Beshear asks judge to dismiss KY auditor’s lawsuit over kinship caregiver law
Lawyers for Kentucky Gov. Andy Beshear asked a Frankfort judge Wednesday for a lawsuit against his office brought by the Republican state auditor to be dismissed, arguing that the basis of the complaint is “manufactured controversy.”
Auditor of Public Accounts Allison Ball sued Beshear in May in to “compel (the governor) and the Cabinet for Health and Family Services” to implement a kinship caregiver law from 2024. Senate Bill 151, passed with bipartisan support, is a law that allows relatives who agree to take care of abused or neglected children more time to apply for foster care benefits.
According to Ball, the law “creates a much-needed window of time for kinship caregivers to evaluate whether a particular route of kinship caregiving is best suited for them and, most importantly, the child for whom they are caring,” her office wrote in a 90-page court filing in May. “But SB 151 is in limbo” because Beshear and the cabinet “refuse to execute it.”
In order to implement the new law, it falls to the executive branch to promulgate new administrative regulations and earmark appropriate funding.
This is the point of friction between Beshear and the cabinet and the auditor’s office: Beshear and the cabinet have said cost of making the changes required in the law cost an estimated $20 million — an amount Beshear has said doesn’t exist, since it falls to the General Assembly, not the executive branch, to allocate in order to fund the law. Since the General Assembly has not allocated that funding, Beshear has said his hands are essentially tied.
Ball’s office has claimed Beshear and the cabinet are violating state statute by “refusing to comply” with her investigative authority, as well as not implementing a law duly passed by lawmakers, and that both are obstructing the auditor’s probe into why the law hasn’t been enforced.
Amidst multiple requests for information between Ball’s and Beshear’s offices and a probe into whether the cabinet has the money to fund the law, Ball sued this spring. In doing so, she is “exercising her investigatory authority” in an effort to “figure out who is right and create a path forward for Gov. Beshear and CHFS to carry out SB 151 for the benefit of kinship caregivers and the children for whom they are caring,” according to the initial filing.
The lawsuit ratcheted up the friction between her department and Beshear.
Former Beshear spokesperson Crystal Staley said in the spring that it was “disappointing the auditor would file a taxpayer-funded lawsuit without even attempting to speak with the administration about the issue first.”
Sen. Julie Raque Adams, a Louisville Republican who was the lead sponsor of Senate Bill 151, told a cabinet official in May that it was a “joke” the cabinet and Beshear have not implemented the law.
“The cabinet has full discretion to implement what they want to implement . . . and the governor is not a dictator. He’s not a king. He has to follow the law. In this instance, he is not following the law,” Adams said.
“At this time, there is just no case and controversy before this court because there has been no obstruction,” Wesley Duke, attorney for the cabinet, told Franklin Circuit Judge Thomas Wingate Wednesday morning.
In addition to compelling Beshear and the cabinet to implement the kinship caregiver law, “(Ball) is seeking to investigate whether the cabinet actually has money to either implement or partly implement Senate Bill 151,” Taylor Payne, an attorney for Beshear, added
But the auditor, in her statutory role as an agent who “audits public agencies,” Payne said, “has zero standing to seek the enforcement of Senate Bill 151.”
Lawyers for the cabinet and Beshear primarily argued that Ball is outside her statutory authority as auditor to actually sue either the executive branch or the state agency, in part because her office cannot prove it has been legally injured by the alleged actions of either Beshear or the cabinet — a requirement in order for a court to find that a plaintiff has legal standing to sue.
“The auditor just does not have standing to bring this action,” Duke said.
But Alex Magera, attorney for Ball, said the point of the lawsuit is to force Beshear and the cabinet to allow his client to exercise her investigative authority, because they have so far refused — a point contested by their attorneys.
“We weren’t given any other relevant information to Senate Bill 151, even though we asked for it. We weren’t given any of the contracts we asked for, we weren’t given the list that CHFS said is too burdensome,” Magera said. “I guess the point is, judge, if you really compare what we asked for and what we were given . . . I actually counted about eight separate refusals. If the suggestion is that we need to send subpoenas to every single person we want to interview in the cabinet (and) information request we make, we thought that tying this up in one bow at this stage, where there have been clear refusals to provide information, that this would be the best way to do it.”
Duke retorted by saying, “that’s just not true.”
“I think it might be creating a bad precedent to allow an auditor to sue,” Wingate said.
Wingate said he will make a decision in the coming weeks whether to fulfill the Cabinet’s and Beshear’s request to dismiss.
