Commonwealth ex rel. Beshear v. Bevin, 2017-SC-000647-TG

• Decision Date: 13 June 2019
• Docket Number: 2017-SC-000647-TG
• Citation: 575 S.W.3d 673
• Parties: COMMONWEALTH of Kentucky EX REL. Andy BESHEAR, Attorney General, Appellant v. Matthew G. BEVIN, in His Official Capacity as Governor of Kentucky, Hal Heiner, in His Official Capacity as Secretary of the Kentucky Education and Workforce Development Cabinet, Appellees
• Court: United States State Supreme Court — District of Kentucky

575 S.W.3d 673

COMMONWEALTH of Kentucky EX REL. Andy BESHEAR, Attorney General, Appellant

v.Matthew G. BEVIN, in His Official Capacity as Governor of Kentucky, Hal Heiner, in His Official Capacity as Secretary of the Kentucky Education and Workforce Development Cabinet, Appellees

2017-SC-000647-TG

Supreme Court of Kentucky.

JUNE 13, 2019

COUNSEL FOR APPELLANT: Andy Beshear, Attorney General of Kentucky, La Tasha Arnae Buckner, Assistant Deputy Attorney General, Steven Travis Mayo, Executive Director, Office of Civil and Environmental Law, Matthew James, Laura Tipton, Taylor Allen Payne, Assistant Attorneys General.

COUNSEL FOR APPELLEE MATTHEW G. BEVIN IN HIS OFFICIAL CAPACITY AS GOVERNOR OF KENTUCKY: Mark Stephen Pitt, Stephen Chad Meredith, Matthew Kuhn, Office of the Governor.

COUNSEL FOR APPELLEE HAL HEINER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE KENTUCKY EDUCATION AND WORKFORCE DEVELOPMENT CABINET: Mark Stephen Pitt, Stephen Chad Meredith, Matthew Kuhn, Office of the Governor, Bridget H. Papalia, Office of General Counsel.

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

When it enacted Kentucky Revised Statute ("KRS") 12.028, the General Assembly empowered the Governor "between sessions of the General Assembly, temporarily [to] effect a change in the state government organizational structure" of "any organizational unit or administrative body" in the Commonwealth.¹ And the Governor exercised that authority when he issued Executive Order ("EO") 2017-364, which made several changes to various state education boards. The Attorney General sued in circuit court to challenge the validity of the executive order, and that court upheld it. On discretionary review, we find no statutory or constitutional infirmity with the Governor’s use of the executive order to affect a temporary government reorganization on the facts before us, so we affirm the circuit court’s judgment.

I. BACKGROUND.

Central to this dispute is KRS 12.028, Subsection 1 of which gives the Governor the ability to "propose to the General Assembly, for [the General Assembly’s] approval, changes in the state government organizational structure which may include the creation, alteration or abolition of any organizational unit² or administrative body³ and the transfer of functions, personnel, funds, equipment, facilities, and records from one (1) organizational unit or administrative body to another." And Subsection 2 states in relevant part: "Recognizing that changes in the state government organizational structure may need to be made as rapidly as possible to achieve greater economy, efficiency, and improved administration as the needs of government dictate, the Governor ... may, between sessions of the General Assembly, temporarily effect a change in the state government organizational structure as described in subsection (1)[.]" Subsection (5) emphasizes the temporary nature of such a reorganization: "A temporary reorganization effected under subsection[ ] (2) ... shall be terminated ninety (90) days after sine die adjournment of the next regular session of the General Assembly unless otherwise specified by the General Assembly."

Exercising this legislatively-recognized power under KRS 12.028, the Governor issued EO 2017-364, the effect of which the circuit court aptly summarized:

The Order creates the Charter Schools Advisory Council, to advise the Kentucky Department of Education on charter schools, and allow[ ] overlapping membership with other education boards; altered the Standards and Assessments Process Review Committee’s membership to allow membership overlap with other boards; modified the Council on Postsecondary Education to guarantee that a citizen member is a non-voting, non-member advisor to the Kentucky Board of Education; and changed the Kentucky Board of Education to include four non-voting, non-member advisors who are on the Council on Postsecondary Education, the Education Professional Standards Board, the School Curriculum Assessment and Accountability Council, and the Charter Schools Advisory Council, or an individual with experience in education. The Order restructured the School Curriculum[ ] Assessment and Accountability Council with 15 members, rather than the previous 17 members, and altered membership requirements; reorganized the Reading, Diagnostic, and Intervention Grant Steering Committee with one less member at 15, and modified the membership requirements; reorganized the State Advisory Council for Gifted and Talented Education, reducing membership numbers from 19 to 11, and altering membership criteria; and abolished and re-created the State Advisory Panel for Exceptional Children as the State Advisory Council for Exceptional Children with 21 members, rather than 20 previous members, and additional[ly] represents individuals with disabilities. The Order finally abolished and re-created the Education Professional Standards Board with 13 members instead of the previous 15 members, and provided new membership criteria, and altered the appeal process for decisions – appeals now go to the Kentucky Board of Education for review before appeal to the Circuit Court rather than automatically going to the Circuit Court for review of the Board’s final decision[.]

The circuit court upheld the validity of EO 2017-364 except for the portion restructuring the appeal process within the Education Professional Standards Board, which the circuit court ruled unconstitutional. And the Governor has not appealed that ruling. The Attorney General appealed the remainder of the trial court’s ruling and sought immediate transfer of the case directly to this Court, which we granted.

II. ANALYSIS.

KRS 12.028 authorizes the Governor to effectuate for the interim between legislative sessions a temporary reorganization of the state’s "organizational units and administrative bodies." The Governor executed this authorization by promulgating EO 2017–364, temporarily reorganizing various state education boards. The Attorney General makes several constitutional and statutory arguments challenging the validity of the temporary reorganization mechanism itself and some of its inner workings. We address those challenges below.

A. Statutory Arguments

Because this Court respects the principle that "constitutional issues should be avoided if possible[,]"⁴ we address the Attorney General’s statutory arguments first.

The Attorney General argues that the General Assembly exempted the state’s education boards from the ambit of KRS 12.028. According to the Attorney General, KRS 12.295 specifically outlines the chapters in the Kentucky Revised Statutes that govern the various state education boards to which the Governor made changes and that no other statute not referred to in KRS 12.295 applies to the governance of the boards. This specific outlining, the Attorney General argues, further indicates the General Assembly’s intent to exempt them from the domain of KRS 12.028.

KRS 12.028 plainly applies to "organizational units and administrative bodies[.]" KRS 12.295 states, "The following organizational units and administrative bodies shall be governed by their respective substantive chapters as set out below[,]" followed by a list of the education boards at issue and their respective governing statutes. KRS 12.295 terms the education boards as "organizational units and administrative bodies[,]" the exact entities that KRS 12.028 encompasses as being within the ambit of the Governor’s reorganization power.

Contrary to the Attorney General’s interpretation of KRS 12.295, we find no indication from that statute that the chapters listed in conjunction with the specific board they govern represents an exhaustive list of governing statutes excluding application of every other statute not listed. KRS 12.295 reads more as a table of contents or index, giving directions to the reader on where to find the main governing provisions of certain boards rather than instruction from the General Assembly that no statute outside of the ones listed in KRS 12.295 has any application to the listed boards.

Not only does the plain text support the Governor’s position: If the General Assembly truly intended for the organizational units and administrative bodies listed in KRS 12.295 to be exempt from reorganization under KRS 12.028, it would have explicitly said so— KRS 12.028 like other statutes, explicitly exempts certain organizational units and administrative bodies from reorganization.⁵

The Attorney General also argues that the governing Chapters themselves signal the intent of the General Assembly to remove the boards that the Governor reorganized from the Governor’s reorganization power under KRS 12.028. Although the Attorney General makes various statutory-construction arguments to persuade us of the General Assembly’s intent to exclude the Kentucky Education Boards from the ambit of KRS 12.028, these arguments contradict the plain and explicit text of that statute. We need not look beyond the plain and unambiguous text of the General Assembly in our statutory interpretation.⁶ And the plain text of KRS 12.028, explicitly stating that the reorganization power applies to "organizational units and administrative bodies," coupled with the plain text of KRS 12.295, which specifically terms all the education boards at issue today as "organizational units and administrative bodies," confirms that all of the education boards come within the broad sweep of KRS 12.028.

In sum, we find the various education boards at issue fall within the ambit of the Governor’s temporary-reorganization-outside-of-session power stemming from KRS 12.028. We cannot accept the Attorney General’s suggested statutory interpretation in the face of such clear text.

The Attorney General further argues that the General Assembly has limited the Governor’s authority with respect to the boards to one of appointment—not removal—authority. The Attorney General cites the various statutes governing the various boards at issue providing...