The next group of parties-plaintiff is twenty-two students, suing by and through their
parents as next friends, who most certainly would have standing to sue, but who had
no right to relief unless and until first they pleaded and proved they had been
damaged in some specific manner by a named defendant's violation of their
constitutional rights. No evidence was presented that such was the case.
Only five of the students were even mentioned in the proof, and only one of these
five testified, a ninth grade student in the Dayton Independent School District
system who said there were computer courses she would like to take if available, and
that only Spanish, not French or Latin, were offered in her school. Certainly this
evidence falls short of proving a case on her behalf. There is no evidence at all to
sustain the claims of the remaining plaintiffs.
The fundamental error in the trial court, and in our Court, is that the claims of these
individual students were treated as a vehicle for a class action on behalf of the entire
student body of Kentucky seeking declarative judgment relief against the General
Assembly. The students were given relief of a nature appropriate to a class action,
not to the violation of their individual rights. These students never legally
represented anybody but themselves. None of the requirements for a class action
were followed. Nevertheless, the trial court referred to the students and their parents
as "representing as a class all similarly situated students in Kentucky's districts."
Our Majority Opinion acknowledges that the trial court erred, that "there was no
class action." But, as in the trial court, in our Majority Opinion the relief granted was
of a type appropriate to a class action, but wholly inappropriate to a suit by an
individual student seeking a judicial remedy for a specific deprivation of rights. There
was no proof supporting their claim as individuals and they had no right to relief as
representatives of the class.
The problems with parties-defendant are even more glaring and insurmountable. The
case below included as defendants the Governor, the Superintendent of Public
Instruction, the State Treasurer, and the State Board of Education, as well as the
President Pro Tempore of the Senate and the Speaker of the House of
Representatives. The Governor, the Superintendent of Public Instruction, the State
Treasurer, and the State Board of Education, although appearing in the suit below,
took no appeal from the final judgments, presumably because their authority was not
seriously challenged nor were they required to do anything specific by its terms.
John A. Rose, President Pro Tempore of the Senate, and Donald J. Blandford,
Speaker of the House of Representatives, are the only parties-defendant on this
appeal. [FN3]
[FN3. The judgment is final as to the Governor, whether meaningless
or not. Nevertheless, Justice Gaunt's Opinion suggests that the case
"should be remanded to the Franklin Circuit Court with direction to
immediately issue writs of mandamus requiring the Governor to call an
Extraordinary Session of the General Assembly." This shows how far
one's thinking can go once we forget we are confined to the limitations
of a justiciable controversy.]
The fundamental problem is, of course, how does one sue the General Assembly, a
legislative body but not a body corporate, to force them to take action, or to declare
unconstitutional their actions or non actions not embodied in any specific legislation.
The General Assembly does not exist as a legal entity apart from its specific
legislative acts. Our Majority Opinion cites as authority Seattle Such. Dist. No. 1 of
King Catty. v. State, 90 Wash.2d 476, 585 P.2d 71 (1978), but this case never
discussed by what authority the legislature of the State of Washington can be sued
by naming the Speaker of the House and President of the Senate. On the other hand,
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