGUMEN T FO R APPELLANT:
Victor B. Maddox Deputy Atto rney Gener al
Matthew F. Kuhn Solicitor General Frankfort, Kentucky
A MICUS BRIEF FILED FOR SE NAT OR ROBERT S TIVERS, IN HIS OFFICIAL CAPACIT Y AS PRES IDENT OF TH E SENATE:
David Fleenor Frankfort, Kentucky
Sher yl G. Sny der Lou isville, Kentucky BR IEF FOR APP ELLE E JEFFERSON COUNTY BOARD OF E DUCATION :
Dav id Tachau Katherine Lacy Crosby Amy D. Cubba ge Louisvill e , K e n tucky
BR IEF FOR APPELLEE JASON E

. GLASS, COMMISS IONER OF EDUCATION : Ashley Lant F rankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE JEFFERSON COUNTY BOARD OF EDUCATION :
David Tachau Katherine Lacy Crosby Amy D. Cubba ge Louisville , K e n tu cky