IN THE BOONE CIRCUIT COURT

838154FF-A86A-44A1-A559-1FD112C25B17 : 000002 of 000036

BOONE COUNTY, KENTUCKY
21-CI-______
Electronically Filed

AARON GILLUM, on behalf of himself and

as next friend and guardian of LG, and NG
minor children PLAINTIFFS

On behalf of himself,f and others similarly situated

(class certification sought under C.R. 23)

v.

Boone County Board of Education

and

Boone County Public School District

and

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

Dr. Tiffany Schussler - Division 1
Dr. Maria Brown - Division 2
Jesse Parks - Division 3
Julia Pile - Division 4
Karen Byrd - Division 5
All in their official capacities as Board Members
Boone County Board of Education

and

Matthew Turner, Superintendent

In his official capacity
t A
DEFENDANTS

On behalf of themselves, and on behalf of

all other school boards, school districts, and
Superintendents
(Defendants’ class certification sought under C.R. 23) COM : 000001 of 000013

PLAINTIFFS’ VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE

RELIEF

1
 The parties

838154FF-A86A-44A1-A559-1FD112C25B17 : 000003 of 000036

1. The parent Plaintiff in this case is a property owner of property located in Boone County

Public Schools, a resident within the district, a taxpayers, and a parent, of school children

enrolled in the Boone County Public Schools. Mr. Gillum also bring suit as next friends

and guardians of his minor children.

2. The Defendants include the Boone County

t Board of Education (“Board”) as a body

politic, which, under KRS Chapter 160, provides oversight and authority for the Boone

County Public School District, and, among other things, is responsible for the provision

of public education to children within Boone County, Kentucky. Defendants also include

the individual board members (in their official capacities only), and the Superintendent.

Under KRS 160.370, it is the duty of the Superintendent to “see that the laws relating to

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

the schools, the bylaws, rules, and regulations of the Kentucky Board of Education, and

the regulations and policies of the district board of education are carried into effect.”

The facts

3. In March, 2020, COVID-19 was found to exist in the Commonwealth of Kentucky;

Kentucky officials, including its Governor, took immediate action, including, without

limitation, moving education to a virtual or remote option. The Governor did this

through the issuance of an executive order, which suspended of existing statutes (set forth

below) that require in person educational instruction to students.

4. From the time the Governor’s executive order was put into place, until February 2, 2021,

the in-person educational requirements of the Kentucky Revised Statutes (set forth

below) remained suspended.

2
 5. The Board, for its part, established virtual or remote instruction since the time of the

838154FF-A86A-44A1-A559-1FD112C25B17 : 000004 of 000036

Governor’s order in March, 2020.

6. The Board established a calendar for instruction in the 2020-2021 school year.1

Notwithstanding this calendar, which purports to provide instruction to students, the

Board and the District has, for the entire instructional year commencing on August 18,

2020, and continuing to the present, conducting its instruction in a hybrid, part time

setting.

7. All indications are that the Board and District will continue instruction in a part time in-

person from now until at least the beginning of March, 2021, and possibly to the end of

the 2021 spring school year, currently set to occur on May 19, 2021.

8. Starting late 2020 and continuing through the present and beyond, the Commonwealth of

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

Kentucky, and its Department of Public Health, has begun coordinating vaccination

efforts ffor COVID-19.

COVID-19.

9. In particular, both the Moderna and Pfizer vaccines have been demonstrated to have high

degrees of effectiveness (over 90%).

10. As a priority to re-open schools, K-12 school personnel, including both certified and non-

certified personnel, were placed in Priority Code 1-B – one of the highest priority codes -

- by the Kentucky Department of Public Health to receive the COVID-19 vaccine.2

11. School staff are eligible to receive the vaccines now, and have been eligible for weeks to

receive the vaccine.

1
https://www.boone.k12.ky.us/userfiles/3087/my%20files/standard%20calendar%20-
%20student%20-%202021-2022.pdf?id=593109 (last visited 2/1/2021).
2
https://govstatus.egov.com/ky-covid-vaccine (last visited 2/1/2021).
3
 12. As opposed to community spread in Boone County, the number of cases for children

838154FF-A86A-44A1-A559-1FD112C25B17 : 000005 of 000036

from 5 to 17 years old have been relatively low.3

13. The World Health Organization,4 and other studies,5 have demonstrated that, as opposed

to other interactions, infections of COVID-19 within schools has not been a substantial

conduit of COVID-19 transmission, particularly where common sense mitigation

measures are taken; what is more, there are serious societal and other consequences to

children not being in school, including, without limitation, depression in children,6

suicides,7 and other troubling events. This is particularly concerning where suicide is the

second leading cause of death in middle and high school age children in Kentucky.8

14. All evidence, both before and currently, is that the remote instruction of students is

significantly inferior to in person instruction.9 This first referenced study concludes:

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

In a range of environments, the gaps in student success across socioeconomic groups are
larger in online than in classroom courses. Students without strong academic
backgrounds are less likely to persist in fully online courses than in courses that involve
personal contact with faculty and other students and when they do persist, they have
weaker outcomes. Not surprisingly, students with more extensive exposure to technology

https://public.tableau.com/profile/chfs.dph#!/vizhome/COVID19SchoolSelfReportngData/Schoo
lSelfReportCovid19DB (last visited 2/1/2021).
4
https://www.who.int/docs/default-source/coronaviruse/risk-comms-updates/update39-covid-
and-schools.pdf?sfvrsn=320db233_2 (last visited 2/1/2021).
5
https://www.usnews.com/news/education-news/articles/2020-12-23/new-study-cautiously-
suggests-schools-dont-increase-spread-of-coronavirus
suggests-schools-dont-increase-spread-of- f coronavirus (last visited 2/1/2021);
https://jamanetwork.com/journals/jama/fullarticle/2775875 (last visited 2/1/2021);
https://www.cidrap.umn.edu/news-perspective/2021/01/scientists-highlight-low-risk-covid-19-
spread-schools (last visited 2/1/2021); https://www.cnn.com/2021/01/29/health/schools-covid-
spread-study-preprint/index.html (last visited 2/1/2021).
6
https://www.sentinelnews.com/content/mental-health-growing-pandemic-concern-schools (last
COM : 000004 of 000013

visited 2/1/2021)
7
https://www.wave3.com/2020/09/11/suicide-prevention-guide-parents-with-middle-schoolers/
(last visited 2/1/2021);
8
https://education.ky.gov/school/sdfs/Pages/Suicide-Prevention-and-Awareness.aspx (last visited
2/1/2021).
9
http://mason.gmu.edu/~sprotops/OnlineEd.pdf (last visited 2/1/2021).
4
 and with strong time management and self- f directed learning skills are more likely than
self-directed

838154FF-A86A-44A1-A559-1FD112C25B17 : 000006 of 000036

others to adapt to online learning where students can do the work on their own schedules.
There is considerable danger that moving vulnerable students online will widen
attainment gaps rather than solving the seemingly intractable problem of unequal
educational opportunity.

15. A 2017 study demonstrates not only lower student performance in the course in which a

student is enrolled virtually, but long-term educational impacts and damage from virtual,

versus traditional in-person instruction.10

16. Other published research reveals similar negative impacts.11

17. Equally problematically, there has been no assessment testing due to waivers for COVID-

19, to objectively measure the impact that remote learning has had on student

performance, and, perhaps of a more concerning nature, on long term impacts to

student.12

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

18. These children of the Plaintiff have had serious negative impacts due to total or part time

virtual learning since the outset of the pandemic. NG has diagnosed speech issues, for

which he is receiving services (currently remotely), and neither child is achieving the

levels of achievement that they had with in person learning.

19. As opposed to Boone County, other schools in the Commonwealth of Kentucky,

including in medium sized cities, are providing quality in-person instruction.13 Next

door, in Gallatin County, schools are conducting 4-day-a-week in person instruction.14

10
https://pubs.aeaweb.org/doi/pdf/10.1257/aer.20151193 (last visited 2/1/2021).
11
https://journalistsresource.org/studies/society/education/virtual-schools-parents-choice-
COM : 000005 of 000013

performance-research/ (last visited 2/1/2021);

https://pubs.acs.org/doi/pdf/10.1021/acs.jchemed.0c00788 (last visited 2/1/2021);
12
https://education.ky.gov/districts/tech/sis/Documents/2020SRCReportingImpactChanges.pdf
(last visited 2/1/2021).
13
https://www.paducah.kyschools.us/COVID-19Coronavirus.aspx (last visited 2/1/2021);
14
https://www.gallatin.k12.ky.us/featured/1 (last visited 2/1/2021);
5
 The law

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Section 183 of Kentucky’s Constitution

20. Section 183 of the Kentucky Constitution provide that “The General Assembly shall, by

appropriate legislation, provide for an efficient system of common schools throughout the

State.”

21. In Rose v. Council for Better Educ., 790 S.W.2d 186 (1989) the Kentucky Supreme Court

identified that Courts should be “ever mindful of the immeasurable worth of education to

our state and its citizens, especially to its young people,” and that “framers of our

constitution intended that each and every child in this state should receive a proper and an

adequate education, to be provided for by the General Assembly.” Id. at 189-190.

22. Indeed, “education is perhaps the most important function of state and local

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

governments.” Id. at 190. “Today it is a principal instrument in awakening the child to

cultural values, in preparing him for later professional training, and in helping him to

adjust normally to his environment.” Id. “In these days, it is doubtful that any child may

reasonably be expected to succeed in life if he is denied the opportunity of an education.”

Id.

23. One of the holdings of Rose was that “all common schools must be free, open to all

students, and provide equal opportunities for all students to acquire the same education.

In other words, although by accident of birth and residence, a student lives in a poor,

financially deprived area, he or she is still entitled to the same educational opportunities

that those children in the wealthier districts obtain.” Id. at 207.

COM : 000006 of 000013

24. The Court observed that the following are requirements for the provision of educational

services: “1) The General Assembly is mandated, is duty bound, to create and maintain a

6
 system of common schools -- throughout the state. 2) The expressed purpose of providing

838154FF-A86A-44A1-A559-1FD112C25B17 : 000008 of 000036

such service is vital and critical to the well being of the state. 3) The system of common

schools must be efficient. 4) The system of common schools must be free. 5) The

system of common schools must provide equal educational opportunities for all students

in the Commonwealth. 6) The state must control and administer the system. 7) The

system must be, if not uniform, "substantially uniform," with respect to the state as a

whole. 8) The system must be equal to and for all students.” Id. at 208.

25. Importantly, “[e]ach child, every child, in this Commonwealth must be provided with an

equal opportunity to have an adequate education. Equality is the key word here.” Id. at

211. “The children of the poor and the children of the rich, the children who live in the

poor districts and the children who live in the rich districts must be given the same

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

opportunity and access to an adequate education.” Id.

Kentucky Statutes on In-Person Instruction

26. In an effort to provide the requisite efficient system of education that the Kentucky

Supreme Court has found is required under Section 183 of the Kentucky Constitution, the

General Assembly has enacted KRS Chapter 158.

27. KRS 158.033 provides that students shall be instructed in their homes, but only if they

are “not able even with the help of transportation to be assembled in a school.”

28. Moreover, KRS 158.033 provides, “(2) For a student to be eligible for home or hospital

instruction, a signed statement of the diagnosed condition requiring home or hospital

instruction shall be provided in accordance with KRS 159.030(2).”

COM : 000007 of 000013

29. KRS 158.060 provides the definition of a “school month”: 20 days of instruction “in the

schoolroom.”

7
30. KRS 158.070(1)(e) provides this definition of "Student attendance day:" “means any day

838154FF-A86A-44A1-A559-1FD112C25B17 : 000009 of 000036

that students are scheduled to be at school to receive instruction, and encompasses the

designated start and dismissal time.” (emphasis added).

31. To qualify as a “student attendance day,” instruction must occur in person.

32. KRS 158.070(1)(f)

f provides this definition of "Student instructional year": “means at

least one thousand sixty-two (1,062) hours of instructional time for students delivered on

not less than one hundred seventy (170) student attendance days.” (emphasis added).

33. KRS 158.070(9) permits non-traditional instruction to be substituted for in person

instruction, but limits such instruction to not more than 10 days, and specifically

provides:

(9) Notwithstanding any other statute, each school term shall include no less than the

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

equivalent of the student instructional year in subsection (1)(f) of this section, or a
variable student instructional year in subsection (1)(h) of this section, except that the
commissioner of education may grant up to the equivalent of ten (10) student attendance
days for school districts that have a nontraditional instruction plan approved by the
commissioner of education on days when the school district is closed for health or safety
reasons. The district's plan shall indicate how the nontraditional instruction process shall
be a continuation of learning that is occurring on regular student attendance days.
Instructional delivery methods, including the use of technology, shall be clearly
delineated in the plan.

34. As further evidence of the statutory scheme for in-person attendance, and recognizing

that schools provide critical services beyond education to at-risk children, the General

Assembly also included in KRS 158.070(11) the following provision:

(11) Notwithstanding the provisions of KRS 158.060(3) and the provisions of subsection
(2) of this section, a school district shall arrange bus schedules so that all buses arrive in
sufficient time to provide breakfast prior to the beginning of the student attendance day.
In the event of an unforeseen bus delay, the administrator of a school that participates in
COM : 000008 of 000013

the Federal School Breakfast Program may authorize up to fifteen (15) minutes of the
student attendance day if necessary to provide the opportunity for children to eat
breakfast not to exceed eight (8) times during the school year within a school building.

8
 Additional Facts

838154FF-A86A-44A1-A559-1FD112C25B17 : 000010 of 000036

35. Notwithstanding the Governor’s suspension of KRS Chapter 158 through emergency

executive orders in March, 2020, the Kentucky General Assembly removed the

Governor’s ability to suspend statutes, absent the consent of the Kentucky Attorney

General, through 2021 RS SB1.15

36. On February 2, 2021, 2021 RS SB1 was passed over the veto of the Governor. Id.

37. The bill specifically amended KRS 39A, and, in Section 4 of the Act, limited the

Governor’s ability to suspend statutes by requiring that “1. The statute is specifically

enumerated by the Governor in the executive order; and 2. The executive order

specifying the suspension is approved by the Attorney General in writing.” Id.

38. The bill contained an emergency clause so as to take effect immediately at Section 11 of

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

the Act. Id.

39. The Attorney General has not approved the suspension of the cited in-person learning

requirements of KRS Chapter 158 in writing.

40. At the time of the filing of this Complaint, due to the passage of 2021 RS SB1, and the

fact that the Kentucky Attorney General has not suspended the requirements for in person

learning, the aforementioned requirements for in person instruction are in force and

effect, and are being violated by the Defendants.16

41. In addition to the provision on non-traditional instruction being generally inadequate, the

Defendants’ failure to provide in person instruction violates the guarantees in the

Kentucky Constitution regarding the ability to acquire the same education provided by
COM : 000009 of 000013

15
https://apps.legislature.ky.gov/record/21rs/sb1.html (last visited 2/1/2021).
16
It is beyond debate under Section 15 of the Kentucky Constitution that the General Assembly
and only the General Assembly has the power to suspend statutes, and to limit their suspension.
9
 other school districts in the state that are complying with the statutory requirements of

838154FF-A86A-44A1-A559-1FD112C25B17 : 000011 of 000036

KRS 158 by providing the required in-person instruction.

Class Certification Allegations

42. The actions and violations herein complained of affect millions of Kentucky parents,

involve more than 80 school boards, involve more than 400 school board members, and

more than 80 school Superintendents.

43. Pursuant to C.R. 23.01: (a) the class is so numerous that joinder of all members is

impracticable, (b) there are questions of law or fact common to the class, (c) the claims or

defenses of the representative parties are typical of the claims or defenses of the class,

and (d) the representative parties will fairly and adequately protect the interests of the

class.

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

44. Pursuant to C.R. 23.02: (a) The prosecution of separate actions by or against individual

members of the class would create a risk of (i) inconsistent or varying adjudications with

respect to individual members of the class which would establish incompatible standards

of conduct for the party opposing the class, or, (ii) adjudications with respect to

individual members of the class which would as a practical matter be dispositive of the

interests of the other members not parties to the adjudications or substantially impair or

impede their ability to protect their interests; or (b) the party opposing the class has acted

or refused to act on grounds generally applicable to the class, thereby making appropriate

final injunctive relief or corresponding declaratory relief with respect to the class as a

whole.
COM : 000010 of 000013

45. Plaintiffs seek a Plaintiff class certification with the class definition defined as follows:

All parents in the Commonwealth of Kentucky, with children enrolled in public schools

10
 in this Commonwealth, on behalf of themselves and their children, who desire to have

838154FF-A86A-44A1-A559-1FD112C25B17 : 000012 of 000036

their children resume full time, in-person instruction.

46. Plaintiffs further seek a Defendant class certification with the class definition defined as

follows: All school boards, school districts, and school Superintendents, who are not

offering full time, in-person instruction options to parents and students.

COUNT I – Declaratory and Injunctive

n Relief

47. Plaintiff reincorporates the previous paragraphs as if fully written herein.

48. Plaintiff seeks declaratory relief under KRS Chapter 418 that the actions of these

Defendants are illegal and/or unconstitutional, as plead herein.

49. Plaintiff seeks injunctive relief pursuant to K.R.S. 418.055, and C.R. 65, to obtain

compliance with Chapter 158 and Kentucky Constitution 168 by these Defendants, and to

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

direct the Defendants to re-open to in-person instruction for students immediately.17

WHEREFORE, Plaintiffs
f demand:

x Declaratory relief, that the Defendants are in violation of KRS Chapter 158 and Kentucky

Constitution 168; and

x Appropriate injunctive relief, including, without limitation, that the Defendants comply

with KRS Chapter 158 and Kentucky Constitution 168, and to direct the resumption of

ffull in-person learning effective immediately;

x Certification of the Plaintiff and Defendant classes as prayed for; and

x Such other relief as this Court may find just and proper. COM : 000011 of 000013

17
Plaintiffs do not, in this action, challenge the ability of the Defendants to: (1) mandate
sanitation, distancing, or other procedures or protocols other than requiring in person instruction;
or (2) seek to inhibit the ability of Defendants to offer full or hybrid virtual instruction at the
request of parents or guardians who wish to have this instruction conducted.
11
 838154FF-A86A-44A1-A559-1FD112C25B17 : 000013 of 000036
Respectfully submitted,

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com

/s/Thomas Bruns
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241
tbruns@bcvalaw.com

/s/Zach Gottesman
Zach Gottesman (86288)
404 East 12 St., First Floor
Cincinnati, OH 45202

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

zg@zgottesmanlaw.com
Counsel for the Plaintiffs

COM : 000012 of 000013

12
COM : 000013 of 000013 Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349) 838154FF-A86A-44A1-A559-1FD112C25B17 : 000014 of 000036
 IN THE BOONE CIRCUIT COURT

838154FF-A86A-44A1-A559-1FD112C25B17 : 000015 of 000036

BOONE COUNTY, KENTUCKY
21-CI-______
Electronically Filed

AARON GILLUM, on behalf of himself and

as next friend and guardian of LG, and NG
minor children PLAINTIFFS

On behalf of himself,f and others similarly situated

(class certification sought under C.R. 23)

v.

Boone County Board of Education, et. al. DEFENDANTS

On behalf of themselves, and on behalf of

all other school boards, school districts, and
Superintendents
((Defendants’’ class certification sought under C.R. 23)
(Defendants

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

MOTION FOR CLASS CERTIFICATION

Plaintiffs, by and through Counsel, seeks both a Plaintiffs and Defendants’ class action

certification for this action seeking only declaratory and injunctive relief.
f A memorandum in

support is attached hereto and incorporated herein. A proposed order is also attached.

Respectfully submitted,

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com

/s/Thomas Bruns
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
MOT : 000001 of 000006

Cincinnati, OH 45241
tbruns@bcvalaw.com

/s/Zach Gottesman
Zach Gottesman (86288)
 404 East 12 St., First Floor

838154FF-A86A-44A1-A559-1FD112C25B17 : 000016 of 000036

Cincinnati, OH 45202
zg@zgottesmanlaw.com
Counsel for the Plaintiffs

MEMORANDUM IN SUPPORT

I. FACTS

This action seeks declaratory and injunctive relief, to compel the Boone County School

Board, Superintendent, to return to in-person instruction as required by KRS Chapter 158. (Pl’s

Verified Compl.). The Plaintiff Class involves millions of Kentucky parents; the Defendant

class involve, involve more than 80 school boards, involve more than 400 school board

members, and more than 80 school Superintendents. (Pl’s Verified Compl. ¶42).

Plaintiffs seek a Plaintiff class certification with the class definition defined as follows:

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

All parents in the Commonwealth of Kentucky, with children enrolled
n in public schools in this

Commonwealth, on behalf of themselves and their children, who desire to have their children

resume full time, in-person instruction. (Pl’s Verified Compl. ¶45). All of these members of this

class have similarly situated claims; the defenses are similarly, and, these important matters

should be adjudicated once. All of the C.R. 23 factors are met.

Plaintiffs further seek a Defendant class certification with the class definition defined as

follows: All school boards, school districts, and school Superintendents, who are not offering full

time, in-person instruction options to parents and students. (Pl’s Verified Compl. ¶46).

II. LAW AND ARGUMENT

Pursuant to C.R. 23.01: (a) the class is so numerous that joinder of all members is
MOT : 000002 of 000006

impracticable, (b) there are questions of law or fact common to the class, (c) the claims or

defenses of the representative parties are typical of the claims or defenses of the class, and (d) the
representative parties will fairly and adequately protect the interests of the class. (Pl’s Verified

838154FF-A86A-44A1-A559-1FD112C25B17 : 000017 of 000036

Compl. ¶43).

Pursuant to C.R. 23.02: (a) The prosecution of separate actions by or against individual

members of the class would create a risk of (i) inconsistent or varying adjudications with respect

to individual members of the class which would establish incompatible standards of conduct for

the party opposing the class, or, (ii) adjudications with respect to individual members of the class

which would as a practical matter be dispositive of the interests of the other members not parties

to the adjudications or substantially impair or impede their ability to protect their interests; or (b)

the party opposing the class has acted or refused to act on grounds generally applicable to the

class, thereby making appropriate final injunctive relief or corresponding declaratory relief with

respect to the class as a whole. (Pl’s Verified Compl. ¶44).

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

Numerosity is met: that is because joining every single Kentucky parent and student is

quintessentially impracticable. Hensley v. Haynes Trucking, LLC, 549 S.W.3d 430, 446 (Ky.

2016). Because declaratory and injunctive relief are the extent of what is sought in this matter, it

is also clear the other C.R. 23.01 factors are met: first, commonality, “that determination of its

truth or falsity will resolve an issue that is central to the validity of each one of the claims in one

stroke.” Id. Again, either the Kentucky Constitution and KRS Chapter 158 requires in person

learning (they do), and possibly, common defenses. Id. But in any event, these cases will rise or

fall based on common questions around the Commonwealth.

And, finally, typicality is met because all of the claims “are all based on the same legal

theory.” Id. at 448.

MOT : 000003 of 000006

Finally, and clearly, the C.R. 23.02 factors are met: inconsistent adjudications on these

important issues around the state does not serve anyone’s interest, and, because as a practical
matter the declaratory and injunctive relief sought in this matter will affect similarly situated

838154FF-A86A-44A1-A559-1FD112C25B17 : 000018 of 000036

parents and students around the state, the factors in C.R. 23.02 are met.

III. CONCLUSION

Class certification should be granted.

Respectfully submitted,

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
25 Town Center Blvd, STE 104
Crestview Hills, KY 41017
513-257-1895 (v)
chris@cwiestlaw.com

/s/Thomas Bruns
Thomas Bruns (KBA 84985)
4750 Ashwood Drive, STE 200
Cincinnati, OH 45241

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

tbruns@bcvalaw.com

/s/Zach Gottesman
Zach Gottesman (86288)
404 East 12 St., First Floor
Cincinnati, OH 45202
zg@zgottesmanlaw.com
Counsel for the Plaintiffs

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing upon the Defendants by ordinary U.S. mail,
this 2 day of February, 2021.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)

NOTICE OF MOTION
MOT : 000004 of 000006

Please take notice that this matter shall come before the Court at its next Motion Hour, unless
previously taken up by the Court.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)
 IN THE BOONE CIRCUIT COURT

838154FF-A86A-44A1-A559-1FD112C25B17 : 000019 of 000036

BOONE COUNTY, KENTUCKY
21-CI-______
Electronically Filed

AARON GILLUM, on behalf of himself and

as next friend and guardian of LG, and NG
minor children PLAINTIFFS

On behalf of himself,f and others similarly situated

(class certification sought under C.R. 23)

v.

Boone County Board of Education, et. al. DEFENDANTS

On behalf of themselves, and on behalf of

all other school boards, school districts, and
Superintendents
((Defendants’’ class certification sought under C.R. 23)
(Defendants

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

PROPOSED ORDER GRANTING CLASS CERTIFICATION
Plaintiffs Motion for Class Certification is hereby GRANTED. The Court finds that
numerosity is met and that joinder of additional defendants would be impractical under C.R.
23.01. The Court also finds common questions of law and fact and typicality under C.R. 23.01.
The Court finds under C.R. 23.02(a) that tthe prosecution of separate actions by or against
individual members of the class would create a risk of (i) inconsistent or varying adjudications
with respect to individual members of the class which would establish incompatible standards of
conduct for the party opposing the class, further finds that (ii) adjudications with respect to
individual members of the class which would as a practical matter be dispositive of the interests
of the other members not parties to the adjudications or substantially impair or impede their
ability to protect their interests; and finds that (b) the party opposing the class has acted or
refused to act on grounds generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the class as a whole.
whole
The Court finds that sufficient notice will be given through media exposure to this case under
C.R. 23.03. And the Court finds that the law and legal issues in this case resolve around
common questions of law and fact, involving required in person instruction for public under
KRS Chapter 158, Ky. Constitution 168, and common defense questions.
MOT : 000005 of 000006

Further, pursuant to C.R. 23.03, the Plaintiff Class is defined as:

All parents in the Commonwealth of Kentucky, with children enrolled in public schools in this
Commonwealth, on behalf of themselves and their children, who desire to have their children
resume full time, in-person instruction.
Pursuant to C.R. 23.03, the Defendant class is defined as:

838154FF-A86A-44A1-A559-1FD112C25B17 : 000020 of 000036

All school boards, school districts, and school Superintendents, who are not offering full time,
in-person instruction options to parents and students.
Pursuant to C.R. 23.03, any class member may enter an appearance through an attorney if the
member so desires; the Court will exclude from the class any member who requests exclusion by

__________________(date), which may be mailed or filed with the Court.

Plaintiffs Counsel are appointed as Plaintiffs’ Class Counsel. Defendants’ Counsel are appointed
as Defendants’ Class Counsel.

IT IS SO ORDERED:

_
________________________________

Presiding Judge: HON. RICHARD A. BRUEGGEMANN (654349)

MOT : 000006 of 000006