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COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT

ELECTRONICALLY FILED CIVIL ACTION NO. 21-CI-00288

HOLLY JOHNSON, in her official capacity as Secretary of the Finance and Administration Cabinet & ANDY BESHEAR, in his official capacity as Governor of the Commonwealth of Kentucky PLAINTIFFS v. MEMORANDUM IN SUPPORT OF

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ALLISON BALL, in her official capacity as Kentucky State Treasurer DEFENDANT

* * * * * * * * * * * * * * * *

SUMMARY OF ARGUMENT

The Plaintiffs lack standing to bring the present case, and even if they did possess standing,

the issues raised in their Complaint are not ripe for determination. Further, the procedural posture

of the case is such that any decision issued on the merits would be an impermissible advisory

opinion, and would also necessarily violate the constitutional avoidance doctrine. Any decision on

the merits of the Complaint needs to await such time as when there are plaintiffs with standing,

presenting an actual contract, with a concrete, factual record for review.

Should this Honorable Court deem a ruling on the merits to be appropriate, the Plaintiffs

should not be afforded the relief sought in the Complaint. The procedure used by the General

Assembly to pass the legislation is constitutionally sound. Finally, the Plaintiffs cannot meet the

high burden necessary to show that Senate Bill 165 is facially unconstitutional, the process set

forth in the bill fully comports with the provisions of our Constitution related to separation of

powers.

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TABLE OF CONTENTS

SUMMARY OF ARGUMENT ...........................................................................................1 TABLE OF CONTENTS ...................................................................................................2

I. FACTUAL BACKGROUND .............................................................................................3

II. STANDARD OF REVIEW ...............................................................................................6

III. ARGUMENT

A. JUDICIAL PRINCIPLES OF CONSTITUTIONAL AVOIDANCE, STANDING, RIPENESS & THE PROHIBITION AGAINST ISSUANCE OF ADVISORY OPINIONS REQUIRE JUDGMENT BE ENTERED AGAINST THE PLAINTIFFS .................................................................7 1. RULING ON THE MERITS OF THE PLAINTIFFS CLAIM WOULD VIOLATE

THE CONSTITUTIONAL AVOIDANCE DOCTRINE ...............................................7 2. THE PLAINTIFFS LACK STANDING TO BRING CLAIMS REGARDING

THE PROCEDURE & SUBSTANCE OF SB 165 ....................................................11 a. Finance Secretary Johnson Lacks Standing .......................................12 b. Governor Beshear Lacks Standing.....................................................14

3. THE COMPLAINT IS NOT RIPE FOR ADJUDICATION ..........................................17 4. THE PLAINTIFFS SEEK AN ADVISORY OPINION ...............................................19

B. THE PROCEDURES UTILIZED BY THE GENERAL ASSEMBLY DID NOT VIOLATE THE

CONSTITUTION .....................................................................................................20

C. SB 165 DOES NOT VIOLATE THE GOVERNOR’S “SUPREME EXECUTIVE POWER” UNDER § 69 OF THE KENTUCKY CONSTITUTION ...................................................21

D. SB 165 DOES NOT LIMIT THE GOVERNOR’S ABILITY TO “FAITHFULLY EXECUTE”

THE LAWS OF THE COMMONWEALTH ....................................................................25

E. THE PLAINTIFFS CANNOT SUCCEED IN SHOWING THAT SB 165 VIOLATES THE SEPARATION OF POWERS PROVISIONS OF THE KENTUCKY CONSTITUTION ...........26

IV. CONCLUSION ...............................................................................................................27

EXHIBITS

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I. FACTUAL BACKGROUND

The factual record in this case is hardly in dispute as, due to the Plaintiffs’ rapid resort to

the court system, there is no factual record beyond the enactment of the legislation itself.1

A. GENERAL BACKGROUND OF BILL

Senate Bill 165 passed the Senate on March 4, 2021. After passing the Senate, SB 165 was

sent to the House of Representatives. After a first reading on March 12, 2021, the bill was sent to

the Local Government Committee where, on March 15, 2021, a Committee Substitute and Title

Amendment were approved. A true and accurate copy of SB 165, with the Committee Substitute

and Title Amendment is attached hereto as Exhibit A. The bill then received its second reading in

the House. On the same day, a Local Government Mandate Statement was prepared by LRC staff

and posted along with the Committee Substitute and Title Amendment. A true and accurate copy

of the Local Government Mandate Statement is attached hereto as Exhibit B. This document

reflects the anticipated fiscal impact of the amended SB 165 on local governments. On March 16,

2021, the bill received a third reading, and passed with the Committee Substitute and Title

Amendment. The same day, it was sent to the Senate for concurrence, and the Senate concurred.

A true and accurate copy of the vote history for SB 165 is attached hereto as Exhibit C.

On March 24, 2021, eight (8) days after the passage of the bill, the Governor vetoed SB

165. The Governor’s veto message raised issues largely duplicative of those raised in the present

suit. A true and accurate copy of the veto message is attached hereto as Exhibit D. On March 29,

2021, almost two (2) weeks after SB 165 passed the House and Senate, both chambers voted to

override the Governor’s veto.

1 The legislative history of SB 165 is available at https://apps.legislature.ky.gov/record/21rs/sb165.html (last visited May 10, 2021).

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B. OVERVIEW OF GOVERNMENT CONTRACT REVIEW COMMITTEE & SB 165

The Committee Substitute and Title Amendment introduced in the House Committee

added, inter alia, an amendment to KRS 45A.705, related to the Government Contract Review

Committee (“GCRC”). The GCRC reviews a wide range of personal service contracts and tax

incentive agreements. For example, in the months of December 2020, through February 2021,

contracts were reviewed for a wide range of entities, including: Attorney General; Auditor of

Public Accounts; Board of Accountancy; Council on Postsecondary Education; Eastern Kentucky

University; Kentucky Higher Education Student Loan Corporation (KHESLC); Kentucky Lottery

Corporation; Kentucky Retirement Systems; Legislative Research Commission; Northern

Kentucky University; University of Kentucky; University of Louisville; and, Western Kentucky

University.2

If after review, the GCRC “determines that the contract service or agreement, other than

an emergency contract approved by the secretary of the Finance and Administration Cabinet or his

or her designee, is not needed or inappropriate…the committee shall attach a written notation of

the reasons for its disapproval or objection…to the secretary of the Finance and Administration

Cabinet.” KRS 45A.705(5). Under current practice, when the GCRC returned its objection or

disapproval to the Finance Secretary, the Finance Secretary was given three options: (1) revise the

contract or agreement “to comply with the objections of the committee;” (2) cancel the contract or

agreement; or (3), decide that the contract or agreement should remain in effect as the secretary of

the Finance and Administration Cabinet (“Finance Secretary”). SB 165 operates to change the

2 Full minutes and meeting materials for the GCRC are available at https://apps.legislature.ky.gov/moreinfo/Contracts/homepage.html (last visited May 10, 2021).

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Finance Secretary’s options, leaving the first and second unchanged, and modifying the third to

read that the recommendations of the GCRC:

(c) Be appealed within ten (10) days to the State Treasurer, who shall make a final determination within ten (10) days of receipt of the appeal of whether the personal service contract, tax incentive agreement, or memorandum of agreement shall:

1. Be revised to comply with the objection of the committee; 2. Be canceled and, if applicable, payment allowed for services already

rendered under the contract or amendment; or 3. Remain effective as originally submitted

Exhibit A at pg. 6. Under SB 165 therefore, the Finance Secretary retains the power to amend or

cancel the contract or agreement. If the Finance Secretary does not desire to amend or cancel, the

Finance Secretary can provide the contract or agreement to the Treasurer. The Treasurer is then

permitted to determine whether to amend, cancel, or leave the contract or agreement as originally

presented. The Treasurer is not bound by the recommendation of the GCRC.

C. PLAINTIFFS BRING SUIT AGAINST THE TREASURER

On April 9, 2021, Finance Cabinet Secretary Holly M. Johnson, and Governor Andy

Beshear brought suit against Defendant Treasurer Allison Ball, seeking to prevent SB 165 from

going into effect. No contracts have been recommended for modification, revision, or rejection

by the GCRC, and no contracts have been appealed to the Treasurer under the new provisions of

45A.705(c). Per the agreement of the parties, the Treasurer now brings this Motion for Summary

Judgment, seeking a ruling from this Honorable Court that the Plaintiff’s suit should be dismissed.

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II. STANDARD OF REVIEW

The Plaintiffs have chosen not to wait until there was an actual controversy, by waiting for

a contract to be reviewed by GCRC, and subsequently appealed to the Treasurer for determination,

through the process set forth in the revisions to 45A.705(c). Rather, they have chosen to bring a

challenge that must be interpreted as a “facial challenge” to the constitutionality of SB 165.

There is a “strong presumption of constitutionality accorded legislative enactments.”

Delahanty v. Commonwealth ̧558 S.W.3d (Ky. App. 2018). For this Honorable Court to afford

the Plaintiffs the requested relief, it must find that the challenged statute is “unconstitutional in all

its applications.” Commonwealth v. Claycomb, 566 S.W.3d 202, 210 (Ky. 2018) (citations

omitted); Sabri v. United States, 541 U.S. 600 (2004). By design, this is a weighty standard to

meet. "It is a well-established principle that a facial challenge to a legislative Act is . . . the most

difficult challenge to mount successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid." Commonwealth v. Bredhold, 599

S.W.3d 409, 415-16 (Ky. 2020) (emphasis added) citing Harris v. Commonwealth, 338 S.W.3d

222, 229 (Ky. 2011) (internal citations omitted). In the Harris case, the Kentucky Supreme Court

rejected a facial challenge to a criminal statute, because it found that the statute operated in a

constitutional manner for a certain class of offenders, “[t]hus, the statute is constitutional under

that set of circumstances, and cannot withstand a facial constitutional challenge.” Harris, 338

S.W.3d at 229. The fact that the Plaintiffs could posit a set of circumstances where SB 165

operates in an unconstitutional manner is insufficient to meet the heavy burden required to succeed

in a facial challenge. United States v. Salerno, 481 U.S. 739, 745 (1987).

In order for summary judgment to be appropriate herein, the Plaintiffs must, therefore,

establish that under all circumstances, the provisions of SB 165 operate unconstitutionally.

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III. ARGUMENT

A. JUDICIAL PRINCIPLES OF CONSTITUTIONAL AVOIDANCE, STANDING, RIPENESS & THE PROHIBITION AGAINST ISSUANCE OF ADVISORY OPINIONS REQUIRE JUDGMENT BE ENTERED AGAINST THE PLAINTIFFS

The Plaintiffs are exceedingly eager to have this Court issue an opinion on issues of

paramount constitutional importance. This undue interest in speedily obtaining a ruling that would

go to the heart of the separation of powers, including the day-to-day functioning of the General

Assembly, ignores fundamental tenets of judicial review, and doctrines that have been established

to prevent the unnecessary and premature review of constitutional claims.

Specifically, the constitutional avoidance doctrine, the prohibition on advisory opinions,

as well as the requirements that plaintiffs have standing to present claims that are ripe for review,

all counsel strongly against the resolution of this matter on the merits. While these issues intersect

and intertwine at various junctures, particularly in their consistent admonition against unnecessary

review of major constitutional provisions, a separate discussion of each is warranted.

1. RULING ON THE MERITS OF THE PLAINTIFFS’ CLAIMS WOULD VIOLATE THE CONSTITUTIONAL AVOIDANCE DOCTRINE

Underlying the entirety of this discussion is the very real concern that any decision entered

herein would be a violation of the constitutional avoidance doctrine. The Plaintiffs have brought

a broad challenge, wholly unmoored from any set of operative facts, and totally devoid of even the

most skeletal record related to a single actual contract presented to the Government Contract

Review Committee (GCRC) and the Treasurer for consideration. When such a speculative claim

is brought, the resulting opinion must, by necessity, be written in broad strokes, filled with general

pronouncements regarding the nature of the Constitution and interactions between our three

branches of government.

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The Kentucky Supreme Court, as well as the United States Supreme Court, have strongly

condemned such speculative claims. Writing little more than a decade ago, the highest court in the

Commonwealth wrote: “We note that the long-standing practice of this Court is to refrain from

reaching constitutional issues when other, non-constitutional grounds can be relied upon.

Furthermore, we appreciate that a proper respect for the legislative branch obliges us to assume

the constitutionality of legislative enactment. Therefore, we must not reach a constitutional issue

if other grounds are sufficient to decide the case.” Baker v. Fletcher¸204 S.W. 3d 589, 597-98 (Ky.

2006); see also Pearson v. Callahan, 555 U.S. 223, 241 (2009) (“The Court will not pass upon a

constitutional question although properly presented by the record, if there is also present some

other ground upon which the case may be disposed of.”).

In 2012, the Court further examined the so-called “constitutional avoidance doctrine” by

citing a unanimous United States Supreme Court decision, opining: “[T]wo of the most

fundamental rules applied by the courts when considering constitutional challenges are ‘one, never

to anticipate a question of constitutional law in advance of the necessity of deciding it; the other,

never to formulate a rule of constitutional law broader than is required by the precise facts to which

it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to

follow them closely and carefully.” W.B. v. Commonwealth¸388 S.W.3d 108, 113 (Ky. 2012) citing

Liverpool, New York & Philadelphia S.S. Co. v. Commissioners, 113 U.S. 33, 39 (1885) (emphasis

added). Consideration of theoretical cases and writing unavoidably speculative opinions on the

general nature of government is “the antithesis of judicial restraint.” Sheryl Snyder & Robert

Ireland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal

and Historical Analysis of L.R.C. v. Brown¸73 Ky. L.J. 165, 190 (1984). In such situations, the

cases end up often “unnecessarily [opening] several new constitutional issues.” Id.

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Fortunately, this Honorable Court is not invariably doomed to having to broadly opine on

general issues of legislative procedure and the distribution of powers amongst Kentucky’s

constitutional officers. The Plaintiffs have, far too rapidly, brought a request to this Court to rule

upon an issue that, quite simply, is not an “issue” at this time. The Plaintiff’s Complaint is based

in only theory and generalizations on the law. Such pontifications are best relegated to the

classroom, not the courtroom. This Court deals in cases, based upon concrete facts and patterns,

not theorization regarding what “may” occur if a set of particular future speculations manifest into

tangible action.

The sort of facial challenges brought by the Plaintiffs are of particular constitutional

concern because they “often rest on speculation. As a consequence, they raise the risk of

‘premature interpretation of statutes on the basis of factually barebones records.’” Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008) citing Sabri v. United States,

541 U.S. 600, 609 (2004). Challenges such as the one brought by the Plaintiffs “threaten to short

circuit the democratic process by preventing laws embodying the will of the people from being

implemented.” Wash. State Grange, 552 U.S. at 609. In our Commonwealth, the will of the people

increased the majority-party’s representation in the Legislature following the 2020 election, and

that Legislature has acted on the will of the people. In the bill which has draw the Plaintiffs’ ire

herein, the Legislature has even overridden the Governor’s veto, after taking time to consider the

very objections that the Governor has raised herein.

To specifically apply the logic of the United States Supreme Court in the Washington State

Grange case, the 2021 General Assembly was enacting laws that embodied the will of the people

of Kentucky. The actions of the 2021 General Assembly were, therefore, largely attributed to the

will of the people acting through a Legislature that was convened with a mandate to respond to the

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Governor’s actions. To allow the Governor’s speculative complaint to override the will of the

people as embodied within the clear directive of the Legislature, before a single contract has been

reviewed, is to go outside the bounds of prudence and judicial restraint that are the foundational

benchmarks of the power of judicial review. Rewarding the Governor’s premature run to the court

system is to allow him to shirk the results of an election that did not go his way, and to obtain

through the legal system what he was unable to accomplish at either the ballot box or through the

use of his veto power.

The entirety of this case must be viewed through the lens of the constitutional avoidance

doctrine. Rather than seeking to reach the merits, it is the well-established and wise practice of

courts within our nation to seek to avoid such weighty issues unless absolutely necessary. See

Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one doctrine

more deeply rooted than any other in the process of constitutional adjudication, it is that we ought

not to pass on questions of constitutionality…unless such adjudication is unavoidable.”)

(emphasis added). Particularly in the case sub judice, the Plaintiffs’ claims strike at the heart of

the General Assembly’s management of its own affairs, as well as the distribution of powers within

the Executive Branch. As with the triumvirate of governmental powers cases decided in the 1980s,

a slight miswording in any decision on the constitutional powers can lead to unnecessary confusion

and can multiply future litigation. See Snyder & Ireland, supra, 73 Ky. L.J. 165, 190 (1984)

discussing Ex Parte Auditor of Public Accounts¸609 S.W.2d 682 (Ky. 1980); Brown v. Barkley,

628 S.W.2d 616 (Ky. 1982); Legislative Research Com. by Prater v. Brown, 664 S.W.2d 907 (Ky.

1984).

When faced with wholly speculative claims, such as those raised by the Plaintiffs, it

becomes more likely that any decision will be open to wide and broad interpretation on core

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constitutional issues, raising the specter of further litigation. This unfortunate result can be easily

avoided by refusing to rule on the merits of the claims, until the procedural posture, supported by

a record of material, operative facts, demands that such a ruling be made.

2. THE PLAINTIFFS LACK STANDING TO BRING CLAIMS RELATED TO THE PROCEDURE AND SUBSTANCE OF SB 165

Any party seeking redress in the courts of the Commonwealth must have standing to do so.

The separation of powers doctrine is a core consideration in the vigorous enforcement of the

standing doctrine. A leading constitutional scholar, noting the prescient words of the late-Justice

Antonin Scalia, has opined that “the standing doctrine promotes separation of powers by restricting

the ability of judicial review.” Chemerinsky, Federal Jurisdiction, p. 57 4th ed. (Aspen 2003)

citing Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of

Powers, 17 Suffolk L. Rev. 881 (1983) (“disregard [of the standing doctrine] will inevitably

produce – as it has during the past few decades – an overjudicialization of the processes of self-

governance.”).

Justice Scalia’s exhortation from nearly four decades ago appears more prophecy than

premonition. The fear of “overjudicialization” has fully manifested itself in Kentucky’s political

and legal landscape. Plaintiff Beshear’s term as Attorney General saw an unprecedented number

of suits from the Attorney General against the prior gubernatorial administration. Now that

Plaintiff Beshear has moved into the role of Governor, he has continued an unabated stream of

lawsuits against popular and widely-supported legislation.

Since neither of the Plaintiffs are imbued with any unique, constitutional standing that

gives them broad authority to challenge any law, they must meet the traditional standing

requirements as set forth in well-established precedent. In order for a party to bring suit in the

courts of the Commonwealth, “the plaintiff must have the requisite constitutional standing, which

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is defined by three requirements: (1) injury,3 (2) causation, and (3) redressability.” Overstreet v.

Mayberry, 603 S.W.3d 244, 252 (Ky. 2020). The Plaintiffs cannot show that they have suffered

actual, concrete injuries due to the passage of SB 165.

To find that the Plaintiffs have met the traditional standing argument in this case would be

to grant the Governor limitless standing to challenge statutes, a power that would, at first glance,

appear to completely overlap with the unique position of the Attorney General. The Governor

seems to assert that he has the authority to bring suit to question any statutory enactment that has

any impact on the Executive Branch and the distribution of statutory authority therein. This

misapprehends the fundamental role of the Governor as enforcing Kentucky’s laws.

The reasons that each of the Plaintiffs lacks standing will be examined in turn.

A. Finance Secretary Johnson Lacks Standing The Finance Secretary is not a constitutional officer, and has no inherent powers vested

within her position that are not granted by the Legislature. Indeed, the Legislature could choose to

abolish the Finance Cabinet and the position of Finance Secretary, in its current form, altogether.

It is a creation of statute, living by the pen of the legislature, and it could be abolished with the

same instrument. There is, therefore, no cognizable “injury” in the legislature altering the powers

granted to the Finance Secretary, because it is wholly within their prerogative to do so.

As noted in paragraphs 26, 47 and 48 of the Complaint, the Secretary is statutorily named

as the “chief financial officer” and “chief purchasing officer” of the Commonwealth. [Complaint,

3 The standing, ripeness and advisory opinion issues are closely related, illustrated in the Kentucky Supreme Court’s recent description of ripeness as “asking whether there is sufficient injury to meet Article III’s requirement of a case or controversy and, if so, whether the claim is sufficiently mature, and the issues sufficiently defined and concrete to permit effective decisionmaking by the court.” Commonwealth v. Bredhold, 599 S.W. 3d 409, 418-19 (Ky. 2020) citing Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995).

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¶¶ 26, 47-48]. Apparently, the Secretary’s role as “chief financial officer” and “chief purchasing

officer” are the grounds for standing. These terms are not to be found in the Constitution, for the

simple reason that they are statutory titles, the scope of duties for each are fully and wholly

dispensed and removed by the legislature as that body sees fit.

The Finance Secretary only has the power to sign contracts that was given by the

legislature. Standing requires that a “party plaintiff must have a real, direct, present, and substantial

right or interest in the subject matter of the controversy.” Winn v. First Bank of Irvington¸581

S.W.2d 21, 23 (Ky. App. 1978). The Finance Secretary has no right to relief in this case as the

Finance Secretary has no “substantial right or interest” in the duties that have been transferred.

The Legislature has chosen to modify, in a very limited way, a statutory duty that it placed in the

Finance Cabinet. To find standing for the Finance Secretary in this instance would be to provide

standing for every executive official who has had a duty transferred or altered by statute to come

to this Court requesting that the transferred duty be restored to them.

The Legislature could, if it chose to do so, transfer the specific duty of reviewing

recommendations of the GCRC to any number of other persons or offices. The Finance Cabinet

Secretary coming to this Honorable Court claiming that it was a violation of her “right to final

review of contracts” for the duty to be invested in another Executive Branch official is a clearly

fruitless venture. This is because the Finance Cabinet Secretary has no “real, direct, present, and

substantial right or interest” in the final review of all contracts that go before the GCRC.

The Finance Secretary, therefore, has no inherent, defensible, constitutional right to sign

off on contracts reviewed by the GCRC. As will be more fully discussed with the Governor’s

standing, infra, to the extent that the Finance Secretary claims the transfer of duties will lead to

“interference” with the completion of her duties, this argument is far too speculative and remote

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to constitute grounds for standing. Overstreet, supra, 603 S.W. 3d at 252. In short, the only

“injury” claimed by the Finance Secretary is the loss of a statutory power, one in which she has no

legally-defensible interest.

B. Governor Beshear Lacks Standing Like with the Finance Secretary, the Governor’s standing in this matter would need to be

premised on an actual, cognizable injury, as the Governor has no inherent power to bring a

declaratory action regarding the general permissibility of any statute.

An well-known case from the past several years serves as a good example of why the

Governor lacks standing to bring this action. As Attorney General, now-Plaintiff Beshear

promoted the power and role of the Attorney General as the executive tasked with the monitoring

and oversight of Kentucky’s statutes and constitution. Citing KRS 15.020, then-Attorney General

Beshear argued that “[T]he Attorney General, as the chief law officer of the Commonwealth, has

the standing to institute any action he believes is necessary to protect the public’s interest.”

Commonwealth’s Motion for Summary Judgment at p. 22, Commonwealth ex. rel. Beshear v.

Bevin, Franklin Circuit Court 16-CI-389 (April 26, 2016). In that case, the Supreme Court

ultimately found that the Attorney General has standing to bring suit regarding executive and

legislative actions. Commonwealth ex rel. Beshear v. Bevin, 498 S.W. 3d (Ky. 2016) “Because the

Attorney General is the chief law officer of the Commonwealth, he is uniquely suited to challenge

the legality and constitutionality of an executive or legislative action as a check on an allegedly

unauthorized exercise of power.” Id. at 365 (emphasis added). As a contrast, the Kentucky

Supreme Court specifically noted in the aforementioned case that individual legislators did not

have standing to challenge particular actions of the Governor, specifically noting that the

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legislators “unlike the Attorney General…do not have the role of chief legal officer for the public.”

Id. at 367.

Per inherent powers, statutes and precedent, the Attorney General is the executive official

within the Commonwealth whom our Constitution, legislature and courts have vested with the

generalized power to challenge statutes that are not in conformity with Kentucky’s law and

constitution. Pursuant to statute:

The Attorney General is the chief law officer of the Commonwealth of Kentucky and all of its departments, commissions, agencies, and political subdivisions…and shall also commence all actions or enter his appearance in all cases, hearings, and proceedings in and before all other courts, tribunals, or commissions in or out of the state, and attend to all litigation and legal business in or out of the state required of him by law, or in which the Commonwealth has an interest, and any litigation or legal business that any state officer, department, commission, or agency may have in connection with, or growing out of, his or its official duties, except where it is made the duty of the Commonwealth’s attorney or county attorney to represent the Commonwealth.

KRS 15.020 (emphasis added). Inherent constitutional powers aside, the express language of KRS

15.020 deposits the role of chief law officer squarely within the Attorney General’s office, except

when a Commonwealth’s attorney or county attorney is given standing on behalf of the

Commonwealth.

In contrast, the Commonwealth’s highest court has, in the past, referred to the Governor as

the “chief civil officer” of the Commonwealth. Franks v. Smith¸134 S.W. 484, 487 (Ky. 1911). It

is noteworthy that nowhere in KRS 15.020 is there any mention of the Governor being given a

general grant of authority to pursue perceived constitutional violations. The reason is simple: there

is no constitutional authority for the Governor to bring generalized suits regarding the

constitutionality of statutes, and the General Assembly has not seen fit to imbue the office with

the statutory power to do so. Brown v. Barkley, 628 S.W. 2d 616, 621 (Ky. 1982) (“to the extent

that the Governor has any implied or inherent powers in addition to those the Constitution

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expressly gives him, it seems clear that such unexpressed executive power is subservient to the

overriding authority of the legislature.”).

Since the Governor does not have a general right to pursue perceived constitutional flaws

in any statute enacted by the Legislature, he must have traditional, particularized standing in

connection with SB 165. The Governor has no cognizable, legal right to maintain any particular

duty that is not given to him by a specific provision of the Kentucky Constitution. “The Office of

Governor exists to faithfully execute the laws enacted by the General Assembly. Thus, the

executive branch is an agent of the law.” Synder & Ireland, supra at 204. The law, as modified

by SB 165, now provides that the final review of contracts that GCRC has called into question will

be made by the Treasurer rather than the Finance Secretary. This represents the Legislature’s

decision to disburse power amongst the various executive branch officers, which “provide

convenient receptacles for the diffusion of executive power.” Brown, 628 S.W. 2d at 622.

The Governor’s role is to execute the laws of the Commonwealth. The Governor has no

cognizable interest in the particular manner in which the statute sub judice operates or was enacted.

The Complaint throws about generalized claims about separation of powers and executive

supremacy, but cannot articulate an actual, legally cognizable injury, other than the institutional

pride of the Governor’s Office in not having anyone potentially question any actions in which the

Governor may choose to take an interest. To find that the wounded ego of the Governor is sufficient

to establish legal standing would be to stretch the doctrine far beyond its historical bounds, and to

welcome a torrent of litigation from any office holder whose perceived domain has been

encroached upon by legislative enactment.

Again, this interaction between the powers of the legislative and executive branches is

unavoidably at issue in determining the merits of this case. The United States Supreme Court has

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wisely counseled that “[O]ur standing inquiry has been especially rigorous when reaching the

merits of the dispute would force us to decide whether an action taken by one of the other two

branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20

(1997). Both the Governor and the Finance Secretary lack standing to bring this action, and it

should be summarily resolved on that issue. To fail to do so would venture into dangerous

constitutional waters regarding the precise mechanisms of legislative enactments, and the

separation of powers between the Governor, the Legislature, and the State Treasurer. Such

weighty considerations should not be taken up lightly, and indeed they have been rarely handled

in detail by the Kentucky Supreme Court for precisely the concerns raised herein.

3. THE COMPLAINT IS NOT RIPE FOR ADJUDICATION

To the extent that the Plaintiffs can succeed in showing they have standing to bring this

action, an analytically distinct doctrine that prevents this matter from being heard on the merits is

the “ripeness” requirement. The Kentucky Supreme Court has noted the basic rationale underlying

this doctrine is one of preventing “the courts, through the avoidance of premature adjudication,

from entangling themselves in abstract disagreements.” W.B. v. Commonwealth ̧388 S.W. 108,

114 (Ky. 2012) citing Abbott Labs v. Gardner¸387 U.S. 136 (1967) abrogated on other grounds

by Califano v. Sanders¸430 U.S. 99 (1977).

“Ripeness accordingly prevents courts from interfering with legislative enactments until it

is necessary to do so, and thus enhances the quality of judicial decision-making by ensuring that

cases present courts an adequate record to permit effective review and decision-making.” W.B. v.

Commonwealth ̧388 S.W. at 114. Facts provide needed precision and clarity to a legal dispute,

permitting the courts to address constitutional issues with a “well-developed…record by which we

may understand the actual, as opposed to the hypothetical and abstract, application of the process

under review.” Id. Indeed, the ripeness requirement is such a strong tool of judicial restraint, that

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the court may raise the issue on its own motion. Id. citing Local 36 Intern. Ass’n of Firefighters v.

Rubin¸999 A.2D 891, 896 (D.C. 2010).

A review of the Government Contract Review Committee minutes for recent months

reflects that very few contracts are ultimately objected to by the committee. Out of thousands of

contracts reviewed by the GCRC, only a handful are ever the subject of any dispute. In addition,

the nature of the entities and officers whose contracts are reviewed likewise militates against the

idea that the present matter is ripe for adjudication. In recent months, the GCRC has reviewed

contracts for all constitutional officers, the Legislative Research Commission, the Kentucky

Lottery Board, and all the state universities, among others. The constitutional implications of the

Treasurer utilizing the SB 165 process to review a contract involving the Legislative Research

Commission, the Auditor or even the Treasury itself, present a far different set of facts, and

possibly implicate several different issues, far different from those raised in the present Complaint.

A stark example of the seriousness with which the Kentucky Courts apply the ripeness

doctrine can be seen in the recent decision of Commonwealth v. Bredhold, 599 S.W. 3d 409 (Ky.

2020). In that case, the Kentucky Supreme Court found that several individuals, who were all

facing prosecutions where the death penalty could be applied, lacked standing, and could not show

that their claims were ripe, where they had not actually been convicted and sentenced to death.

The Bredhold Court found that these claims would be ripe for adjudication “only when, if ever,

one or more of these Appellees is convicted and a jury recommends the death penalty.” Id. at 423.

Until that time, the court found, the matter would not be ripe for adjudication, and the court would

be operating without a fully developed record.

Likewise, in the present case, the Plaintiffs act as if they have already suffered harm, and

that the record is sufficiently established to rule on such weighty constitutional issues such as the

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scope of executive power, separation of powers, and the constitutional minutiae of the legislative

process. Such issues should not be taken up lightly. In short, unless and until a contract is actually

subjected to the process set forth in SB 165, this matter is not ripe for adjudication.

4. THE PLAINTIFFS SEEK AN ADVISORY OPINION

The final “procedural” or “prudential” bar to hearing this case is the prohibition on advisory

opinions contained within the Kentucky Constitution. This requirement is closely related to the

“case or controversy” requirement contained within Article III of the United States Constitution.

Our courts were not established to issue theoretical opinions, but to resolve actual, concrete

legal disputes between interested parties. The Kentucky Supreme Court has held that courts should

not take actions “unless the alleged controverted questions are justiciable ones, and which do not

include abstract legal questions designed merely to furnish information to the inquirer.”

Commonwealth v. Crow, 92 S.W.2d 330 (Ky. 1936). Kentucky’s court system is no different, and

our Constitution limits access to the courts to those who have suffered an “injury,” Ky. Const. §

14, and also limits the jurisdiction of the circuit courts to “justiciable causes” Ky. Const. § 112(5).

In the context of declaratory judgments, such as that sought by the Plaintiffs herein, the Kentucky

Supreme Court has affirmed that “declaratory judgment statutes are available to resolve ‘only

rights and duties about which there is a present actual controversy presented by adversary

parties.’” Appalachian Racing, LLC v. Family Trust Found. Of Ky., Inc., 423 S.W.3d 726, 734

(Ky. 2014) citing Black v. Elkhorn Coal Corp., 26 S.W.2d 481, 483 (Ky. 1930) (emphasis added).

The changes to KRS 45A.705 anticipated by SB 165 have not gone into effect, and the

Plaintiffs have not even remotely suffered any harm. The Plaintiffs seem merely to seek an

advisory opinion out of generalized fears that they could, in the future, have some negative

consequence as a result of the change in process. This is a remote fear, based on theoretical

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concerns about the future, and is a far cry from a “justiciable cause” that can be brought before

this court for adjudication.

B. THE PROCEDURES UTILIZED BY THE GENERAL ASSEMBLY DID NOT VIOLATE THE CONSTITUTION

The Plaintiffs’ Complaint maintains that the passage of SB 165 violated provisions of the

Kentucky Constitution requiring three readings of bills, as well as the “single-topic” and

“germaneness” requirements of Section 51. Both of these contentions are without merit and,

moreover, threaten to upend years of legislative and executive reliance upon the processes set forth

by Kentucky’s legislature.

The provisions of our Constitution related to multiple readings were “to ensure that every

legislator had a fair opportunity to fully consider each piece of legislation that would be brought

to a vote.” Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 93 (Ky. 2018). In the present

case, the changes to SB 165 in committee occurred prior to the day on which the bill received its

final reading, this included a title amendment. The Complaint makes much of the specific order

in which the chamber choose to read and vote upon each particular item, but this “error” is

elevating form over substance. Due to the availability of electronic records, including items such

as the Local Government Mandate Statement, individual legislators have instant access to bill text,

analysis of the bills, as well as the amendments, committee substitutes, and title amendments.

It is almost unfathomable to consider how many existing laws would be subject to

constitutional infirmity if the Plaintiffs’ reading of Sections 46 and 51 were to be accepted. The

procedures utilized for SB 165 have been widely known and practiced for years, and the various

“defects” pointed out by the Plaintiffs would represent an unnecessary and dangerous incursion of

the judicial branch into the technical, inner workings of the General Assembly. As the Kentucky

Supreme Court has noted:

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Legislative or executive construction of constitutional provisions adopted and acted on with the acquiescence of the people for many years is entitled to great weight with the courts and where not manifestly erroneous, it will not be disturbed. The injustice that would inevitably result by the disturbing of such constructions after a long period of acquiescence therein during which many rights will necessarily have been acquired, is a very strong argument against it.

Kraus v. Kentucky State Senate¸872 S.W.2d 433, 438 (Ky. 1993). In the present case, the members of the General Assembly had ample opportunity to review

the Committee Substitute and Title Amendment prior to voting on the bill. In contrast to the case

of Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 93 (Ky. 2018), the legislators also had

a period of nearly two weeks from the bill’s passage to review the bill, and the Governor’s veto,

before coming back to vote on whether to override the veto. To the extent that any concerns exist

regarding whether the members had sufficient opportunity to consider the bill, it should be noted

that several members changed their votes by the time that they considered the Governor’s veto.

Quite simply, to accept the Plaintiffs’ arguments regarding the three-reading and “single-

topic” requirements would be to venture into waters that could have massive, unforeseeable

consequences for any number of existing laws. As discussed supra, the constitutional avoidance

doctrine, among other prudential concerns, strongly cautions against ruling on such an issue that

goes to the core of the constitutional powers and processes of the General Assembly.

C. SB 165 DOES NOT VIOLATE THE GOVERNOR’S “SUPREME EXECUTIVE POWER” UNDER

SECTION 69 OF THE KENTUCKY CONSTITUTION

The Plaintiffs argue that the very limited scenario in which the Treasurer is provided

authority under SB 165 is a violation of Section 69 of the Kentucky Constitution, which vests

“supreme executive power” with the Governor. The Plaintiffs’ reading of the Governor’s powers

under Section 69 is far too broad and would represent a major increase in the Governor’s powers

beyond what any court has previously provided.

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In the case of Brown v. Barkley, the Kentucky Supreme Court enunciated the “powers and

duties expressly conferred upon” the Governor as follows:

1. He is the commander-in-chief of the military forces and affairs of the state. Const. Sec. 75.

2. He may fill vacancies in office except as otherwise provided by the Constitution. Const. Sec. 76.

3. He may remit fines and forfeitures and grant reprieves and pardons. Const. Sec. 77.

4. 4. He may require written information from the officers of the Executive Department upon any subject relating to the duties of [**13] their respective offices. Const. Sec. 78.

5. He shall from time to time report the state of the Commonwealth to the General Assembly and recommend to it such measures as he deems expedient. Const. Sec. 79.

6. He may call the General Assembly into special session and may adjourn the General Assembly for a period not exceeding four months if its two Houses cannot agree upon an adjournment. Const. Sec. 80.

7. "He shall take care that the laws be faithfully executed." Const. Sec. 81.

Brown v. Barkley, 628 S.W.2d 616, 621 (Ky. 1982). The Brown Court noted that “if it be postulated

that the chief executive does possess implied or ‘inherent’ powers, they would be subordinate to

statute.” Id. at 623. Mindful that the Plaintiffs have brought a facial challenge to SB 165, for this

Honorable Court to afford the Plaintiffs the requested relief, it must find that the challenged statute

is “unconstitutional in all its applications.” Commonwealth v. Claycomb, 566 S.W.3d 202, 210

(Ky. 2018).

The case of Royster v. Brock, 79 S.W.2d 707 (Ky. 1935), is particularly instructive as to

the limits imposed upon the Governor’s authority, and how narrowly the Governor’s “supreme

executive power” is interpreted. In that case, Governor Ruby Laffoon was absent from the state

on February 6, 1935, and Lieutenant Governor A.B. Chandler, acting as governor, issued a

proclamation convening the General Assembly in extraordinary session to begin on February 8.

Governor Laffoon returned to the state on the morning of February 7, and issued a proclamation

revoking Chandler’s call of an extraordinary session, and seeking to “enjoin and direct” the

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members of the General Assembly from convening. On February 9, Senator Hiram Brock brought

an action against the Clerk of the Senate, Byron Royster, to require the Clerk to issue payment for

Sen. Brock’s mileage to Frankfort for the called session.

The Commonwealth’s highest court ruled that Governor Laffoon lacked the power to

“rescind” Chandler’s opportunistic call of the extraordinary session.

It is appellants' contention that the right and power to revoke a proclamation convening the General Assembly rests with the Governor until the General Assembly meets and organizes for business. The correct determination of the question requires an examination of the powers of the Governor, their source and extent. The office of Governor is unknown to the common law. It is the title universally applied to the head of the executive department of a state, but in every instance the office is created by the State Constitution. Section 69 of our Constitution creates the office of Governor and vests in him the supreme executive powers of the commonwealth. He has only such powers as the Constitution and Statutes, enacted pursuant thereto, vest in him, and those powers must be exercised in the manner and within the limitations therein prescribed.

Royster, 79 S.W.2d at 708-709. The Royster Court closely examined the exact parameters of

Section 80 of the Kentucky Constitution, and noted that the Governor is granted the express power

to convene an extraordinary session. The court refused to support Governor Laffoon’s reading of

Section 80, which would have permitted him to revoke the call prior to the General Assembly

actual going into session. The Court noted that the particular power to call the Legislature into

extraordinary session “has been intrusted [sic] to the Governor by the Constitution, and that

instrument measures the extent and limit of his power and authority.” Id. at 711. Therefore, since

the Constitution did not give him a general power of revoking a proclamation to enter into

extraordinary session, the Governor did not have such a power.

Royster is one of many examples where Kentucky courts have narrowly construed the

Governor’s powers under the Constitution. The Plaintiffs’ arguments herein would run directly

contrary to the entire jurisprudential history of interpretation of our Constitution. The Governor

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desires to turn Section 69 into an overriding provision, which makes any “executive” function the

constitutionally dedicated sole province of the Governor’s office. This is a wildly expansive view

that finds no favor in the constitution or case law. Indeed, to accept the Plaintiffs’ position would

be to find that the implied or inherent power to have final say over all contracts involving any

entities that are subject to the Government Contract Review Committee is a “supreme executive

power” which cannot be infringed upon. At the same time, one would have to note the extremely

narrow reading of express powers, such as the one set forth in Royster. The incongruity of such a

narrow reading of an express power, and a broad reading of an implied power is both illogical and

dangerous, as it sets precedent for the Governor to achieve through implication what was denied

to him in the text of the Constitution.

Our Constitution and precedent firmly establish that the General Assembly has the power

to disburse executive powers that are not constitutionally dedicated to the Governor to the other

constitutional officers. For example, the Treasury runs the Unclaimed Property Division, which

consists of hundreds of millions of dollars of funds which are kept with the Treasury for safe-

keeping, and returned to claimants via a process that is run through the Treasury itself. See KRS

393A.010 et seq. The deposit, maintenance and payment of these funds is surely an “executive”

function, and it occurs wholly outside the control and purview of the Governor. To accept the

Plaintiffs’ argument herein regarding the overwhelming scope of the Governor’s Section 69

powers would be to require all other constitutional officers to submit every “executive” function

to the Governor for final approval, if the Governor desires that they do so, and any legislation to

the contrary would be infringing upon his “supreme authority.” This would be, to say the least,

both an unwarranted and unprecedented expansion of the Governor’s powers.

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D. SB 165 DOES NOT LIMIT THE GOVERNOR’S ABILITY TO “FAITHFULLY EXECUTE” THE LAWS OF THE COMMONWEALTH

The Plaintiff’s Fifth Claim is based upon a provision requiring that the Governor faithfully

execute the laws of the Commonwealth. Contrary to the Plaintiffs’ assertion, SB 165 providing

that the Treasurer has the ability to review certain contracts, in limited instances, does not prevent

the Governor from faithfully executing the laws, any more than the duties of the Auditor and the

Attorney General prevent the Governor from complying with his Section 81 obligations.

The logic promoted by the Plaintiffs under this argument would necessitate a finding that

any other state official, of any kind, who is given any type of oversight or ability to review any

Executive Branch actions is unconstitutionally impeding the Governor’s ability to “faithfully

execute” the laws. Indeed, the logic would suggest that any court attempting to review

gubernatorial action is violating Section 81 by the very action of forcing the Governor to come to

court to explain his actions. The inconvenience of litigation is, no doubt an “interference” as that

term is utilized by the Plaintiffs.

In this instance, the Governor is failing to faithfully execute the provisions of SB 165. The

Governor’s duty is to execute the law as written. Our Commonwealth is a democracy, and the

ability of democratically-elected officials to question gubernatorial pronouncements is a

fundamental aspect of our laws and constitution. To accept the Governor’s argument that

questioning his actions is impermissible is to equate Section 81 with an authorization of

authoritarianism, wherein the citizens of the Commonwealth are to rely upon the unchecked,

benevolent goodwill of their leader as he “faithfully executes” what he sees fit.

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E. THE PLAINTIFFS CANNOT SUCCEED IN SHOWING THAT SB 165 VIOLATES THE SEPARATION OF POWERS PROVISIONS OF THE KENTUCKY CONSTITUTION

Finally, the Plaintiffs’ claim that SB 165 violates Kentucky’s separation of powers doctrine

must invariably fail, particularly as the Plaintiffs have brought a facial challenge to SB 165. “There

is a strong presumption of constitutionality which is afforded to any enactment of the General

Assembly.” Jefferson Co. Police Merit Bd. v. Bilyeu, 634 S.W.2d 414 (Ky. 1982).

The General Assembly has the power to grant, deny, or transfer powers away from the

Governor, except for those very few issues that are constitutionally mandated to remain within his

purview. For example, the General Assembly has the power to decide the manner in which

contracts are to be entered. It is not an impermissible infringement upon the Governor to mandate

the manner and method of contracting. Commonwealth v. Whitworth¸74 S.W.3d 695, 700 (Ky.

2002) (“Legally enforceable contracts with the state are to be in writing.”). Likewise, the Supreme

Court has found that Kentucky’s separation of powers doctrine was not violated by the power to

consent to gubernatorial appointees. Kraus v. Kentucky State Senate¸872 S.W.2d 433 (Ky. 1993).

SB 165 does not violate the separation of powers doctrine, as it does not provide for the

GCRC to infringe upon executive power. The GCRC has not taken upon itself an executive

function, but remains in purely an advisory role; the Treasurer may ultimately choose to agree or

disagree with the recommendation of the GCRC, as the Finance Secretary may do under the current

version of 45A.705. Any argument to the contrary is a conflation of the earlier arguments that the

Treasurer’s role violates the “supreme executive power” of the Governor. In short, the GCRC’s

role is not changed by SB 165, and there is no violation by the GCRC continuing to serve in an

advisory capacity.

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IV. CONCLUSION

WHEREFORE, the Defendant prays for the following relief:

1. That Summary Judgment be entered against the Plaintiffs, with no relief granted on their

Complaint;

2. Any additional relief to which the Defendant may be entitled.

Respectfully submitted this the 10th day of May, 2021. /s/ Noah R. Friend Noah R. Friend General Counsel Allison Ball, Kentucky State Treasurer 1050 U.S. Hwy 127 S, Suite 100 Frankfort, KY 40601 Phone. (502) 564-4722 Fax. (502) 564-6545 noah.friend@ky.gov COUNSEL FOR DEFENDANT ALLISON BALL, KENTUCKY STATE TREASURER

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CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing was electronically filed this

the 10th day of May, 2021. I further certify that the following parties were served electronically

or via first-class mail, postage prepaid:

Hon. Amy Cubbage Hon. Marc Farris Hon. Travis Mayo Hon. Taylor Payne Hon. Laura Tipton Office of the Governor 700 Capitol Ave, Suite 118 Frankfort, KY 40601 Counsel for Plaintiff Andy Beshear Hon. William Long, Jr. Finance & Administration Cabinet 702 Capitol Ave, Suite 392 Frankfort, KY 40601 Counsel for Plaintiff Holly Johnson

/s/ Noah R. Friend Noah R. Friend