COMMONWEALTH OF KENTUCKY FRANKLIN CIRCUIT COURT DIVISION I CIVIL ACTION NO. .- COMMONWEALTH OF KENTUCKY, PETITION ER OFFICE OF THE ATTORNEY GENERAL Ex ref. Gregory D. Stumbo in his of?cial capacity as Attorney General of the Commonwealth of Kentucky v. PETITION FOR DECLARATION OF RIGHTS GOVERNOR ERNIE FLETCHER, in his RESPONDENT Of?cial capacity as the Governor of the Commonwealth of Kentucky Serve: Gregory D. Stumho, Attorney General Capitol Building, 700 Capitol Avenue Suite 1 18 Frankfort, KY 40601 The Petitioner, Commonwealth of Kentucky, Of?ce of the Attorney General, by and through the Attorney General of the Commonwealth, Gregory D. Stumbo (?Attorney General?), hereby petitions this Honorable Court pursuant to KRS 418.040 et seq. for a Declaration of Rights against Governor Ernie Fletcher, in his of?cial capacity (?Governor Fletcher?), as follows: INTRODUCTION 1. This is a civil action for declaratory relief ?led by the Attorney General, to ensure that the Boards of Kentuck y?s state universities are lawfully constituted. 2. Governor Fletcher has failed to make appointments to state university Boards that re?ect the political choices and makeup of the people of Kentucky. 3. This issue was initially presented to the Attorney General by Representative Frank Rasche, Chairman of the House Education Committee, by letter dated August 24, 2007. See: Exhibit 1. 4. Chairman Rasche stated that the Boards of Trustees for the University of Kentucky (UK), and the University of Louisville (U of L), were ?not in statutory alignment.? Chairman Rasche supported his position by submitting documentation prepared by the non-partisan Legislative Research Commission (LRC). See: Attachment to Exhibit 1. 5. The Attorney General forwarded the LRC data to Governor Fletcher by letter dated August 27, 2007. See: Exhibit 2. The Attorney General apprised the Governor of the law and facts, urging him to voluntarily undertake corrective action to avoid the necessity of legal action. 6. Governor Fletcher refused to recognize or abide by the controlling law, and rejected attempts to resolve this matter without litigation. Sec: Letter reaponding to the Attorney General dated September 5, 2007, appended hereto as Exhibit 3. 7. Subsequent investigation has revealed that the lack of balance on state university Boards extends to ?ve (5) of Kentucky?s six (6) regional institutions of higher learning, including the Boards of Regents of Eastern Kentucky University Murray State University (?Murray?), Western Kentucky University Kentucky State University (?Kentucky State?) and Northern Kentucky University Only Morehead State University appears to have a legally balanced Board. 8. Governor Fletcher has favored his own partisan interests by making ?fty (50) appointments to state university Boards, of which thirty-three (33) have been Republican and seventeen (17) have been Democratic, in clear violation of the fair and proportional representation guaranteed to Kentucky?s citizens. One (1) gubernatorial appointment has been an Independent. 9. It is now necessary to seek the guidance of this Honorable Court in advising the Attorney General and the Governor as to the correct application of the laws at issue. This Petition for Declaration of Rights is brought in the interests of judicial economy and governmental comity, to ensure the following: A. To minimize disruption and uncertainty for state universities pending prompt resolution of this important matter; B. To permit correction of flaws in the Governor?s nomination and appointment process, should it be found to be legally de?cient; C. To spare individual Trustees and Regents the personal expense unavoidably accompanying ouster actions; D. To allow the Governor to voluntarily undertake corrective action which might reduce or eliminate the necessity of ouster actions directed at individual Trustees or Regents. PARTIES 10. The Attorney General is the popularly elected chief law enforcement of?cer of the Commonwealth of Kentucky. The Attorney General is an independent Constitutional Of?cer with authority to prosecute all cases in which the Commonwealth has an interest, including suits to enforce the laws of the state, preserve order, and protect public rights. Commonwealth ex. rel. Hancock v. Paxton, 516 865 (Ky. 1974). 11. The Governor is the chief executive of?cer of the Commonwealth of Kentucky, authorized by Ky. Coast. Sec. 93 to appoint Inferior State Of?cers and members of Boards and Commissions only in the marmer prescribed by law. JURISDICTION AND VENUE 12. An actual and justiciable controversy exists and this court has jurisdiction of this matter pursuant to KRS 413.040. This Court may make a binding declaration of relative rights, duties and responsibilities of the parties hereto under the Kentucky Constitution and related state laws. 13. The Franklin Circuit Court is the appropriate venue for this action pursuant to KRS 452.405. STATEMENT OF APPLICABLE LAW 14. Section 93 of the Kentucky Constitution provides: State of?cers and members of boards and commissions, not speci?cally provided for in this Constitution, may be appointed or elected, in such maimer as prescribed by 15. The General Assembly may limit the Governor?s constitutional authority to appoint members to boards and commissions by statute creating a ?proper category or classi?cation of membership,? so long as the General Assembly does not give itself direct or indirect authority to appoint in violation of the separation of powers doctrine as an incursion upon executive authority. Sitbert v. Garrett, 246 S.W.455 (Ky. 1922); Legislative Research Commission v. Brown, 664 907, 922-924 (Ky. 1984). l6. Gubernatorial appointments to the of Board of Trustees are governed by KRS which states as follows: The Governor shall make his at-large appointments so as to divide the citizen representation on the board to re?ect proportional representation of the two (2) leading political parties of the Commonwealth based on the state voter 17. Gubernatorial appointments to the UK. Board of Trustees are governed by KRS 164.13 which states as follows: The Governor shall make the appointments so as to re?ect proportional representation of the two (2) leading political parties of the Commonwealth based on the state voter 18. Gubernatorial appointments to the Boards of Regents of the state regional universities are governed by which states as follows: appointments shall re?ect the proportional representation of the two (2) leading parties of the commonwealth based upon voter registration. . . STATEMENT OF USTICIABLE CONTROVERSY 19. On November 4, 2003, immediately prior to the 2003 general election, the Voter Registration Statistics Report compiled and published by the State Board of Elections shows that 1,585,818 Kentucky voters were registered as Democrats and 944,19? were registered as Republicans. This establishes a ratio of 62.7% Democratic to 37.3% Republican. See: 2003 Report attached as Exhibit 4. 20. On August 15, 2007, the most recent Voter Registration Statistics Report compiled and published by the State Board of Elections shows that 1,600,690 Kentucky voters were registered as Democrats and 1,031,035 were registered as Republicans. This establishes a ratio of 60.8% Democratic to 39.2% Republican. See: 2007 Report, attached as Exhibit 5. 21. The Board at of L, which has 17 gubernatorial appointments, should by statute be made up often (10) Democrats and seven Republicans. The Board at UK, which has 16 gubernatorial appointments, should similarly be made up of ten (10) Democrats and six (6) Republicans. Each of the regional universities Boards, which have eight (8) gubernatorial appointments, should have ?ve (5) Democrats and three (3) Republicans. This simple calculation applies the registration ?gures most favorable to Governor Fletcher?s position, which are contained the August 15, 2007 Report. Calculations do not include the potential appointment of Independents. 22. Governor Fletcher has appointed eight (8) Republicans and two (2) Democrats to the of Board. Currently, a total of nine (9) Republican and eight (8) Democratic appointees sit on the of Board of Trustees. The Board is therefore out of balance by (2) Republican appointees in excess of the legal limit. See: LRC documentation attached to Exhibit I, stating: ?According to the statute, of the 17 appointed members, there should be about 10 Democrats and seven Republicans." 23. Governor Fletcher has appointed seven (7) Republicans and two (2) Democrats to the UK Board. Currently, a total of nine (9) Republican and seven (7) Democratic appointees sit on the UK Board of Trustees. The Board is therefore out of balance by three (3) Republican appointees in excess of the legal limit. See? LRC documentation attached to Exhibit 1, stating: ?According to the statute, of the 16 appointed members, there should be about 10 Democrats and 6 Republicans.? 24. Upon information and belief, it is stated that one of Governor Fletcher?s appointees to the UK. Board may have recently switched party allegiance from Republican to Democrat. The Commonwealth alleges that this occurrence is immaterial to resolution of this matter, as the quali?cations of any gubernatorial appointee must be determined as of the date of appointment: rather than by any reference to subsequent events. 25. Governor Fletcher has appointed (4) four Republicans and (1) one Democrat to the WKU Board of Regents. Currently, a total of ?ve (5) Republican and three (3) Democratic appointees sit on the WKU Board. The Board is therefore out of balance by two (2) Republican appointees in excess of the legal limit. Attached as Exhibit 6 is a tabulation of the party af?liations of the WKU Board of Regents provided by the University. 26. Governor Fletcher has appointed four (4) Republicans and two (2) Democrats to the EKU Board of Regents. Currently. a total of" ?ve (5) Republican and two (2) Democratic appointees sit on the EKU Board. The Board is therefore out of balance by two (2) Republican appointees in excess of the legal limit. Attached as Exhibit 7 is a tabulation of the party af?liatiml of the EKU Board ofRegents provided by the University. 27. Governor Fletcher has appointed two (2) Republicans and three (3) Democrats to the Murray Board of Regents. Currently, a total of four (4) Republican and lbur (4) Democratic appointees sit on the Murray Board. The Board is therefore out of balance by one (1) Republican appointee in excess of the legal limit. Attached as Exhibit 8 is a tabulation of the party af?liation of the Murray Board of Regents provided by the University. 28. Govemor Fletcher has appointed three (3) Republicans and one (I) Democrat to the NKU Board of Regents. Currently, a total of four (4) Republican and four (4) Democratic appointees sit on the NKU Board. The Board is therefore out of balance by one (1) Republican appointee in excess of the legal limit. Attached as Exhibit 9 is a tabulation of the party af?liation of the NKU Board of Regents provided by the University. 29. Governor Fletcher has appointed three (3) Republicans and one (I) Democrat currently serving on the Kentucky State Board of Regents. Currently, a total of ?ve Republican and three (3) Democratic appointees sit on the Kentucky State Board. The Board is therefore out of balance by (1) Republican appointee in excess of the legal limit. Attached as Exhibit 10 is a tabulation of the party af?liation of the Kentucky State Board of Regents provided by the University. 30. The cumulative effect of the Governor?s appointments is that the citizens currently serving on the Boards of Kentucky?s universities do not re?ect the proportional representation of the two (2) leading political parties of the Commonwealth based upon the state?s voter registration. This effect directly undercuts the statutory protections guaranteed to the citizens of Kentucky. 31. Governor Fletcher?s partisan appointments have produced an imbalance whereby the minority party by voter registration now holds a disproportionate number of the appointments on the state university boards in clear violation of the proportional representation statutes, KRS 164.1316), 164.821 and 164.3216). WHEREFORE, the Petitioner Commonwealth of Kentucky demands as follows: 1. That this Honorable Court adjudicate the relative rights, responsibilities and duties of the parties and enter into a binding declaration of rights which ?nds: A. That compliance with KRS 164. 3 KRS 164.8216) KRS 164.3218) is mandatory, rather than advisory; B. That Governor Fletcher has failed to comply with KRS KRS 164.8216) KRS 164.3216) in appointing members to the Boards of Trustees of UK and of L, and the Boards of Regents of the state regional universities during his term as Governor; 2. For any and all other relief to which the Commonwealth. may be entitled. Respectfully submitted, ATTORNEY NER AL Of?ce ot?the Attorney General Capitol Building, Suite 1 18 700 Capitol Avenue Frankfort, KY 40601?3449 (502) 696-5300 (502) 564-8310 FAX Pierce Whites DEPUTY ATTORNEY GENERAL Robert S. Jones ASSISTANT ATTORNEY GENERAL Ryan M. Halloran ASSISTANT ATTORNEY GENERAL