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

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0964-MR

DANIEL CAMERON, ATTORNEY

GENERAL, ON BEHALF OF 

THE COMMONWEALTH OF

KENTUCKY APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE CHARLES L. CUNNINGHAM, JUDGE

ACTION NO. 22-CI-002816

JEFFERSON COUNTY BOARD

OF EDUCATION AND DR. JASON E.

GLASS, IN HIS OFFICIAL CAPACITY

AS COMMISSIONER OF 

EDUCATION APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.

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

education bill, Senate Bill (S.B.) 1, entitled “an Act relating to education and 
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declaring an emergency.”

1

 Section 3(2) of S.B. 1, codified in Kentucky Revised 

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

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

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

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

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

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

declaratory judgment in Jefferson Circuit Court, contending that five specific

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

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

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

clause found in Section 2 of the Kentucky Constitution. 

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

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

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

provisions survive constitutional scrutiny under Sections 59 and 60 because they

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

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

protection.

1

2022 Ky. Acts ch. 196, S.B. 1.
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Upon careful consideration, we hold that the Board had standing to 

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

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

Sections 59 and 60 of the Kentucky Constitution.

I. FACTUAL AND PROCEDURAL BACKGROUND

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

as follows: 

(2) For a county school district in a county with a 

consolidated local government adopted under KRS 

Chapter 67C:

(a) A local board of education shall:

1. Delegate authority to the superintendent

over the district’s day-to-day operations and 

implementation of the board-approved 

strategic plan in a manner that promotes the 

efficient, timely operation of the district, 

including but not limited to the authority 

over contracts related to daily operations of

the district, pupil transportation, personnel 

matters, and the organizational structure of 

administrative staff;

2. Except as expressly required by statute, 

including subparagraphs 3. and 5. of this 

paragraph, not meet more than once every 

four (4) weeks for the purpose of approving 

necessary administrative matters[.]

KRS 160.370(2)(a)1., 2. 
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(b) Notwithstanding any provision to the contrary in 

subsection (1) of this section, the superintendent shall:

2. Prepare all rules, regulations, bylaws, and

statements of policy for approval and adoption by 

the board, with approval not to be withheld 

without a two-thirds (2/3) vote of the board to 

deny approval or adoption; [and]

. . . .

5. Notwithstanding any law that assigns an 

administrative duty, responsibility, or authority to 

a board of education, or other law to the contrary,

be responsible for any administrative duty not 

explicitly granted to the board under paragraph (a) 

of this subsection[.]

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

(c) If the county adopts the provisions of the Kentucky 

Model Procurement Code, the board shall authorize the 

superintendent to approve purchases, in accordance with 

small purchase procedures adopted by the board, for any

contract for which a determination is made that the 

aggregate amount of the contract does not exceed two 

hundred fifty thousand dollars ($250,000). The board 

shall authorize the superintendent to approve a line-item 

transfer within its annual budget as she or he deems 

necessary, provided that the aggregate amount of any 

individual transfer does not exceed two hundred fifty 

thousand dollars ($250,000). The superintendent shall 

provide a quarterly report to the board on any purchases 

made under this subsection.

KRS 160.370(2)(c).

To summarize, the provisions that are being challenged require the 

school board to give the superintendent authority over the “day-to-day operations 
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and implementation of the board-approved strategic plan”; require the board to 

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

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

superintendent; require the board to grant the superintendent responsibility for 

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

the board to authorize the superintendent to make purchases not exceeding 

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

approval.

As previously stated, the Jefferson County school district is currently 

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

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

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

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

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

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

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

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

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

the legislation. 
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The circuit court conducted a hearing at which the Commissioner 

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

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

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

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

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

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

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

the challenged provisions. 

The Jefferson Circuit Court entered a declaratory judgment holding 

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

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

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

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

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

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

actively trying to enforce the contested provisions once this declaratory judgment 

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

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

became effective. Upon unopposed motion by the Board, the circuit court entered 
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a motion to amend the judgment to clarify the specific provisions of S.B. 1 to 

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

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

amicus curiae brief defending the legislation.

II. STANDARD OF REVIEW

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

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

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

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

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

III. ANALYSIS

i. The Board had standing to challenge the statutory provisions

The Attorney General argues that the Board lacked constitutional 

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

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

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

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

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

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

courts of this Commonwealth.’” Id. (quoting Commonwealth Cabinet for Health
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& Family Services, Department for Medicaid Services v. Sexton by & through

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Attorney General argues that the Board failed to prove the 

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

injure the Board by transferring some of its powers to the Superintendent, the 
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Board cannot show that the Commissioner caused that injury or that the Court can 

redress that injury by granting relief against the Commissioner. 

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

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

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

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

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

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

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

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

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

contrast, plaintiffs who challenged the constitutionality of the Education

Opportunity Account Act as impermissibly redirecting state revenues to public

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

Administration Cabinet and the Commissioner of the Kentucky Department of 

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

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

2022).

Kentucky law in this respect mirrors the federal standard, which 

provides that “when a plaintiff brings a pre-enforcement challenge to the
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constitutionality of a particular statutory provision, the causation element of 

standing requires the named defendants to possess authority to enforce the 

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

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

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

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

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

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

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

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

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

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

(internal quotation marks and citation omitted). 

The Board argues that the Commissioner, the chief state school 

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

contested statutory provisions are enforceable only by the Commissioner, as 

provided in KRS 156.210, which states:

2 The Commissioner is appointed by the Education Management Selection Commission “to carry 

out the duties of the chief state school officer.” KRS 156.147(2).
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(1) The chief state school officer shall have access to the 

papers, books and records of all teachers, trustees, 

superintendents, or other public school officials.

(2) He may administer oaths and may examine witnesses 

under oath in any part of the state in any matter 

pertaining to the public schools, and may cause the 

testimony to be reduced to writing. He may issue process 

to compel attendance of witnesses before him and 

compel witnesses to testify in any investigation he is

authorized to make.

(3) When he or his assistants find any mismanagement, 

misconduct, violation of law, or wrongful or improper 

use of any district or state school fund, or neglect in the 

performance of duty on the part of any official, he shall 

report the same, and any other violation of the school 

laws discovered by him, to the Kentucky Board of 

Education, which shall, through the chief state school

officer or one (1) of his assistants, call in the county 

attorney or the Commonwealth’s attorney in the county 

or district where the violation occurs, and the attorney so

called in shall assist in the indictment, prosecution, and

conviction of the accused. If prosecution is not 

warrantable, the Kentucky Board of Education may 

rectify and regulate all such matters.

KRS 156.210.

The Attorney General argues that the challenged statutory provisions 

do not provide the Commissioner with sufficient enforcement powers to create 

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

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

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

contends that KRS 156.210(3) cannot make up for the Commissioner’s “lack of 
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role” and that any fear he will choose to enforce the statutory provisions is “pure 

conjecture.” 

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

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

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

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

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

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

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

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

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

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

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

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

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

The Attorney General contends that because the challenged legislation 

does not contain any specific internal provision empowering the Commissioner to 

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

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

supra, a case in which the plaintiffs claimed the Patient Protection and Affordable 
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Care Act, which required them to purchase minimal essential health insurance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

insurance. 

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

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

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

via criminal proceedings or referral to the state Board, which is responsible for 
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“the management and control of the common schools and all programs operated in 

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

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

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

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

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

and executing such a proceeding. 

The Attorney General argues that Superintendent Pollio is nonetheless 

free to follow the challenged provisions without any interference from the 

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

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

provisions after they are declared unconstitutional.

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

Commissioner possesses sufficient enforcement powers to meet the causation and

redressability elements of the Lujan test. 

ii. The Superintendent was not a necessary party

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

should be dismissed because Superintendent Pollio was a necessary party under 

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

Declaratory Judgment Act.
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CR 19.01 provides in pertinent part that 

[a] person who is subject to service of process, either 

personal or constructive, shall be joined as a party in the 

action if (a) in his absence complete relief cannot be 

accorded among those already parties, or (b) he claims an 

interest relating to the subject of the action and is so 

situated that the disposition of the action in his absence 

may (i) as a practical matter impair or impede his ability 

to protect that interest or (ii) leave any of the persons 

already parties subject to a substantial risk of incurring 

double, multiple, or otherwise inconsistent obligations by 

reason of his claimed interest. If he has not been so 

joined, the court shall order that he be made a party. If 

he should join as a plaintiff but refuses to do so, he may 

be made a defendant, or, in a proper case an involuntary 

plaintiff. 

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

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

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

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

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

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

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

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

naming him as a party. 

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

General did not intervene in the lawsuit and become a party, choosing instead to 
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enter an appearance to defend the constitutionality of the challenged provisions, he 

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

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

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

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

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

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

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

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

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

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

App. 2007).

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

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

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

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

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

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

review of his argument that the Superintendent was a necessary party. 
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The express language of the challenged provisions requires action on 

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

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

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

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

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

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

the Superintendent responsible for any administrative duty not explicitly granted to 

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

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

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

legislation

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

challenged legislation violates the prohibition against special or local legislation 

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

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

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

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

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

S.W.3d 866, 873 (Ky. App. 2022), discretionary review denied (Aug. 16, 2022).
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Sections 59 and 60 first appeared in Kentucky’s fourth and final 

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

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

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

571 (Ky. 2020).

Section 59 expressly forbids local or special legislation relating to the 

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

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

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

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

Section 60 provides that 

[t]he General Assembly shall not indirectly enact any 

special or local act by the repeal in part of a general act, 

or by exempting from the operation of a general act any 

city, town, district or county; but laws repealing local or 

special acts may be enacted. No law shall be enacted 

granting powers or privileges in any case where the 

granting of such powers or privileges shall have been 

provided for by a general law, nor where the courts have 

jurisdiction to grant the same or to give the relief asked 

for. No law, except such as relates to the sale, loan or 

gift of vinous, spirituous or malt liquors, bridges, 

turnpikes or other public roads, public buildings or 

improvements, fencing, running at large of stock, matters 

pertaining to common schools, paupers, and the 

regulation by counties, cities, towns or other 

municipalities of their local affairs, shall be enacted to 

take effect upon the approval of any other authority than 
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the General Assembly, unless otherwise expressly 

provided in this Constitution.

KY. CONST. § 60.

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

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

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

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

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

Kentucky courts mistakenly applied what was essentially an equal protection

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

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

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

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

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

941.

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

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

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

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

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

local legislation prohibited by Sections 59 and 60 if “the statute applies to a
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particular individual, object or locale.” Challenges based on classification, on the 

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

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

The circuit court held that the challenged legislation in this case 

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

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

governance that only exists in Jefferson County. 

The Attorney General argues that the challenged provisions instead 

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

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

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

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

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

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

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

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

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

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

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

under Section 59. For example, in Winston v. Stone, our highest court held that a
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taxation statute applying only to counties with a population greater than 75,000 did 

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

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

Court reasoned that the statute 

operates upon a multitude of property of like character 

owned by persons all over the state, and, in our judgment, 

it is neither local nor special, but general in purpose and 

detail, and most effective for securing to the state the 

revenue it seeks to collect. . . . It may be a fact that

Jefferson [C]ounty is the only county in the state having 

a population in excess of 75,000, but the statute in 

question would apply to all counties of that class within 

the state[.]

Id. at 398. 

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

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

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

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

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

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

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

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

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

that a legislative enactment is not necessarily local nor repugnant to Section 59 of 
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our Kentucky Constitution because such enactment applies to only one class or 

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

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

In response, the Board argues that the challenged legislation does 

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

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

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

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

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

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

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

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

higher education with a main campus located in an Appalachian Regional

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

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

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

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

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

that the Pharmacy Scholarship Program was intended only for students attending 

the anticipated UC Pharmacy School.” Id. at 683-84. 
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Of key importance is the Woodall Court’s statement that even though 

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

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

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

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

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

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

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

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

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

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

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

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

[t]he answer to this objection is that Kentucky’s courts, 

in that pre-1891 Constitution period, had only just begun

to apply the “exclusive, separate” privilege prohibition of

the Bill of Rights to evaluate class or partial legislation,

and to equate that section with equal protection. Over the 

last 130 years, courts have had experience with the 

analysis and have shown little hesitancy in engaging a 

more rigorous analysis with respect to classification 

legislation.

 

Id. 
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Woodall endorses the development of a more rigorous analysis under 

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

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

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

school district is not automatically dispositive of the constitutional question. 

The interpretation and construction of a statute are concerned 

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

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

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

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

(Ky. 2021).

The unmistakable intent of the legislature in this case was to 

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

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

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

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

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

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

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

greater power to the Superintendent of JCPS, which culminated in a settlement 
-25-

agreement from which JCPS was ultimately released by the Commissioner in 

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

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

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

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

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

directors.” 

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

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

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

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

There are three large components that are rolled into one 

committee substitute that we discussed actually in 

committee today. The first one is a request with regards 

to Jefferson County which had done some things 

differently – had gotten some approval to do some things 

differently. They had the largest board in the state of 

Kentucky. There was at times a power struggle that 

existed between the board and the superintendent and

how the day-to-day operations would be able to run. So, 

this language was brought to us and asked to be added 

into this as a house committee sub to allow them to 

continue to do what we believe is good work in Jefferson 

County in trying to deal with that particular issue.
-26-

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

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

house-chambers-part-2-201453.

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

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

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

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

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

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

will not be addressed here.

CONCLUSION

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

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

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

special and local legislation is affirmed. 

ALL CONCUR.
-27-

BRIEFS FOR APPELLANT:

Victor B. Maddox

Deputy Attorney General

Matthew F. Kuhn

Solicitor General

Frankfort, Kentucky

ORAL ARGUMENT FOR 

APPELLANT:

Victor B. Maddox

Deputy Attorney General

Matthew F. Kuhn

Solicitor General

Frankfort, Kentucky

AMICUS BRIEF FILED FOR 

SENATOR ROBERT STIVERS,

IN HIS OFFICIAL CAPACITY 

AS PRESIDENT OF THE SENATE:

David Fleenor

Frankfort, Kentucky

Sheryl G. Snyder

Louisville, Kentucky

BRIEF FOR APPELLEE

JEFFERSON COUNTY BOARD OF 

EDUCATION:

David Tachau

Katherine Lacy Crosby

Amy D. Cubbage

Louisville, Kentucky

BRIEF FOR APPELLEE JASON E. 

GLASS, COMMISSIONER OF 

EDUCATION:

Ashley Lant

Frankfort, Kentucky

ORAL ARGUMENT FOR

APPELLEE JEFFERSON COUNTY

BOARD OF EDUCATION:

David Tachau

Katherine Lacy Crosby

Amy D. Cubbage

Louisville, Kentucky