Motion for Injunction

7/25/2019 Motion for Injunction

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COMMONWEALTH OF KENTUCKY

FRANKLIN CIRCUIT COURT

DIVISION I

CASE NO. 16-CI-00656

THOMAS K. ELLIOTT, et al. PLAINTIFFS

COMMONWEALTH OF KENTUCKY, ex rel. INTERVENING PLAINTIFF

ANDY BESHEAR, ATTORNEY GENERAL

v.

MATTHEW G. BEVIN, GOVERNOR, et al. DEFENDANTS

MOTION FOR INJUNCTIVE RELIEF BY

TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION

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

NOTICE

Please take notice that the Commonwealth will make the following Motion on June 23,

2016, at 2:30 p.m., in Franklin Circuit Court, Division I, at a previously-scheduled hearing.

MOTION

Pursuant to CR 65.01, CR 65.03 and CR 65.04, the Intervening Plaintiff, the

Commonwealth of Kentucky, by and through its duly elected Attorney General, Andy Beshear

(the Commonwealth), moves the Court for injunctive relief by the entry of a temporary

restraining order and a temporary injunction enjoining the Defendants from enforcing or acting

under executive orders that violate the Kentucky Constitution and Kentucky statute. Through the

issuance of the executive orders, the Governor attempts to unlawfully seize the power and

control over the operations, personnel, and finances of these independent Boards, by removing

duly-appointed members of the Boards and replacing them with his own appointees. The

Governor purports to have temporarily reorganized these Boards through KRS 12.028, but his


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orders suspend and re-write Kentucky statutes that govern the Boards, and ignore the mandates

of those statutes. The Governor cannot use KRS 12.028 as a means to eviscerate independent

Boards in violation Kentucky law.

Therefore, the Commonwealth moves this Court to enter a temporary restraining order

and a temporary injunction enjoining the Defendants Matthew G. Bevin (Governor of

Kentucky), William M. Landrum III (Secretary of the Kentucky Finance and Administration

Cabinet), Thomas B. Stephens (Secretary of the Kentucky Personnel Cabinet and member of the

Kentucky Retirement Systems Board of Trustees), Mark W. Lattis, the Kentucky Retirement

Systems, the Kentucky Retirement Systems Board of Trustees (KRS Board), Ulysses Lee

Bridgeman, Jr., Bonita Kay Black, and Ron Wright, M.D. (appointees to the University of

Louisville Interim Board) from taking certain actions pending further Order of this Court as it

relates to the following executive orders: (1) 2016-211, (2) 2016-214, (3) 2016-273, (4) 2016-

340, (5) 2016-338, and (6) 2016-339.

In support of its Motion, the Commonwealth adopts and incorporates by reference the

allegations set forth in the Commonwealths Verified Intervening Complaint for Declaratory

Judgment and Injunctive Relief (Intervening Complaint), as well as the allegations and

arguments set forth in the Plaintiffs Verified Complaint and Motion for Temporary Injunction.

In further support of its Motion, the Commonwealth tenders the following Memorandum of Law.

MEMORANDUM OF LAW IN SUPPORT

OF MOTION FOR TEMPORARY INJUNCTION

This Court should grant the Commonwealths Motion and issue a temporary restraining

order and a temporary injunction to enjoin the Defendants from taking certain actions to enforce

unlawful executive orders that Governor Matthew Bevin issued in violation of the Kentucky law.

As the Intervening Complaint and this Memorandum show, the Commonwealths rights will be


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violated by the actions of the Defendants and will suffer an immediate and irreparable injury

before the Defendants can be heard in opposition. Further, the Commonwealth will suffer an

immediate and irreparable injury pending a judgment on the merits, a substantial legal question

on the merits exists, and the public interest favors injunctive relief after a weighing of the

equities. Thus, pursuant to CR 65.01, CR 65.03 and CR 65.04, this Court should enter a

temporary restraining order and a temporary injunction enjoining the Defendants from enforcing

or acting under Executive Orders 2016-211, 2016-214, 2016-273, 2016-340, 2016-338, and

2016-339.

INTRODUCTION

On June 17, 2016, Governor Bevin issued Executive Orders 2016-338, 2016-339, and

2016-340, purportedly abolishing and re-creating two (2) autonomous Boards under KY.CONST.

69 and 81, and KRS 12.028 and 63.190. Like Executive Order 2016-340, Executive Orders

2016-211, 2016-214 and, 2016-273 relate to the Kentucky Retirement Systems Board of

Trustees. Executive Orders 2016-338 and 2016-339 concern the University of Louisville Board

of Trustees. The executive orders issued on June 17, 2016, were the latest in a string of orders in

which the Governor acted outside of his authority violating the Kentucky Constitution and

Kentucky statute.

I. Executive Orders Relating to the Kentucky Retirement Systems

In Executive Order 2016-340, the Governor abolished, recreated, and restructured

the KRS Board of Trustees. (See Executive Order 2016-340, at p. 3, Exhibit B to

Intervening Complaint.) Citing to KY.CONST. 69 and 81, and to KRS 12.028, the Governor

ordered the KRS Board of Trustees abolished and recreated as the Kentucky Retirement Systems

Board of Directors, which the order established as an agency of state government. (Id., at pp. 3-


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4.) With some exceptions, the order mandated the immediate cessation of the terms of previous

gubernatorial appointees. (Id.) None of the terms of the KRS Board members had expired as of

the date of the order. Under Executive Order 2016-340, the Board of Directors consists of

seventeen (17) members, or trustees as the order continues to refer to the members despite the

intended abolishment of the Board of Trustees. (See, generally, Executive Order 2016-340).

Under KRS 61.645(1), the KRS Board of Trustees consists of thirteen (13) members.

The order provides that the Governor will appoint ten (10) trustees to the Board of

Directors. Executive Order 2016-340, at pp. 4-5. Under KRS 61.645(e), the Governor has

authority to appoint six (6) trustees. In the order, the Governor appointed seven (7) additional

members to the Board of Directors. (Id., at p. 6.)

Under Executive Order 2016-340, the Governor mandates himself to appoint the chair

(John Farris) and Vice Chair (David Eager). Id. Pursuant to KRS 61.645(8)(b), the KRS Board

of Trustees, itself, shall electa chair and a vice chair. As evident by the lack of reference to the

Governor in KRS 61.645(8)(b), the Governor has no role in the democratic process. Executive

Order 2016-340 also requires that the Governor approve the Executive Director the KRS Board

appoints. (Id., at p. 7.) Under KRS 61.645(9)(a), the KRS Board shall appoint or contract for

the services of an executive director, with no approval by the Governor required.

Pursuant to Executive Order 2016-340, ninety (90) days from the date of the order, all

employees of the Kentucky Retirement Systems other than the Executive Director shall be

subject to the state personnel system under KRS 18A.005 to 18A.204. (Id.) The Personnel

Secretary shall determine those employees salaries. (Id.) The order also provides that the

Finance and Administration Cabinet, the Personnel Cabinet, the Governors Office of Policy and


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Management, and all other agencies necessary to effectuate the order shall take all necessary

action to do so. (Id., at p. 8.)

Prior to issuing Executive Order 2016-340, the Governor issued Executive Order 2016-

211 on April 20, 2016. (See Executive Order 2016-211, Exhibit D to Intervening Complaint.) In

that order, the Governor removed the Plaintiff, Thomas Elliott, as a member and the chair of the

KRS Board. (See id.) In that order, the Governor cited to KRS 61.645 and 63.080 as authority

for the removal of Elliott, which occurred prior to the expiration of Elliotts four-year term on

March 31, 2016. The Governor did not provide any cause for Elliotts removal. (Id.)

On April 21, 2016, the Governor issued Executive Order 2016-0214, in which he

appointed William F. Smith, M.D., to serve and replace Elliott as a member of the KRS Board.

(See Executive Order 2016-214, Exhibit E to Intervening Complaint.) The Governor cited to

KRS 61.645 as authority for the appointment. (See id.)

Upon the request of the William Thielen, the Executive Director of the Kentucky

Retirement Systems, and the KRS Board, the Office of the Attorney General issued a formal

opinion regarding the Governors removal of Elliott and appointment of Smith. In OAG 16-

004, the Office of the Attorney General advised that the Governor lacked authority to remove a

trustee at will prior to the expiration of his statutory appointed term, and that Smith did not meet

the requirements of KRS 61.645(1)(e)(5) to serve as a trustee. (SeeOAG 16-004, Exhibit I to

Intervening Complaint.)

After Smith declined to serve on the KRS Board, the Governor, again citing to KRS

61.645, issued Executive Order 2016-273, appointing Mark Lattis to serve as a trustee and to

replace Smith. (See executive Order 2016-273, Exhibit F to Intervening Complaint.) On June

13, 2016, the Office of the Attorney General found that the KRS Board, through the acts of


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trustee Thomas Stephens and third parties from other state governmental entities, had violated

the Kentucky Open Meetings Act at the KRS Boards May 19, 2016 meeting, related in part to

Elliotts intended participation in the meeting as a trustee. (See 16-OMD-124, Exhibit J to

Intervening Complaint.)

II. Executive Orders Relating to the University of Louisville Board of Trustees

On June 17, 2016, the Governor issued executive order 2016-338, citing KY.CONST.

69 and 81, and KRS 12.028 as his authority. (See Executive Order 2016-338, at p. 3, Exhibit C

to Intervening Complaint.) In the order, the Governor abolished the University of Louisville

Board of Trustees and ended the terms of its members. (Id., at pp. 3-4.) The order recreated the

University of Louisville Board of Trustees, with ten (10) members serving on the Board instead

of the twenty (20) members required by KRS 164.821. (See id.) The order required the Council

on Postsecondary Education to meet and provide the Governor with a list of thirty (30)

candidates no later than fourteen (14) days of the date of the order. (Id., at p. 4.)

On the same day, the Governor issued Executive Order 2016-339, citing KY.CONST.

69 and 81, and KRS 12.028, and KRS 63.190 for authority. (See Executive Order, Exhibit A to

Intervening Complaint.) This order purportedly established an Interim Louisville Board

consisting of three (3) members Ulysses Lee Bridgeman, Jr., Bonita Kay Black, and Ron

Wright, M.D. (See Executive Order 2016-339, at pp.1-2.) Again, the order runs contrary to

KRS 164.821, which does not provide for an interim board of any kind whatsoever.

ARGUMENT

In issuing Executive Orders 2016-211, 2016-214, 2016-273, 2016-340, 2016-338, and

2016-339, the Governor exceeded his authority under the Kentucky Constitution and Kentucky

statute. The Governors actions violated the separation of powers doctrine under Sections 27, 28


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and 29 of the Kentucky Constitution, and suspended Kentucky statute in violation of Ky. Const.

15. The Governor also exceeded his authority under Ky. Const. 81, and violated KRS

61.645, KRS 63.080, KRS 164.821, and KRS 12.028. Until the Court decides the substantial

legal questions the Commonwealth raises in this action, a temporary restraining order and a

temporary injunction are necessary to prevent the further violation of Kentucky law by

enforcement of the executive orders, which would irreparably harm the Commonwealth.

I. STANDARDS FOR INJUNCTIVE RELIEF

Pursuant to CR 65.03, [a] party may obtain injunctive relief in the circuit court by (a)

restraining order, (b) temporary injunction, or (c) permanent injunction in a final judgment. A

restraining order must only restrict the doing of an act, while an injunction may restrict or

mandatorily direct the doing of an action. CR 65.01. With regard to a restraining order, CR

65.03(1) provides:

A restraining order may be granted at the commencement of an action, or duringthe pendency thereof, without written or oral notice to the adverse party or hisattorney only if (a) it clearly appears from specific facts shown by verifiedcomplaint or affidavit that the applicant's rights are being or will be violated bythe adverse party and the applicant will suffer immediate and irreparable injury,loss or damage before the adverse party or his attorney can be heard in opposition,and (b) the applicant's attorney certifies to the court in writing the efforts, if any,which have been made to give notice and the reasons supporting his claims thatnotice should not be required.

Further, a restraining order granting injunctive relief against the enforcement of a statute or

ordinance must be directed against the acts of those specific public officials charged with

enforcing the statute or ordinance to enjoin their threatened enforcement. Commonwealth v.

Mountain Truckers Assn, Inc., 683 S.W.2d 260, 263 (Ky. App. 1984) (citing Akers v. Floyd

County Fiscal Court, 556 S.W.2d 146 (Ky. 1977).


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Under CR 65.04(1), a Court may grant a temporary injunction if it is clearly shown by

verified complaint, affidavit, or other evidence that the movants rights are being or will be

violated by an adverse party and the movant will suffer immediate and irreparable injury, loss, or

damage pending a final judgment in the action, or the acts of the adverse party will tend to render

such final judgment ineffectual. The granting of a temporary injunction is within the sound

discretion of the trial court. Maupin v. Stansbury, 575 S.W.2d 695, 697-98 (Ky. App. 1978). A

Court should grant a temporary injunction if the movant shows irreparable injury, the existence

of a substantial legal question on the merits, and a weighing of the equities favor injunctive

relief. Maupin v. Stansbury, 575 S.W.2d 695, 697-98 (Ky. App. 1978).

As the Court explained inMaupin:

Applications for temporary injunctive relief should be viewed on three levels.First, the trial court should determine whether plaintiff has complied withCR65.04by showing irreparable injury. This is a mandatory prerequisite to theissuance of any injunction. Secondly, the trial court should weigh the variousequities involved. Although not an exclusive list, the court should consider suchthings as possible detriment to the public interest, harm to the defendant, andwhether the injunction will merely preserve the status quo. Finally, the complaintshould be evaluated to see whether a substantial question has been presented. Ifthe party requesting relief has shown a probability of irreparable injury, presenteda substantial question as to the merits, and the equities are in favor of issuance,the temporary injunction should be awarded.

575 S.W.2d at 699.

As the movant, the Commonwealth carries the burden of clearly showing these

elements. CR 65.04(1);Maupin, 575 S.W.2d at 698. At a minimum, the rule contemplates that a

mere allegation that irreparable injury will result is insufficient. Rather, (t)he complaining party

must allege and prove facts from which the court can reasonably infer such would be the result.

Id. at 698-99. In a departure from federal jurisprudence, in Kentucky a movant is not required to

show a substantial probability of success on the merits. Id.
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A. The Commonwealths Rights are Being or Will be Violated by the

Defendants and the Commonwealth Will Suffer Immediate and Irreparable

Injury Absent Injunctive Relief.

This Court should grant the Commonwealths request for injunctive relief to enjoin the

Defendants from enforcing the unlawful executive orders. The Defendants enforcement of the

unlawful executive orders will violate the Commonwealths and the Plaintiffs rights. The

Commonwealth and the Plaintiffs are suffering and will continue to suffer immediate and

irreparable injury before the Defendants can be heard in opposition. 1 The Commonwealth and

the Plaintiffs will suffer immediate and irreparable injury prior to a final judgment in this action,

and the acts of the Defendants prior to the entry of a final judgment will render a final judgment

ineffectual.

To show harm, a party must first allege possible abrogation of a concrete right. Maupin,

575 S.W.2d at 698. The movant must make a clear showing that these rights will be immediately

impaired. Id. This means that (a)n injunction will not be granted on the ground merely of an

anticipated danger or an apprehension of it, but there must be a reasonable probability that

injury will be done if no injunction is granted. Hamlin v. Durham, 32 S.W.2d 413, 414 (Ky.

1930) (emphasis added). In the area of temporary injunctive relief, the clearest example of

irreparable injury is where it appears that the final judgment would be rendered completely

meaningless should the probable harm alleged occur prior to trial. Maupin, 575 S.W.2d at 698.

First, the Commonwealth suffers irreparable harm when elected officials violate the

Kentucky Constitution and Kentucky statutes. Such irreparable harm is presumed for

1Simultaneous to the electronic filing of this Motion and Memorandum of Law, the Commonwealth electronically

filed its Verified Complaint, and served both pleadings upon the Defendants. On June 21, 2016, the AttorneyGeneral stated to the public and the media that he would be making an announcement regarding the Governorsexecutive orders on June 22, 2016, and made such an announcement on June 22. In addition, the Plaintiffs filed aMotion for a Temporary Injunction with their Verified Complaint on June 17, 2016, which is tentatively scheduledfor a hearing on June 23, 2016. Thus, the Commonwealth has met notice requirement of CR 65.03(1).


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governmental entities, and the Kentucky Supreme Court recognized and adopted this harm in

Boone Creek Properties, LLC v. LFUCG, 442 S.W.3d 36 (Ky. 2014). There, the Lexington-

Fayette Urban County Government sought injunctive relief against a zip lining company to

prevent it from operating its business during the adjudication of charges of violation of county

zoning ordinances. 442 S.W.3d at 37-38. The trial court granted the injunction. Id.at 38.

Upon review of the Kentucky Court of Appeals denial of the defendants motion for

interlocutory relief, the Supreme Court asked the following question:

whether as a matter of law, the affront to governmental authority presented byan ongoing violation of the law and the enforcing government body's inability to

promptly resolve the violation can be regarded as irreparable harm so as to justifythe issuance of a temporary injunction to halt the violation pending the full andfinal adjudication of the matter.

Id.at 40. In answering that question, the Court wrote:

For a representative government that draws its authority from the respect, goodwill, and consent of the people, rather than by the force of its armed police andmilitary, the ability to promptly eliminate ongoing violations of laws enacted bythe people's representatives is essential to the ability to govern and maintain orderin the community. Its inability to do so is injurious and harmful to the governmentand the community it serves. Consequently, the irreparable harm which wouldoccur in this case in the absence of an injunction is the genuine but intangibleharm relating to the power and right of the county zoning authorities to correctopen violations of the applicable zoning code.

Id.

As the Supreme Court did in Boone Creek Properties, LLC, this Court has recognized

that a potential ongoing violation of the Kentucky Constitution and Kentucky statute necessarily

constitute irreparable harm warranting injunctive relief before final adjudication. SeeLegislative

Research Commn v. Fischer, 366 S.W.3d 905, 909-10 (Ky. 2012) (noting that the Franklin

Circuit issued a restraining order under CR 65.03 pending its decision on a temporary injunction,

then issued a temporary injunction after an evidentiary hearing). See also General Drivers,

Warehousemen & Helpers, et al. v. Matthew G. Bevin, Governor, et al.,Civil Action No. 16-CI-


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552 (Franklin Circuit Court) (granting a temporary restraining order on May 23, 2016, pending a

ruling on a motion for a temporary injunction, and granting a temporary injunction on June 8,

2016, pending a final judgment on the merits of the action) (attached as Exhibits A and B.) As in

those cases, the circumstances of this action warrant injunctive relief to prevent immediate and

irreparable injury to the Commonwealth pending a final judgment on the merits. This Court

should issue a temporary restraining order pending a ruling on a temporary injunction, which the

Court should grant until it reaches a final judgment.

1. Injunctive relief is necessary to prevent irreparable harm resulting

from the executive orders concerning the independent Boards.

This Court should enjoin the Defendants from acting under or enforcing the Governors

unlawful executive orders involving the Kentucky Retirement Systems and its Board of Trustees.

Likewise, the Court should enjoin the Defendants from acting under or enforcing the executive

orders related to the University of Louisville Board of Trustees that the Governor issued in

violation of Kentucky law.

a. The executive orders involving the KRS Board has caused and

will cause irreparable harm to the Commonwealth.

As to Executive Order 2016-340, the Board of Directors it purportedly establishes could

schedule a meeting, and during a meeting could consider, discuss, and take action on certain

matters affecting the Kentucky Retirement Systems, including, but not limited to, the more than

$16 billion in assets it oversees and the more-than-350,000 active, inactive, and retired members

of the pension system who the trustees have a fiduciary duty to serve.

The Board of Directors could appoint a new Executive Director for the Kentucky

Retirement Systems, who the Governor must approve under the order, displacing the current

Executive Director appointed pursuant to KRS 61.645. The Board of Directors would operate


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under a chair and vice chair the Governor, alone, appointed. As a result, the Governor would

have control of the Investment Committee, as the chair appoints members to that committee. See

KRS 61.650(1)(b); KRS 61.650(b)(2).

Additionally, the employees of the Kentucky Retirement Systems could be transferred to

employment under KRS Chapter 18A and their salaries would be subject to the determination of

the Personnel Secretary, who the Attorney General has ruled violated the Kentucky Open

Meetings Act as a member of the KRS Board.

These events would occur even though the executive order that purportedly establishes

the Board of Directors and re-writes the statute governing the KRS Board violates all of the

following: the separation of powers enunciated in KY.CONST. 27, 28 and 29; KY.CONST. 15

by suspending KRS 61.645; KY.CONST. 81; KRS 61.645; KRS 63.080(1); and KRS 12.028.

Such actions by the Defendants would render the final judgment in this action completely

meaningless. Likewise, for the reasons the Plaintiffs raise in their Motion for Temporary

Injunction, allowing Executive Orders 2016-211, 2016-214, and 2016-243 to remain intact

would continue to disrupt the business of the KRS Board. Elliott would be prohibited from

serving as a trustee and face potential arrest if he attempted to act as a trustee, despite the opinion

of the Attorney General that the Governor lacked authority to remove him at will and that the

KRS Boards indication of his arrest in part violated the Open Meetings Act.

A final judgment in this action cannot undo or remedy the actions the Defendants may

take under the executive orders and the harm those actions would cause. The lawfully-appointed

members of the KRS Board will have lost their ability and right to serve as trustees, and carry

out their duties and functions prescribed by KRS 61.645. The Executive Director of the

Kentucky Retirement Systems will have lost his ability and right to serve in that position. The


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employment status and, potentially, the salaries of employees of the Kentucky Retirement

Systems will have been changed. Moreover, the results of the actions of the Defendants and the

resulting disruption of the business of the KRS Board of Trustees will be to the detriment of the

more than 350,000 active, inactive, and retired members of the pension system, and their

beneficiaries, all of whom the Kentucky Retirement Systems and the KRS Board are obligated to

serve. The Trustees have a fiduciary duty to the pension systems. See KRS 61.645(15)(a)-(h).

Absent a temporary restraining order and a temporary injunction, the harm the Commonwealth is

suffering and will suffer cannot be remedied. Thus, no other adequate remedy at law exists.

b. The executive orders as to the UofL Board ofTrustees has caused and will cause irreparable harm.

Just as with the executive orders concerning the KRS Board of Trustees, the orders the

Governor issued regarding the UofL Board violate the Kentucky Constitution and Kentucky

statute. A temporary restraining order and a temporary injunction are necessary to prevent

immediate and irreparable harm to the Commonwealth.

In Executive Orders 2016-338 and 2016-339, the Governor purportedly abolished the

UofL Board of Trustees, and created an interim Board to serve during the time period that the

full Board is vacant. (See Executive Orders 2016-338 and 2016-339.) Executive Order 2016-

338 required the Council on Postsecondary Education to, no later than fourteen (14) days of the

order, meet and provide the Governor with a list of thirty (30) candidates from which he will

choose the ten (10) trustees. (See Executive Order 2016-338.) The order creates a new Board

consisting of ten (10) members, even though the statute governing the Louisville Board of

Trustees, KRS 164.821, requires a Board of seventeen (17) members. (Id.)

In removing the current members of the Louisville Board of Trustees, the Governor

effectively removed all of the members, unilaterally and immediately. The Governors at-will


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removal of Board members violated the clear mandate of KRS 164.821(1)(b) that Board

members may be removed by the Governor for cause, which shall include neglect of duty or

malfeasance in office, after being afforded a hearing with counsel before the Council on

Postsecondary Education and a finding of fact by the council.

The Governors at-will removal also violated the clear mandate of KRS 63.080(2), which

states that members of the board of trustees of the University of Louisville shall not be

removed except for cause. The Governors at-will removal of Board members before the

expiration of their statutory terms also violated KRS 164.821(4). Further, KRS 164.821 does not

allow the establishment or appointment of an interim Board, in any fashion. Consequently, the

Governor violated KRS 164.821 in establishing the UofL Interim Board and appointing three (3)

individuals to serve on it.

The Commonwealth will suffer immediate and irreparably injury if the Defendants

enforce or act under the unlawful executive orders prior to a judgment on the merits. Illustrating

the immediacy that warrants temporary injunctive relief, the University of Louisville is due to

have a budget by July 1, 2016, and the UofL Board is responsible for the universitys finances

under KRS 164A.500. Additionally, Executive Order 2016-338 provides a 14-day timeframe

for the Council on Postsecondary Education to provide the Governor with a list of names of

candidates for the new Board, but does not restrict the Council from providing the list sooner.

The Council could provide those names today, and the Governor could immediately name the

members of the new Board.

In the meantime, the University of Louisville has no Board of Trustees to govern it.

Rather, only a three-person interim Board exists, that is not authorized by any statute and, as a

result, is not governed by any statute. This unlawful interim Board could act as a Board, despite


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its baseless creation. As the UofL Board has a fiduciary duty to the university, the interim Board

could be subjecting itself and its appointees to liability. If the Governor did not immediately

name new trustees, the interim Board would continue to operate without any statutory authority.

Once the Governor would name the new trustees, the Board would number only ten (10), rather

than seventeen (17) as required by KRS 164.821(1).

Through these executive orders, the Governor suspends and re-writes KRS 164.821 in

violation of the separation of powers doctrine enunciated in KY.CONST. 27, 28 and 29, and in

violation of KY.CONST. 15. The Governor exceeds his authority under KY.CONST. 81, and

violates the removal procedure outlined in KRS 164.821(1)(b). The Governor also violates the

mandate of KRS 63.080(2) prohibiting the at-will removal of members of the Louisville Board

of Trustees. This action threatens the University of Louisvilles accreditation by its accrediting

body, the Southern Association of Colleges and Schools, which requires that board members of

accredited institutions may only be dismissed for appropriate reasons and by a fair process. (see

Intervening Complaint, pp. 16-17, 67.) Moreover, the Governors improper reorganization

violates KRS 12.028.

The Defendants enforcement of or actions under the executive orders would render a

final judgment on the merits meaningless. The lawfully-appointed members of the UofL Board

will have lost their ability and right to serve as trustees and carry out their duties and functions

under KRS 164.821, and their powers under KRS 164.830. The public, including the student

body, the faculty, and the employees of the University of Louisville will suffer irreparable harm

that a future judgment cannot remedy. Thus, without a temporary restraining order and a

temporary injunction pending a final judgment on the merits, the harm to the Commonwealth

cannot be remedied.


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2. The balancing of the equities weighs in favor of the granting of

temporary injunctive relief.

A balancing of the various equities involved in this action heavily weighs in favor of the

issuance of a temporary injunction. The relative benefits and detriments should be weighed,

which entails a consideration of whether the public interest will be harmed by the issuance of the

injunction, whether the Defendants will be harmed or whether its effect will merely be to

maintain thestatus quo.Maupin, 575 S.W.2d at 698 (citingKentucky High School Athletic Assn

v. Hopkins, 552 S.W.2d 685 (Ky. App. 1977)).

The public has a strong interest in ensuring that neither the Governor nor the executive

branch invade the legislative power solely reserved to the General Assembly. As the Court wrote

inLegislative Research Commn By and Through Prather v. Brown, 664 S.W.2d 907, 912 (Ky.

1994), the Kentucky Constitution contains provisions which, on the one hand, mandate

separation among the three branches of government, and on the other hand specifically prohibit

incursion of one branch of government into the powers and functions of others. The separation

of powers doctrine is fundamental to Kentuckys government and must be strictly construed.

Brown, 664 S.W.2d at 912 (citing Arnett v. Meredith, 121 S.W.2d 36, 38 (Ky. 1938).2

Furthermore, the Commonwealth has a strong public interest in ensuring that statutorily-

appointed Board members serving fixed terms mandated by statute may so serve without

interference by a sole individual. The public has a strong interest in ensuring that the Governor

cannot unilaterally remove those Board members without authority for removal under KRS

61.645 or KRS 164.821, and in contravention of KRS 63.080(1) and (2). Governing the terms of

2Additionally, Courts nationally recognize that the vindication of constitutional violations is always in the publicinterest. Doe v. Harlan County Sch. Dist., 96 F.Supp.2d 667, 679 (E.D. Ky. 2000) (citingConnection Distrib. Co.v. Reno,154 F.3d 281, 288 (6th Cir. 1998);Dayton Area Visually Impaired Persons, Inc. v. Fisher,70 F.3d 1474,1490 (6th Cir. 1995); G & V Lounge, Inc. v. Michigan Liquor Control Commn,23 F.3d 1071, 1079 (6th Cir. 1994)(it is always in the public interest to prevent the violation of a party's constitutional rights.)).
https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1977136228&pubNum=713&originatingDoc=Ia4eebce3eba911d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1977136228&pubNum=713&originatingDoc=Ia4eebce3eba911d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1977136228&pubNum=713&originatingDoc=Ia4eebce3eba911d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1977136228&pubNum=713&originatingDoc=Ia4eebce3eba911d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1977136228&pubNum=713&originatingDoc=Ia4eebce3eba911d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1977136228&pubNum=713&originatingDoc=Ia4eebce3eba911d9b386b232635db992&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)


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members of the KRS Board, KRS 61.645(3)(a) requires that each trustee shall serve a term of

four (4) years or until his successor is duly qualified. The word shall has been interpreted as

a word of command. Vandertoll v. Commonwealth, 110 S.W.3d 795-95 (Ky. 2003). As the

Court in Vandertoll wrote, [s]hall means shall. Id. Thus, the Governors executive orders

violate this clear statutory mandate.

The executive orders related to the KRS Board of Trustees violate KRS 61.645 and KRS

63.080(1) in removing members of the KRS Board of Trustees without any authority to do so.

Again, KRS 61.645 does not grant the Governor any removal authority. Under KRS 63.080,

except as provided in KRS 63.080(2) or as otherwise provided by law, any person appointed by

the Governor may only be removed from office by the Governor for cause. KRS 63.080(1).

Pursuant to KRS 61.645(6)(b), a member of the KRS Board of Trustees may be removed only

upon conviction of a felony or a finding of a violation of any provision of KRS 11A.020 or

11A.040 by a court of competent jurisdiction.

It is a familiar and general rule of statutory construction that the mention of one thing

implies the exclusion of another. Fox v. Grayson, 317 S.W.3d 1, 8 (Ky. 2010). In interpreting

the provisions of KRS 61.645 with KRS 63.080(1), where there is an apparent conflict between

statutes or sections thereof, it is the duty of the court to try to harmonize the interpretation of the

law so as to give effect to both sections or statutes if possible. Commonwealth v. Halsell, 934

S.W.2d 552, 555 (Ky. 1996). Interpreting KRS 63.080(1) as giving the Governor the authority

to remove members of the KRS Board of Trustees at will would render KRS 61.645(3)(a) and

(6)(b) meaningless. On the other hand, interpreting those provisions of KRS 61.645 as

otherwise provided by law as stated in KRS 63.080(1) would harmonize the statutes and give

effect to all of them. Accordingly, the equities weigh in favor of enjoining the


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Defendants/Respondents from violating KRS 61.645 and KRS 613.080(1) by enforcing or acting

under the unlawful executive orders. The equities also weigh in favor of the Court enjoining the

Defendants from enforcing or acting under an executive order, 2016-340, labeled as a temporary

reorganization plan, but issued in violation of KRS 12.028.

Further, Executive Order 2016-338 violates KRS 164.821 and KRS 63.080(2). The

statute governing the Louisville Board of Trustees requires that the gubernatorial appointments

of the Board shall serve a term of six (6) years and until their successors are appointed and

qualified. KRS 164.821(4). Under KRS 63.080(2), the Governor shall not remove a member

of the UofL Board except for cause. The order improperly removes the members prior to the

expiration of their terms under KRS 164.821. Executive Order 2016-339 creates a three-person

interim Board, even though KRS 164.821 does not provide authority for an interim Board of any

type. Therefore, the equities weigh in favor of the Court enjoining the Governor from ignoring

these clear statutory requirements and unilaterally creating a Board that violates Kentucky law.

The public has a strong interest in ensuring that the Kentucky Retirement Systems and

the KRS Board performs its statutorily-mandated duties and functions without unlawful

interruption. More than 350,000 active, inactive, and retired members of the pension system rely

on the Kentucky Retirement Systems and the KRS Board carrying out its duties and business.

The public also has a strong interest in ensuring that the UofL Board performs its statutorily-

mandated duties without unlawful interruption. The Commonwealth relies on its public

universities and the Boards that govern them in carrying out their duties and business. The

Governors executive orders threaten these strong public interests.

While the public will be harmed if the Defendants/Respondents act under the executive

orders, the Defendants/Respondents will not be prejudiced by temporary injunctive relief. Such


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relief will restore the members of the KRS Board and the UofL Board as they existed prior to the

issuance of the executive orders. The full KRS Board is not scheduled to meet again until

September 8, 2016, allowing plenty of time for the Court to reach a decision on the merits. Thus,

the granting of temporary injunctive relief will not prejudice the Defendants/Respondents.

However, if the Court does not grant temporary injunctive relief, the Defendants may

carry out the executive orders built on baseless legal foundations. Such would put the business

of the Kentucky Retirement Systems and the Board that oversees it, and the more than 350,000

retirees and their beneficiaries, in an uncertain status. It would also irreparably harm the

business of the UofL, which is due to have a budget by July 1, 2016. Currently, there is no UofL

Board of Trustees that complies with KRS 164.821. Without injunctive relief any actions taken

by an unlawfully-created interim Board will greatly prejudice the Commonwealth. Therefore,

temporary injunctive is necessary to restore the status quountil the Court decides the merits of

the action. See Curry v. Livestock Mkt., 343 S.W.2d 134, 135 (Ky. 1961).

3. A substantial legal question on the merits exists in this matter.

As the Commonwealth has shown, a substantial legal question on the merits exists. Just

as the Plaintiffs/Petitioners have shown, the Commonwealth has demonstrated in its Verified

Intervening Complaint the likelihood that it has a substantial possibility of succeeding on the

merits. Norsworthy v. Kentucky Bd. of Medical Licensure, 330 S.W.58, 63 (Ky. 2009). Further,

the Commonwealth has shown that a serious question exists that warrants a trial on the merits.

In issuing Executive Orders 2016-340, 2016-211, 2016-214, 2016-243, 2016-338 and

2016-339, the Governor has clearly exceeded his authority in violation of the Kentucky

Constitution and Kentucky statute. The executive orders violate the clear and important

separation of powers doctrine outlined in the Kentucky Constitution. (See Intervening


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Complaint.) By issuing the executive orders, the Governor has invaded the province of the

legislative power of the General Assembly. As such, his actions violate Sections 27, 28 and 29

of the Kentucky Constitution.

This action raises the substantial legal question as to whether the Governor is exercising

legislative, not executive, power by altering statutes regarding autonomous Boards and its

members without prior legislative approval. See Brown, 664 S.W.2d 907. The orders

unilaterally alter the statutory requirements for the KRS Board under KRS 61.645, as well as the

statutory requirements for the UofL Board under KRS 164.821. These unlawful alterations of

statutory provisions affect the number of trustees to serve on each Board, the number of trustees

the Governor may appoint to each Board, the terms of the trustees of each Board, and the

creation of an interim Board.

As to Executive Order 2016-340, it alters the statutory requirements of KRS 61.645 for

the election of the chair and vice chair of the KRS Board, and gives the Governor the sole

authority to appoint those officers without any input from the Board or trustees. The order alters

the statutory requirements of KRS 61.645 for the appointment of the Executive Director of the

Kentucky Retirement Systems, by requiring the Governors approval of the Board appointee.

Further, the executive orders directly circumvent the statutory procedure for removing a

Board member under KRS 63.080(1) and (2). The Governors removal of trustees prior to the

expiration of their statutorily-fixed terms violates KRS 61.645 and KRS 164.821. The

Governors attempt to paint such at-will removal of trustees from these independent Boards as a

temporary reorganization under KRS 12.028 must fail.

The fundamental principles pronounced in these provisions have just as much application

today as they did when the framers proposed them. [W]e are dealing with our fundamental law.


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It is not outdated, or obsolete, or contrary to any policy we know of. This law today is just as

vital and enforceable as it was the day it was written into the Constitution. Russman v. Luckett,

391 S.W.2d 694, 697 (1965). The structural division of powers of government set forth in the

Constitution can be altered only through amendment, not through executive fiat. Constitutional

provisions, whether operation by way of grant or limitation, are to be enforced according to their

letter and spirit. ... . Commonwealth v. OHarrah, 262 S.W.2d 385, 389 (Ky. 1953). As the

former Kentucky Court of Appeals held shortly after the enactment of the 1891 Constitution, in

rejecting an argument designed to circumvent constitutional requirements for taxation: [i]t

would do violence not only to the intention of the framers of this instrument, but its letter and

spirit, to hold that the system adopted by its provisions could be disregarded, and another

selected. Levi v. City of Louisville, 30 S.W. 973, 976 (Ky. 1895). In issuing his executive

orders, the Governor disregarded KY. CONST. 27, 28 and 29.

In addition, the Governors actions in issuing the executive orders violate his primary

responsibility under the Kentucky Constitution to faithfully execute the laws. KY. CONST. 81.

Rather than faithfully executive the laws, the Governor is violating numerous Kentucky

constitutional and statutory provisions by removing and appointing members of the KRS Board,

and abolishing and recreating a Board of Directors all contrary to KRS 61.645 and KRS

12.028. He violates the same provisions in removing members of the UofL Board, changing the

size of the Board, and creating an interim Board without statutory authority to do so all in

violation of KRS 164.821 and KRS 12.028.

In abolishing and suspending various provisions of KRS 61.645 and KRS 164.821, the

Governors executive orders also violate KY. CONST. 15, which provides the General

Assembly the exclusive power to suspend laws of the Commonwealth. Since KY.CONST. 15 is


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a part of the Bill of Rights, the Governor cannot suspend statutes, even if he possesses

emergency or inherent powers under Sections 69 and 81 of KY. CONST. 69 and 81.

Fletcher v. Commonwealth, 163 S.W.2d 852, 872 (Ky. 2005). The Court inFletcher recognized

that [t]he suspension of statutes by a Governor is also antithetical to the constitutional duty to

take care that the laws be faithfully executed. Id.(quotingKY.CONST. 81).

As shown herein, and in the Verified Complaint and the Verified Intervening Complaint,

each of the executive orders violates various provisions of KRS 61.645 and KRS 164.821. The

Governors purported temporary reorganization of these independent Boards is not designed to

achieve greater economy, efficiency and improved administration, as required by KRS 12.028.

Instead, the orders are designed to suspend and re-write Kentucky statutes, and unilaterally

create Boards that will be to his liking. The Commonwealth raises substantial legal questions

about whether the Governor, by executive order, has the constitutional and statutory authority to

completely remove and replace the KRS Board and the UofL Board in violation of Kentucky

statutory and constitutional provisions.

CONCLUSION

The Court should grant a temporary restraining order and a temporary injunction to

enjoin the Defendants from enforcing or acting under these unlawful executive orders.

Temporary injunctive relief is necessary pending a judgment on the merits. The Commonwealth

has shown that its rights are being or will be violated by the Defendants. The Commonwealth

has demonstrated that it will suffer immediate and irreparable injury, that the balancing of

equities greatly weighs in favor of temporary injunctive relief, and that the Commonwealth has

raised a substantial legal question. The Commonwealth has no adequate remedy at law. The

relief the Commonwealth requests is the only means to mitigate the irreparable harm the


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Commonwealth faces and will face under the executive orders. Wherefore, the Court should

grant the Commonwealths Motion.

Respectfully Submitted,

ANDY BESHEARATTORNEY GENERAL

By: /s/ Mitchel T. DenhamMitchel T. DenhamAssistant Deputy Attorney GeneralLa Tasha Buckner, Executive DirectorOffice of Civil and Environmental Law

S. Travis MayoJoe NewbergAssistant Attorneys GeneralOffice of the Attorney General700 Capitol AvenueCapitol Building, Suite 118Frankfort, Kentucky 40601-3449(502) 696-5300(502) 564-8310 FAX

Counsel for Intervening Plaintiff,

Commonwealth of Kentucky

CERTIFICATE OF SERVICE

I hereby certify the foregoing that a true and accurate copy of the Motion for TemporaryInjunctive Relief by Temporary Restraining Order and Temporary Injunction, and theMemorandum of Law in Support, and the Proposed Order, were served on the individuals whosenames appear on the following Service List by U.S. Mail and by the additional methodsprescribed below on this the 22ndday of June, 2016.

/s/ Mitchel T. Denham

Michel T. Denham


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SERVICE LIST

Hon. M. Stephen PittGeneral CounselOffice of the Governor

The Capitol, Suite 100700 Capitol AvenueFrankfort, Kentucky [email protected] for Defendant Governor Bevinand Defendant Secretary LandrumVia electronic mail, and hand delivery

Bonita K. Black7118 Autumn Bent WayCrestwood, Kentucky 40014

Via U.S. Mail

Ulysses L. Bridgeman, Jr.3309 Collins LaneLouisville, Kentucky 40245Via U.S. Mail

Ronald L. Wright12904 Ridgemoor DriveProspect, Kentucky 40059Via U.S. Mail

Mark Lattis7005 Court of the WoodsLouisville, Kentucky 40241

Secretary Thomas B. Stevens501 High StreetFrankfort, Kentucky 40601Via Hand Delivery

Hon. Dana L. CollinsHon. Kevin L. ChlarsonHon. Katherine T. ReiszMIDDLETON REUTLINGER401 South Fourth Street, Suite 2600Louisville, Kentucky [email protected]@middletonlaw.com
mailto:[email protected]:[email protected]:[email protected]


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[email protected] email

Counsel for Plaintiffs Elliott and Peter

Hon. Brian ThomasGeneral CounselKentucky Retirement SystemsKentucky Retirement SystemsPerimeter Park West1260 Louisville RoadFrankfort, Kentucky 40601Via email
mailto:[email protected]:[email protected]:[email protected]


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COMMONWEALTH OF KENTUCKY

FRANKLIN CIRCUIT COURT

DIVISION I

CASE NO. 16-CI-00656

THOMAS K. ELLIOTT, Individually and PLAINTIFFSIn His Official Capacity as a Member of the Board

of Trustees of The Kentucky Retirement Systems, et al.

COMMONWEALTH OF KENTUCKY, ex r el . INTERVENING PLAINTIFF

ANDY BESHEAR, ATTORNEY GENERAL

v.

MATTHEW G. BEVIN, GOVERNOR, In His Official DEFENDANTS

Capacity as The Governor of The Commonwealth

Of Kentucky,et al .

ORDER

This matter is before the Court on the motion of the Intervening Plaintiff, the

Commonwealth of Kentucky, ex rel. Andy Beshear, Attorney General, by and through counsel,

for Temporary Injunctive relief by Temporary Restraining Order and Temporary Injunction,

pursuant to CR 65.01, CR 65.03, and CR 65.04. The Court having considered the Motion and

the Commonwealths Verified Intervening Complaint, and having heard oral argument on the

Motion, and being otherwise sufficiently advised, the Court finds that the Defendants, Matthew

G. Bevin, William M. Landrum III, Thomas B. Stephens, Mark Lattis, the Kentucky

Retirement Systems, the Kentucky Retirement Systems Board of Trustees, the University of

Louisville Interim Board of Trustees, Ulysses Lee Bridgeman, Jr., Bonita Kay Black, and Ron

Wright, M.D., should be enjoined from enforcing or acting under Executive Orders 2016-211,

2016-214, 2016-243, 2016-340, 2016-338, and 2016-339. The Court finds as follows:

1. The Commonwealths rights are being or will be violated by the actions of the

Defendants;


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2. The Commonwealth will suffer immediate and irreparable injury, loss or damage

pending a final judgment in this action, or that the acts of the Defendants will tend

to render a final judgment ineffectual without the issuance of a temporary

restraining order and a temporary injunction;

3. The balancing of equities weighs in favor of the issuance of a temporary

restraining order and a temporary injunction, and the Commonwealth will suffer

greater injury by the denial of temporary injunctive relief than it would by the

granting of such relief;

4. This action presents a substantial legal question; and

5. The Commonwealth has no adequate remedy at law.

Wherefore, IT IS ORDERED AND ADJUDGED that until further Order of this Court the

Defendants, Matthew G. Bevin, William M. Landrum III, Thomas B. Stephens, Mark Lattis,

the Kentucky Retirement Systems, the Kentucky Retirement Systems Board of Trustees, the

University of Louisville Interim Board of Trustees, Ulysses Lee Bridgeman, Jr., Bonita Kay

Black, and Ron Wright, M.D., are immediately restrained and enjoined from directly or

indirectly enforcing or acting under Executive Orders 2016-211, 2016-214, 2016-243, 2016-340,

2016-338, and 2016-339, whether alone or in concert with others, including any officer, agent,

employee and/or representative of same.

IT IS FURTHER ORDERED that this Order shall be binding upon the Defendants,

and their

agents, employees, employer, and attorneys, and upon those persons that act in

concert or participation with them who receive actual notice of this Order by personal service

or otherwise.


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IT IS FURTHER ORDERED AND ADJUDGED that this Order shall remain in full

force and effect until such time as this Court specifically orders otherwise.

IT IS FURTHER ORDERED AND ADJUDGED that a Temporary Injunction shall

issue immediately and that security should be posted in the amount of $ _____.00, and should

remain in place.

SO ORDERED, this ___ of June, 2016.

________________________________PHILLIP J. SHEPHERD, JUDGEFranklin Circuit Court, Division I


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Tendered by:

_________________________Mitchel T. DenhamAssistant Deputy Attorney General

La Tasha Buckner, Executive DirectorOffice of Civil and Environmental LawS. Travis MayoJoseph A. Newberg, IIAssistant Attorneys GeneralOffice of the Attorney General700 Capitol AvenueCapitol Building, Suite 118Frankfort, Kentucky 40601-3449(502) 696-5300(502) 564-8310 FAX

Counsel for Intervening Plaintiff

Motion for Injunction

Documents

Transcript of Motion for Injunction