Bevin v. Beshear
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In this appeal, intervening statutory law enacted by the General Assembly rendered moot the legal issues decided by the circuit court.
Here, the circuit court sustained the Attorney General’s challenge to Governor Matthew Bevin’s authority under Ky. Rev. Stat. 12.028 to abolish and reorganize the University of Louisville Board of Trustees and permanently enjoined the Governor from implementing executive orders issued in connection with his effort. The Supreme Court dismissed the Governor’s appeal and remanded the case to the circuit court with directions to dismiss the complaint with prejudice, holding that newly enacted Senate Bill 107 controls over section 12.028. The case is moot because Senate Bill 107 provides a specific statutory path for a governor to disband and reconstitute a university’s governing board and creates a process for the removal of individual members of a university’s governing board.
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TO BE PUBLISHED 2016-SC-000642-TG (2016-CA-000174~-MR) ·MATTHEW G . BEVIN, (IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY) v. MOVANT ON APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J. SHEPHERD, JUDGE NO. 16-CI-00738 ANDY BESHEAR, (IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY) RESPONDENT ORDER DISMISSING We granted transfer from the Court of Appeals of Governor Matthew G. Bevin's appeal from the circuit court's final judgment and grant of permanent injunctive relief. The circuit ·court sustained the Attorney G~netal's challenge to ' ' ' the Governor's. authority under Kentucky Revised Statute (KRS) 12.028 to abolish and reorganize the University of Louisville Board of Trustees and permanently enjoined the Governor from implementing the Executive Orders issued June 17, 2016, in connection with his effort. After thorough review of the briefs and an oral argument, we hold that intervening statutory law enacted by the General. Assembly has rendered moot . the legal issues dedded by the Circuit court. We dismiss the appeal and . remand the case to the circuit court' with directions to dismiss the complaint with prejudice. After entry of~he circuit court's final order on October 21, 2016, the . . . . . - General Asse:rribly passed and th~ Governor signed Senate Bill 12 on January ·. 7, 2017. SB 12 superseded the disputed Executive Orders of June 17, 20.16. It abolished the then-existing University of LOuisville Board of Trustees and · created a new board. Senate Bill 12 also changed the numerical structure of the bo.ard, required board members to be confirmed by the Senate, and increased the proportional share of racfal-minority members who sit on the board. Following passage·of Senate Bill 12, the General Assembly enacted . ' companion legislation. Sena~e Bill 107 was introduced on March 15, 2017, and . the Govern~r signed it on March 21,. 20 l 7. Because Senate Bill 107r contained an emergency clause, it became effective immediately upon signature by the Governor. Senate Bill 107 provides a specific statutory path for a governor to disband and reconstitute a university's governing board and creates ~ proc~ss for the remov~ of individual members of a university's governing bo"ard. We do not decide moot cases because the role of our Court is not to give . . advisory opinions.I This Court indulged in an in-:-depth analysis of the mootness doctrine in Morgan v. Getter.2 Getter provides a thorough examination . of the jurisprudential approach taken in J<.entucky with regard to. the mootness ·doctrine. And while we discuss multiple exceptions to the mootness doctrine ih. 1 Morgan v. Getter, 441 S.W;3d 94 (Ky. 2014) (quoting Louisville Transit Company v. Department of Motor Transportation, 286 S.W. 536, 538 (Ky. 1956)). 2 Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014). 2 .Getter, the one requiring discussion today is the "capable of repetition yet evading review" exception.:3 For the capabie-of-repetition-yet-evadirtg-review exception to apply, two elements must be met. First, "the challenged action must .be too sho~t in duration to pe fully litigated prior to its cessation or expiration. "4 And second, "there must be a reasonable. expectation that the same complaining party will . . be subjected to the sanie action again. "5 Because the General Assembly passed both Senate Bills 12 and 107, it has displaced KRS 12.028 as it applies to the facts before us today. Senate Bill 107 r.equires that the Governor receive input from the Council on Postsecondary Education on removal of universicy-board members and, like Senate Bill 12, requires any.gubernatorial appointees to a university board be confirmed by the Senate. As a result, the newly enacted specific statutory path controls over KRS 12.028.6 Because the n<?W statutory path controls the a In Getter we addressed the four most recognized exceptions to the mootness doctrine: (1) capable of repetition yet evading review; (2) the public interest_ exception; (3) the-voluntary cessation exception; and (4) the collateral consequences exception. 4 Id. (citing Philpot v. Patton, 837 S.W.2d 491 (Ky. 1992)). s Id. 6 " ... Kentucky follows the rule of statutory construction that the more specific statute controls over the more general statute." Light v. City of Louisville, 248 S.W.3d 559, 563 (Ky. 2008); see Withers v. University of Kentucky, 939 ~.W.2d 340 (Ky. 1997); City of Bowling Green v. Board of Education of Bowling Green Independent School District, 443 S.W.2d 243 (Ky. 1969).. This Court reaffirmed that principle in 2013 with Abel v. Austin when we stated, "where there is both a specific statute and a general statute seemingly applicable to the same subject [the rule] is that the specific statute controls." Abel v. Austin, 411 S. W.3d 728, 738 (Ky. 2013) (citing Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 361(Ky.2005)) (quoting Meyers v. ChapmanPrintirig . Co., Inc., 840 S.W.2d 814, 819 (Ky. 1992)). Further, "where an apparent conflict in statutes exists, the 'later statute is given effect over an earlier statute."' Bowling v. Kentucky Dep't.ofCorr'., 301S.W.3d478, 491 (Ky. 2009) (quoting Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky. 1987)). 3 governor's actions, the second element for the capable-of-repetition-yetevading-review exception necessarily fails, because any future attempt to reorganize university boards must. follow a new and distinct statutory scheme. It is for this reason-a deliberate action by the General Assembly intervening to provide greater clarity of law-that the case today is moot. Accordingly, the Court ORDERS the case is dismissed as moot and remanded to the circuit court with directions to dismiss the action with prejudice. All sitting. All concur. ENTERED: September 28, 2017. USTICE JOHN D. MINTON, R. ·4
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