Entered 18-CI-00073 01/31/2018 Amy Feldman, Franklin Circuit Clerk

COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
CIVIL ACTION NO. 18-CI-00073
DIVISION NO. 1
DONNA HURLEY, Individually and on
behalf of her minor children J.P. and B.P.,
TONYA MELTON, Individually and on
behalf of her minor daughter V.R., and
THE LOTTS CREEK COMMUNITY
SCHOOL, INC. PLAINTIFFS

v. RESTRAINING ORDER (CR 65.03)

STEPHEN L. PRUITT, in his official capacity as

Kentucky Commissioner of Education, KENTUCKY
DEPARTMENT OF EDUCATION, KENTUCKY
BOARD OF EDUCATION, KNOTT COUNTY
BOARD OF EDUCATION, DEFENDANTS

This action is before the Court on the Plaintiffs’ motion for a Restraining Order

under CR 65.03. The Court conducted an evidentiary hearing on January 30, 2018. The

Plaintiffs were represented by Ned Pillersdorf, Randal Strobo and Clay Barkley;

Commissioner Pruitt and the Kentucky Department of Education (KDE) were represented

by Ashley Lant; and the Knott County Board of Education and Superintendent King were

represented by Tim Crawford. The Court heard testimony from Plaintiffs’ witnesses:

Alice Whitaker (Director of Lotts Creek Community School, hereinafter LCCS), Donna

Hurley (parent of Cordia Elementary students), Steven Carter (student at Cordia High

School), and Donna Jenkins (teacher at Cordia Elementary). The Court also heard
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testimony from Defendants, Superintendent Kim King, David Broderick (Deputy State

Fire Marshall), KDE Facilities and Operations employee Keith McCray, Greg Dunbar

(KDE Branch Manager), and Commissioner Pruitt.

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Entered 18-CI-00073 01/31/2018 Amy Feldman, Franklin Circuit Clerk

Based on the testimony at the hearing, the Court finds that the Plaintiffs will

suffer irreparable injury if the Defendants’ plan to close Cordia School is implemented on

February 2, 2018, in that it will disrupt the classroom education of over 200 students,

require those students to spend a large amount of time in bus travel and transportation,

severely and adversely impact the mission of the plaintiff LCCS, and potentially result in

significant financial damages to LCCS for which there is no remedy because of sovereign

immunity.

Having found the likelihood of irreparable injury, the Court further finds that this

case presents significant legal questions concerning the scope of the authority of the

Commissioner of Education. Specifically, the Court questions whether KRS 160.160

grants authority to Commissioner to approve the lease between LCCS and the Knott

County Board of Education; if the Commissioner has that authority, the Court finds that

there is a substantial legal question as to whether the Commissioner may withdraw or

rescind his approval of the lease without affording the LCCS due process under Section 2

of the Kentucky Constitution and KRS Chapter 13B. Mr. Dunbar, the KDE Branch

Manager with direct responsibility for District Facilities, whose expertise was relied on

by Commissioner Pruitt, testified that the Commissioner’s authority to approve the lease

with LCCS was based on 401 KAR 4:090, which appears to address “property disposal”

and has no relevance to the LCCS lease.

Counsel for the defendant school board stated in response to a question from the

Court that he was not aware of any precedent for a Commissioner of Education, or
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Superintendent of Public Instruction, to close a specific school building. Commissioner

Pruitt testified that it was his decision to withdraw his approval for use of the building as

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Entered 18-CI-00073 01/31/2018 Amy Feldman, Franklin Circuit Clerk

a school building, but his authority to make such a decision is a substantial legal question.

Prior to making this decision, the Commissioner and KDE failed to provide any due

process hearing for LCCS or any other party adversely affected by the decision to close

the school.

The Court shares Commissioner Pruitt’s concern about the safety of the students,

faculty and staff in the building at Cordia School. However, the testimony from the

Deputy State Fire Marshall established that the school officials and LCCS were working

with the state Department of Housing, Buildings and Construction (DHBC) to remedy the

problems identified by the State Fire Marshall. He further testified that when a building

owner/operator fails to address the concerns of the State Fire Marshall in acceptable

fashion, the DHBC will initiate an administrative proceeding to revoke the certificate of

occupancy and to close the building to the public. No such proceeding has been initiated

with regard to the Cordia School, and Plaintiffs offered into evidence a letter from a

certified structural engineer that established that the problem with the roof at the multi-

purpose room “does not present a safety issue at all” so long as that area of the school is

closed and locked “to keep children and staff out of contact with this area.” The

undisputed testimony established that the multi-purpose room has been blocked off to

prevent access by students, staff, and teachers.

Accordingly, the Court is required to apply the familiar test of Maupin v.

Stansbury, 575 S.W.2d 695 (Ky. App. 1978), which requires a showing of irreparable

injury, the existence of a substantial legal question, and a balancing of the equities in
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order to support injunctive relief. Here, the balance of equities weighs in favor of issuing

injunctive relief, because of the hardship on the Plaintiffs and the public interest, and “the

Entered 18-CI-00073 01/31/2018 3 Amy Feldman, Franklin Circuit Clerk

Entered 18-CI-00073 01/31/2018 Amy Feldman, Franklin Circuit Clerk

effect will merely be to maintain the status quo.” Id. at 698. In the absence of a

Restraining Order, any injunctive relief later obtained by the Plaintiffs would be

ineffectual.

Upon Motion of the Plaintiffs herein, and the Court being otherwise sufficiently

advised, it is HEREBY ORDERED:

1. Plaintiffs are entitled to injunctive relief. CR 65.01 provides:

A party may obtain injunctive relief in the circuit court by

(a) restraining order, (b) temporary injunction, or (c)
permanent injunction in a final judgment. A restraining
order shall only restrict the doing of an act. An injunction
may restrict or mandatorily direct the doing of an act.
Injunctive relief shall not be granted in any action in the
district court except as specifically authorized by statute.

The Court finds that Plaintiffs will suffer immediate irreparable harm if, during

the pendency of this litigation, Stephen L. Pruitt (“Pruitt”), the Kentucky Department of

Education (“KDE”), the Kentucky Board of Education (“KBE”), and the Knott County

Board of Education (“Knott County BE”) close the Cordia School and force its 230

students to transfer to alternate schools in Knott County.

2. The Court hereby issues and directs this Restraining Order against Stephen

Pruitt, the KDE, the KBE, and the Knott County BE, allowing the Cordia School to

remain open and its students to remain at the Cordia School, until such time as the Parties

and their counsel can be heard on Plaintiffs’ Motion for Temporary Injunction, while this

Court considers Plaintiffs’ claims against Stephen Pruitt, the KDE, the KBE, and the

Knott County BE.

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Entered 18-CI-00073 01/31/2018 4 Amy Feldman, Franklin Circuit Clerk

Entered 18-CI-00073 01/31/2018 Amy Feldman, Franklin Circuit Clerk

3. The parties, through their respective counsel, are directed to appear for

hearing on the Motion for Temporary Injunction, and any motion filed by Defendants to

dissolve this Restraining Order, on February 14, 2018, at the hour of 9:30 a.m.

4. The Defendants may file, or supplement, their Responses to the Motion for

Temporary Injunction, and file any Motion to Dissolve this Restraining Order, on or

before Tuesday, February 6, 2018.

5. The Plaintiffs shall file their Reply in support of their Motion for Temporary

Injunction, and any Response to Defendants’ Motion to Dissolve Restraining Order, on or

before Monday, February 12, 2018.

6. Pursuant to CR 65.05, and it appearing that Defendants cannot be

anticipated to suffer any pecuniary harm from the issuance of the Restraining Order, and

that the Restraining Order is in the public interest, Plaintiff is Ordered to post a bond with

the Clerk of the Franklin Circuit Court in the amount of One Hundred Dollars ($100.00).

Plaintiffs are granted ten (10) days to file this cash bond with the Clerk.

7. The parties and counsel are directed to continue their efforts to meet and

confer in an effort to see if the parties can reach a settlement of the issues before the

Court that will protect the rights of all parties concerned.

ENTERED: 11:00 a.m., this Wednesday, January 31, 2018.

Judge, Franklin Circuit Court

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Entered 18-CI-00073 01/31/2018 Amy Feldman, Franklin Circuit Clerk

DISTRIBUTION:

Clay Barkley
Randal A. Strobo
Strobo Barkley PLLC
239 South Fifth Street, Suite 917
Louisville, Kentucky 40202
Cbarkley@strobobarkley.com
Rstrobo@strobobarkley.com
Ned Pillersdorf
1214 West Court Street
Prestonsburg, Kentucky 41653
pillersn@bellsouth.net

Timothy Crawford
P.O. Box 1206
Corbin, Kentucky 40702
tim.crawford@timecrawfordlaw.com

Ashley Lant
Kentucky Department of Education
300 Sower Blvd., 5th Floor
Frankfort, Kentucky 40601
Ashley.Lant@education.ky.gov

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Entered 18-CI-00073 01/31/2018 6 Amy Feldman, Franklin Circuit Clerk