LEXINGTON — Kentucky Supreme Court justices once again heard arguments in a case that could upend laws around “special legislation” governing specific cities and entities within the state.
The lawsuit, initially filed by the board of Jefferson County Public Schools, takes aim at a 2022 law that at present applies only to JCPS, the state’s largest school district. The law shifts power from the elected school board to the appointed superintendent.
Attorneys for the board and the Kentucky attorney general’s office, which is representing the Republican-controlled legislature that passed the law, presented oral arguments again on Wednesday. The hearing was held in Lexington as the court meets around the state while the Capitol in Frankfort undergoes years-long renovations.
A lawyer from Attorney General Russell Coleman’s office said a “blockbuster” decision to declare the law unconstitutional could have broad implications, such as undoing the laws that allow merged city-county governments in Lexington and Louisville.
Just such a lawsuit was filed on Monday by a long-time critic of the Jefferson County schools. It challenges the constitutionality of Louisville’s Metro Government, formed in 2003 after voters approved the merger.
If the Supreme Court strikes down the law pertaining to the school board, the attorney general’s office argued in a press release before the hearing that “the next logical step could be to declare the Jefferson County/Louisville merger unconstitutional.”
An attorney for the school board dismissed as “fiction” any fears about the legality of merged governments. He warned that if the law is allowed to stand, state lawmakers could “come up with imaginary, clever ways” to write legislation that affects only one local government entity.
Rehearing the case
The case is back before the Supreme Court because the court’s makeup changed. After Justice Pamela Goodwine was elected to the court last year, taking the spot of former Chief Justice Laurance VanMeter, the state’s high court agreed to rehear the case. In December, the court narrowly voted to uphold the 2022 state law by a 4-3 vote, but vacated the ruling in April after voting 4-3 to rehear the case.
Initially affirming the majority decision were Justices Shea Nickell, Robert Conley, current Chief Justice Debra Lambert, and VanMeter. Those dissenting were Justices Angela McCormick Bisig, Michelle Keller, and Kelly Thompson. Goodwine joined the dissenting justices in the call to rehear the case.
In earlier rulings a Jefferson Circuit judge and the Kentucky Court of Appeals both found the 2022 law unconstitutional. The lower court judges said the law violates Kentucky’s Constitution by singling out one school district for special legislation.
“If there was a problem that was specifically germane to the administration of public education, why would it not apply statewide, as opposed to simply applying in Jefferson County? That’s where I have a problem,” Goodwine asked a lawyer defending the law during the Wednesday hearing. “If the problems that the legislature saw were so necessary to fix in Jefferson County relating to public education … why then aren’t those problems consistent in every county where there’s a school board, where there’s a superintendent, where there is public education?”
Matthew Kuhn, solicitor general in the state attorney general’s office, answered that JCPS as the largest school district in the state is different from the rest “in size and complexity and geography” compared to other districts.
“If this court adopts a rule that prohibits a ‘class of one’ law, you’re going to handcuff the General Assembly from addressing problems that are specific only to parts of Kentucky,” Kuhn said.
David Tachau, an attorney representing the school board, told the court if it allows the law to stand as written, “you’re going to have special legislation come back big time.” The Kentucky Constitution has two sections that address “special legislation.” Section 59 bars the General Assembly from enacting laws that would apply to only a single locale or entity. It specifically prohibits “local or special acts concerning … the management of common schools.” Section 60 prevents the legislature from enacting “any special or local act” by exempting a local entity from the operation of a general act.
Kuhn had argued that ruling against the General Assembly could imperil current laws that are in effect, such as ones about license and income taxes in Louisville and another that allows Lexington’s government to purchase developmental rights to farmland. Kuhn said Lexington currently has such rights to nearly 300 farms at present.
But Tachau said that was “fiction” because another section of the state Constitution says the General Assembly may create classifications of cities.
“The whole notion that the sky is going to fall if this court declares Senate Bill 1 unconstitutional is fiction, and it’s a complete red herring,” Tachau said.
Speaking to reporters after the court recessed, Tachau said he did not think justices “found that terribly persuasive” and added that the legislature “has a lot of flexibility” under the section of the constitution he previously referred to.
As for the possibility of opening up more “special legislation” under the court’s previous decision, Tachau said the General Assembly would be permitted “to come up with imaginary, clever ways that someday, somehow, another person, locale, entity, could fit in” a class as described in legislation.
“I think that members of the dissent in December were very concerned about that, and depending on how they deal with that, if they really grab onto this idea that you can imagine anything, I think that could be a problem going forward,” he added.
Kuhn told reporters that the outcome of the case could be a “blockbuster” decision if the 2022 law is declared unconstitutional.
“I think the justices are seriously considering the implications of this,” he said. “There are a lot of statutes in the KRS (Kentucky Revised Statutes) that could be imperiled, laws that apply in ‘class of ones’ like Fayette County and Jefferson County. And I think the court really appreciated the potential implications.”
Nickell wrote the majority opinion for the now-vacated ruling, which said the 2022 law could stand. As written, the legislation would change the relationship between school boards and superintendents only “in a county school district with a consolidated local government,” a description that fits only the state’s largest school district, which has been the target of criticism by Republicans. Backed by GOP lawmakers, the legislation would make a host of administrative and academic changes, including provisions directed at the management of JCPS.
Bisig penned a strong dissenting opinion and predicted the General Assembly would be able to evade the constitutional bans on special legislation, as it is “more than capable of concocting clever ‘open classes’ that in effect are likely only ever to reach a single ‘individual, object or locale.’”
‘What’s at stake’
Whatever the court now decides could impact the new lawsuit challenging the constitutionality of merged local governments in the state, such as Louisville Metro Government and the Lexington-Fayette Urban County Government.
Louisville real estate executive David Nicklies filed the lawsuit in Jefferson County Circuit Court before the court heard arguments Wednesday.
Nicklies has been a long-time critic of the Jefferson County Public Schools and the Jefferson County Teachers Association, a local teachers union, reports Louisville Public Media. He has raised and contributed money to try to defeat school board candidates and to pay for ads criticizing the teachers union.
“What’s at stake isn’t just one policy. It’s the legal foundation of how Kentucky’s largest cities operate,” said Nicklies in a press release, which also noted that Justice Goodwine received support from teachers unions in her successful race last year for the Supreme Court.
Kentucky House Republican Whip Rep. Jason Nemes, a Louisville lawmaker who voted for the 2022 law, wrote an op-ed for the Louisville Courier Journal earlier this week saying that the court’s next ruling “will not only determine the future of Jefferson County’s schools but could also unravel critical local policies that benefit urban, suburban, and rural communities.”
Attorney General Coleman in his press release said he would defend the state laws allowing the local government mergers.
The press release highlighted the lawsuit, saying that if JCPS is successful at the state’s high court, “the next logical step could be to declare the Jefferson County / Louisville merger unconstitutional.
“If the Supreme Court pulls at this thread and overturns the education law, this story could end with the unraveling of the merger and 20 years of Metro Government,” Coleman said. “That would be wrong on the law and wrong for moms and dads who just want to keep their kids safe, healthy and learning.”
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Written by McKenna Horsley. Cross-posted from the Kentucky Lantern.
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