Case 3:13-cv-00750-JGH Document 72 Filed 03/20/14 Page 1 of 3 PageID #: 996

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION TIMOTHY LOVE, et al. Plaintiffs v. STEVE BESHEAR, et al. Defendants ) ) ) ) ) ) ) ) )

CASE No. 3:13-CV-750 (JGH) Electronically filed

MOTION TO DISMISS JACK CONWAY, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF KENTUCKY Defendant Jack Conway, in his official capacity as Attorney General of Kentucky, by counsel, hereby moves this Court to dismiss him as a party. While KRS 418.075(1) requires notice to the Attorney General and an opportunity to be heard in any action challenging the constitutionality of any act of the General Assembly, the Attorney General’s participation is not mandatory, but voluntary: While it is clear that the Attorney General must be given notice, the law has never been found to say the Attorney General must then participate. All that is required is the Attorney General be given the opportunity to intervene and be heard on the matter. Indeed, he is only “entitled to be heard.” The courts cannot by judicial fiat simply order the Attorney General to participate and either defend or challenge the constitutionality of a particular statute. The Attorney General is statutorily granted discretion, and it is improper for the court to strip that away. Com. v. Hamilton, 411 S.W.3d 741, 751 (Ky. 2013). The Attorney General is given discretion whether to choose to defend a statute or not. Although the Attorney General initially defended the provisions at issue in this case, after careful consideration of this Court’s Memorandum Opinion of Feb. 12, 2014, the Attorney General has accepted this Court’s analysis that the provisions are unconstitutional. On Mar. 4, 1

Case 3:13-cv-00750-JGH Document 72 Filed 03/20/14 Page 2 of 3 PageID #: 997

2014, the Attorney General announced that he will no longer defend the provisions that this Court has struck down as unconstitutional in its order of Feb. 27, 2014. “The Attorney General, having opted not to defend the statute, is not a party to the action.” Com. v. Kentucky Retirement Systems, 396 S.W.3d 833, 841 (Ky. 2013). Further, there is no longer any controversy between the Attorney General and Plaintiffs. “A justiciable case or controversy must remain extant at all stages of review.” Decker v. Northwest Environmental Defense Center, 133 S.Ct. 1326, 1335 (2013). “The fundamental inquiry as to the justiciability of an issue is whether the ‘conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests . . . .’” Martin v. Attorney General of U.S., 771 F.2d 102, 105 (6th Cir. 1985). After the Attorney General’s announcement, there is currently no substantial controversy or adverse legal interests between Plaintiffs and the Attorney General. Accordingly, the Attorney General respectfully requests that this Court dismiss him as a party from this action. Respectfully submitted, JACK CONWAY ATTORNEY GENERAL /s/ Brian T. Judy Brian T. Judy Assistant Attorney General Office of the Attorney General 700 Capitol Ave., Ste. 118 Frankfort, KY 40601 502-696-5300

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Case 3:13-cv-00750-JGH Document 72 Filed 03/20/14 Page 3 of 3 PageID #: 998

CERTIFICATE OF SERVICE AND NOTICE OF ELECTRONIC FILING I hereby certify that on March 20, 2014, the foregoing was filed with the clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all parties.

/s/ Brian T. Judy Brian T. Judy Assistant Attorney General

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Case 3:13-cv-00750-JGH Document 72-1 Filed 03/20/14 Page 1 of 1 PageID #: 999

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION TIMOTHY LOVE, et al. Plaintiffs v. STEVE BESHEAR, et al. ) ) ) ) ) ) ) ) ) )

CASE No. 3:13-CV-750 (JGH) Electronically filed

Defendants

ORDER The Court, being sufficiently advised, hereby dismisses Defendant Jack Conway, in his official capacity as Attorney General of Kentucky, from this action. The Attorney General announced that he will no longer defend the provisions that this Court has struck down as unconstitutional in its order of Feb. 27, 2014, and reiterated such in his Motion to Dismiss of March 20, 2014. After the Attorney General’s announcement, there is currently no substantial controversy or adverse legal interests between Plaintiffs and the Attorney General. See Decker v. Northwest Environmental Defense Center, 133 S.Ct. 1326 (2013).

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