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Commonwealthl ex rel. Beshear v. Dickerson

United States District Court, E.D. Kentucky, Central Division, Frankfort

June 27, 2019

DAVID DICKERSON, in his official capacity as Secretary of the Kentucky Labor Cabinet, Defendant.



         Kentucky Attorney General Andy Beshear and the Jefferson County Teachers Association jointly filed this action in the Franklin Circuit Court in April 2019. They allege that Defendant David Dickerson, Secretary of the Kentucky Labor Cabinet, acted unlawfully by seeking information about Kentucky public school teachers who called in sick to attend protests at the state capitol in February and March 2019. Dickerson removed the action to this Court on May 2, 2019, alleging federal-question jurisdiction under 28 U.S.C. § 1331. [Record No. 1] The plaintiffs have moved to remand the matter to state court, asserting that their claims are limited to matters of state law. As a result, they claim that this Court does not have subject-matter jurisdiction over the case. For the reasons outlined below, the Court agrees that only state-law claims are presented. Therefore, the matter must be remanded to the Franklin Circuit Court for further proceedings.


         The Court previously related the background of this matter in detail, so only facts which are necessary for resolution of the pending motion will be repeated. [See Record No. 11.] The Kentucky General Assembly introduced bills affecting public schools during its 2018 and 2019 Regular Sessions. [Record No. 1-2, p. 4] Teachers from several counties called in sick and skipped work on “important legislative days” so that they could attend protests at the state capitol. These protests became known as “sick outs.” Id. at p. 8. Governor Matt Bevin noted that many school districts across Kentucky were forced to close due to teacher absences. Id.

         In February and March 2019, teachers again called in sick to protest proposed legislation affecting public schools. This caused several school districts to cancel classes, including Jefferson County, which closed for six days. On March 14, 2019, Wayne Lewis, the Commissioner of the Kentucky Department of Education, e-mailed the superintendents of ten school districts requesting teacher attendance records during the sick outs. By March 25, 2019, all of the school districts had responded to Lewis' requests. Lewis sent the superintendents a letter on March 27, 2019, advising them of the following:

If district closures because of work stoppages continue and districts are unwilling or unable to address this problem, I will explore further action to do so, including recommending that the Labor Cabinet issue citations for teachers engaged in illegal work stoppages . . . .

         Between April 10 and April 15, 2019, the Kentucky Labor Cabinet's Office of Inspector General issued administrative subpoenas duces tecum to the superintendents of the same ten school districts, commanding production of documents related to the sick outs.[1] Attorney General Beshear advised Defendant Dickerson and Governor Bevin that the subpoenas were illegal because, in his opinion, they exceeded the Secretary's authority and violated the teachers' rights to free speech and assembly. Beshear asked Dickerson to rescind the subpoenas, but Dickerson refused to do comply with the demand.

         The plaintiffs filed this action in state court on April 29, 2019, alleging that the Secretary's conduct interfered with the protesting teachers' rights to free speech and peaceable assembly in violation of Sections 1 and 2 of the Kentucky Constitution. The plaintiffs also claim that the Secretary exceeded his authority under Section 2 of the Kentucky Constitution and Kentucky Revised Statutes § 336.310(1) because the protesting teachers did not engage in a strike or work stoppage. The plaintiffs further claimed that the defendant violated Kentucky Revised Statutes § 336.310(2) by using intimidation, threats, and coercion to discourage teachers from protesting. Finally, the plaintiffs allege that Kentucky Revised Statutes § 336.310(1) violates Sections 1, 8, and 51 of the Kentucky Constitution because it is vague, overbroad, and relates to more than one subject, which is not expressed in the statute's title.

         The defendant's notice of removal asserts that this Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367 because the Complaint contains claims arising under the Constitution, laws, or treaties of the United States, as well as state-law claims that are part of the same case or controversy. [Record No. 1] Conversely, the plaintiffs contend that they have been careful to assert only state-law claims and, therefore, this matter should be remanded for lack of jurisdiction.


         “Federal courts are courts of limited jurisdiction.” Estate of Cornell v. Bayview Loan Serving, LLC, 908 F.3d 1008, 1011 (6th Cir. 2018) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). The district courts of the United States “have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A defendant may remove a case only if the case could have been brought in federal court in the first instance. 28 U.S.C. § 1441(a). The party seeking removal has the burden of showing that the district court has original jurisdiction. Long v. Bando Mfg. of Am., Inc., 201 F.3d 754');">201 F.3d 754, 757 (6th Cir. 2000). Removal statutes are narrowly construed, and any doubt is resolved in favor of remand. First Nat. Bank of Pulaski v. Curry, 301 F.3d 456, 462 (6th Cir. 2002).

         Federal courts apply the “well-pleaded complaint” rule to determine whether a plaintiff presents a claim “arising under” federal law. Loftis v. United Parcel Serv., Inc., 2 F.3d 509');">342 F.3d 509, 514 (6th Cir. 2003). The rule provides that a case arises under federal law only when a federal question is presented on the face of a plaintiff's properly-pleaded complaint. Id. Here, Defendant Dickerson contends that an attachment to the Complaint establishes that a federal question is presented. More specifically, he cites portions of an April 16, 2019 letter from Plaintiff Beshear to Dickerson which states:

I am writing to advise you that the recent subpoenas issued by the Labor Cabinet to various school districts are unlawful, and that any attempt to punish teachers that engaged in a ‘sick-out' would violate their First Amendment rights.
Because the ‘sick-outs' were not related to the conditions of the teachers' employment, but instead driven by their objections to legislation that would harm the overall financial and structural support of the public school system, the ...

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