IN THE BOONE CIRCUIT COURT

BOONE COUNTY, KENTUCKY

21-CI-161
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, 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)

MEMORANDUM IN OPPOSITION TO MOTION TO STAY

There is absolutely no basis for the Defendants’ Motion. It is true that the Governor has

initiated litigation over Senate Bill 1, but it is also true that Judge Shepherd has not enjoined any

parts of Senate Bill 1. Senate Bill 1 enjoys a strong presumption of constitutionality. Caneyville

Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790 (2009). Indeed, so

strong is the presumption that the Kentucky Supreme Court has explained that the presumption

must be overcome beyond a reasonable doubt because it is critical to defer to the "voice of the

people as expressed through the legislative department of government." Id. at 806. Thus, a

“constitutional infringement must be ‘clear, complete and unmistakable’ in order to render the

statute unconstitutional.” Id.

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 The Defendants argue that the parties agreed in the Beshear v. Osborne action, that

Senate Bill 1 did not take effect immediately – but that is not true.1 Certainly, when it comes to

how long the Governor’s executive orders can be in effect, Section 2 of the Bill (enrolled copy

attached hereto) gives the Governor 30 days of effectiveness regarding his orders. See Enrolled

SB1, attached hereto. But Section 4, which governs the Governor’s ability to suspend statutes,

has no such 30-day limitation on it. Id. And Section 11 contains an emergency clause. Id. The

portion of the legislation that governs the suspension of statutes is thus in effect now.

Section 55 of the Kentucky Constitution provides:

No act, except general appropriation bills, shall become a law until ninety days after the
adjournment of the session at which it was passed, except in cases of emergency, when,
by the concurrence of a majority of the members elected to each House of the General
Assembly, by a yea and nay vote entered upon their journals, an act may become a law
when approved by the Governor; but the reasons for the emergency that justifies this
action must be set out at length in the journal of each House.

(emphasis added).

Setting forth the emergency, and presupposing that there is a rational basis for such a

declaration, courts will uphold the declaration, and the legislation will take immediate effect.

Zuckerman v. Bevin, 565 S.W.3d 580, 604 (2018). Such is the case here: Section 11 of SB1

indicates that COVID-19 response, and its impact on Kentucky citizens, requires immediate

action. See Enrolled SB1, Section 11, attached hereto.2

1
The effectiveness of the legislation was not the operative discussion, but rather the continued
effectiveness of the “Executive Orders and Administrative Regulations promulgated by the
Governor remain in full force and effect for at least 30 days.” Equally, however, nothing in
Judge Shepherd’s order binds Mr. Gillum or other members of the putative class. They are not
parties to that action. And, this Court obtained jurisdiction of this matter (and probably before)
the Governor’s action was filed.
2
One of the arguments that Governor Beshear makes in his attack on SB1 is that it does not take
immediate effect because he vetoed it. That argument is foreclosed by over 120 years of case
law. Commissioners of Sinking Fund v. George, 104 Ky. 260, 270-272 (1898) (concluding that
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 It bears noting that Defendants Motion for Stay runs directly contrary to the legislative

directives contained in SB1. Defendants seek a pause. But the elected representatives of

Kentucky, by overwhelming majorities, determined that the situation, including school closures,

were of such a paramount emergency that they required immediate correction. The Defendants’

request for a stay ignores the very will of the citizens of the Commonwealth of Kentucky, which

are the "voice of the people as expressed through the legislative department of government,"

which, should not be ignored by Courts. Caneyville Volunteer Fire Dep't, 286 S.W.3d 790, 806.

Defendants also claim that 2021 RS SB1 raises “serious constitutional questions,” but

they do not set those questions out in any detail. Of all of the things that 2021 RS SB1 does, the

least assailable is the restrictions on the suspension of statutes. Section 15 of Kentucky’s

Constitution is clear, that the power to suspend statutes can only be exercised with the authority

of the General Assembly or with its authority: “No power to suspend laws shall be exercised

unless by the General Assembly or its authority.”

The Kentucky Supreme Court has repeatedly recognized that this power rests with the

General Assembly, and it alone can determine when, whether, and upon what conditions the

power to suspend statutes can be exercised. Commonwealth ex rel. Beshear v. Bevin, 575

S.W.3d 673, 679-680 (2019). Indeed, absent statutory authority, the Governor has no “implicit”

authority to suspend statutes. Baker v. Fletcher, 204 S.W.3d 589 (2006); Beshear v. Haydon

Bridge Co., 304 S.W.3d 682 (2010); Fletcher v. Office of the AG. ex rel. Stumbo, 163 S.W.3d

852 (2005). The Supreme Court in Fletcher went so far as to recognize that the “suspension of

by reading both Section 55 and Section 88 together, a bill that contains an emergency clause
takes immediate effect, a Governor’s veto notwithstanding).

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statutes by a Governor is also antithetical to the constitutional duty to ‘take care that the laws be

faithfully executed." Id. at 872.

So much for Defendants’ arguments about “serious constitutional questions” (at least

when it comes to the statute suspension provisions of Section 4 of 21 RS SB1).

As their final argument, the Defendants (correctly) point out that the students have been

out of school since March, 2020, and, argue “what is a few more weeks?” There are numerous

compelling responses to this argument.

The first is, until 2021 RS SB1, the students being out of school in contravention to KRS

Chapter 158, had the backing of the law, because the Governor’s orders excused compliance

with those requirements. That is no longer the case.

The second, even more compelling argument is that these students have lost quality

education since March, 2020, and as the studies referenced in our Complaint make clear, these

students are being irreparably harmed. (Pl.’s Ver. Compl., ¶¶ 13-18). Student suicides and

mental health issues are on the rise. Id. This is literally a life and death issue.

Defendants’ actions in failing to comply with the statutory requirements to resume in

person instruction demonstrate their ostrich-approach to these serious issues and secondary

effects, while their attempts to obtain a stay simply confirms what we already know: they

apparently do not care, at least not about the well-being of the students they are required to

provide an efficient education for. But thankfully the parents of the affected children do. And

this Court should as well.

Which brings us to the third response to Defendants’ argument about the “what’s a few

more weeks” argument, which is the extraordinary importance that public education has in our

Commonwealth compels immediate action. In Rose v. Council for Better Educ., 790 S.W.2d 186

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

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.

If the value of a quality public education is of “immeasurable worth,” is it acceptable to

continue to deny it to millions of Kentucky students for a few more weeks? Would ignoring

their plight for a few more weeks be consistent with the Kentucky Supreme Courts admonition

that courts be “ever mindful” to the importance of these issues? Is turning a blind-eye to the

deprivation of the right to such an education under Kentucky’s Constitution for a few weeks

consistent with the observation that such a right is “perhaps the most important function of state

and local governments?”

The answer to these questions is this: the fact that Kentucky students have been deprived

of this important right, guaranteed in statute and in the Kentucky Constitution since March,

2020, coupled with the fact that this and other pressing issues were deemed to be an emergency

by Kentucky’s legislative branch, passed by substantial majorities, requiring immediate – not

delayed – correction, and demonstrates a stay is not warranted. Rather, immediate action is

called for. The law requires it. The equities require it. Kentucky’s parents and students require

it.

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 Conclusion

Defendants’ Motion for Stay should be denied.

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
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 filing same
electronically, which will provide notice to counsel for the Defendants this 6th day of February,
2021.

/s/Christopher Wiest________
Christopher Wiest (KBA 90725)