MATTHEW G. BEVIN, (IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY) MOVANT
ANDY BESHEAR, (IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY) RESPONDENT
APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE PHILLIP J.
SHEPHERD, JUDGE NO. 16-CI-00738
D. MINTON, JR. CHIEF JUSTICE.
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 General'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.
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 decided by the
circuit court. We dismiss the appeal and ' - remand the
case to the circuit court with directions to dismiss the
complaint with prejudice.
entry of the circuit court's final order on October 21,
2016, the General Assembly passed and the 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 SB 12 superseded the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 board, required board members to
be confirmed by the Senate, and increased the proportional
share of racial-minority members who sit on the board.
passage of Senate Bill 12, the General Assembly enacted
companion legislation. Senate Bill 107 was introduced on
March 15, 2017, and the Governor signed it on March 21, 2017.
Because Senate Bill 107 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 a process for the removal of
individual members of a university's governing board.
not decide moot cases because the role of our Court is not to
give advisory opinions. This Court indulged in an in-depth
analysis of the mootness doctrine in Morgan v.
Getter  Getter provides a thorough
examination of the jurisprudential approach taken in Kentucky
with regard to the mootness doctrine. And while we discuss
multiple exceptions to the mootness doctrine in
Getter, the one requiring discussion today is the
"capable of repetition yet evading review"
capable-of-repetition-yet-evadirig-review exception to apply,
two elements must be met. First, "the challenged action
must be too short in duration to be fully litigated prior to
its cessation or expiration." And second, "there must
be a reasonable expectation that the same complaining party
will be subjected to the same action
again." 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.
Bill 107 requires that the Governor receive input from the
Council on Postsecondary Education on removal of
university-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. Because the new statutory path controls
the governor's actions, the second element for the
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.
the Court ORDERS the case is dismissed as moot and remanded
to the circuit court with directions to dismiss the action