City of Pikeville, Kentucky v. Kentucky Concealed Carry Coalition, Inc.

RENDERED: APRIL 27, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0053-DG
CITY OF PIKEVILLE, KENTUCKY; APPELLANTS
BOARD OF COMMISSIONERS CITY
OF PIKEVILLE, KENTUCKY; CITY OF
PIKEVILLE EXPOSITION CENTER
CORPORATION; JAMES A. CARTER;
AND PHILIP R. ELSWICK
ON REVIEW FROM COURT OF APPEALS
V. NO. 2020-CA-0437
PIKE CIRCUIT COURT NO. 18-CI-00602
KENTUCKY CONCEALED CARRY APPELLEE
COALITION, INC.
OPINION OF THE COURT BY JUSTICE NICKELL
REVERSING AND REMANDING
Under the Kentucky Constitution, circuit courts “have original
jurisdiction of all justiciable causes not vested in some other court.” Ky. Const.
§ 112(5). Courts, thus, do not possess freestanding subject-matter jurisdiction
to evaluate the legality of actions taken by the other branches of government
upon the complaint of a concerned citizen unless the citizen demonstrates, at a
minimum, a cognizable injury to his or her rights by the opposing party.
We granted discretionary review to evaluate the reversal by the Court of
Appeals of a summary judgment granted by the Pike Circuit Court dismissing
Kentucky Concealed Carry Coalition’s (KC3) claims that the City of Pikeville,
Kentucky, (the City) and its agents violated KRS1 65.870, which generally
prohibits the regulation of firearms by local government. Having determined
KC3 lacked constitutional standing to assert the claims raised in its complaint,
we reverse the Court of Appeals and remand to the trial court with instructions
to dismiss the action in its entirety, without prejudice.
KC3 is a non-profit Kentucky corporation comprised of individuals “who
work to protect the Second Amendment from over-regulation and implement
the right of Kentucky’s citizens to carry firearms either openly or concealed, in
accordance with the laws and Constitutions of the Commonwealth of Kentucky
and the United States.”2 By posted policy and the operation of various rules
and contractual provisions, the City and its agents effectively prohibit both the
open and concealed carrying of firearms within certain buildings and properties
owned, leased, or occupied by the City. These properties include the Expo
Center3, the Garfield Community Center, the Fire Department Training Center,
the RV Park and recreational shelters located in Bob Amos Park, and the City’s
parks.4
KC3 filed suit against the City, James A. Carter, in his official capacity as
Mayor, Philip R. Elswick, in his official capacity as City Manager, the Board of
1 Kentucky Revised Statutes.
2 Paragraph 11 of KC3’s complaint.
3 Currently known as the Appalachian Wireless Arena.
4Count 4 of the Complaint references the prohibition of firearms in “any City of
Pikeville Park” and “any city park.”
2
Commissioners, and the City of Pikeville Exposition Center Corporation. In its
complaint, KC3 alleged the City’s prohibition on firearms within the properties
constituted unlawful local regulation in violation of KRS 65.870. KC3 further
alleged the City implemented an unlawful policy prohibiting the possession of
firearms within any RV or other vehicle on the premises of the RV Park in
violation of KRS 527.020. KC3 sought declaratory relief, injunctive relief, and
an award of attorney’s fees, costs, and expenses.
In its answer, the City asserted its posted policies, rules, and contract
provisions regarding the possession of firearms upon the City’s properties were
authorized by the federal Gun-Free School Zones Act of 1990, 18 U.S.C.5 §§
921-922, in conjunction with companion legislation encouraging the posting of
signs by local authorities as well as KRS 527.070 which prohibits the
possession of a weapon on school property and also requires relevant signage.
Additionally, the City asserted KRS 237.110 and KRS 244.125 authorized the
prohibition on the possession of firearms at certain events at the Expo Center
where alcoholic beverages are served by the drink. The City sought dismissal
of the complaint and an award of attorney’s fees, costs, and expenses.
The parties filed cross-motions for summary judgment. The trial court
recounted the undisputed evidence that the Expo Center, Garfield Community
Center, Fire Department Training Center, and the City of Pikeville Park6 were
5 United States Code.
6 As opposed to Count 4 of the complaint, which referenced “any city park,” the
trial court’s ruling on summary judgment concerns the “City of Pikeville Park,”
which refers to a specific location.
3
all located within 1000 feet of the Pikeville Elementary School. The trial court
further noted the Expo Center regularly hosts school-related activities, such as
basketball and archery tournaments. Moreover, the trial court recognized that
many other events at the Expo Center, such as music concerts, are operated in
a proprietary, rather than public, capacity. During such private events, the
prohibitions on the possession and carrying of firearms were the result of
contractual negotiations and obligations rather than governmental action.
Regarding the RV Park, the trial court noted the undisputed evidence
that the RV Park was located within 1000 feet of the City’s soccer field, junior
high school football field, tennis courts, and track and field facilities. It noted
these sporting facilities are subject to a use agreement between the City and
the Pikeville Independent School Board allowing the School Board non-
exclusive use of the City’s property to operate school sports programs. As a
result, the trial court concluded each of the properties were subject to the Gun-
Free School Zones Act and KRS 527.070. In addition, the trial court concluded
the provisions of KRS 65.870 did not preclude the City from enforcing the
applicable federal and state laws prohibiting the possession of firearms upon
its properties.
Based upon the foregoing legal conclusions, the trial court entered
summary judgment in favor of the City and dismissed KC3’s complaint. By
separate order, the trial court determined the City was the prevailing party and
awarded $15,404.97 in attorney’s fees pursuant to KRS 65.870(4).
4
On direct appeal, the Court of Appeals reversed and remanded for further
proceedings. The Court of Appeals held the City was not permitted to enforce
an informal blanket prohibition on the possession and carrying of firearms
upon the properties, concluding:
(1) under the Gun-Free School Zones Act, the City was permitted to
prohibit the open carrying of firearms upon any of its properties
located within 1000 feet of a school;
(2) any other prohibition regarding the concealed carrying of
firearms upon the properties could only be enforced pursuant to
a duly enacted ordinance under KRS 237.115(2);
(3) private renters of the Expo Center’s facilities have the right to
prohibit the carrying of firearms at such private events; and
(4) the City may not prohibit the lawful storage of firearms within a
vehicle under KRS 527.020(4) and KRS 527.020(8).
Because the Court of Appeals reversed the grant of summary judgment and
remanded for further proceedings, the Court also reversed the award of
attorney’s fees to the City. We granted discretionary review.
The parties appeared at oral argument before this Court on February 8,
2023. During oral argument, the Court raised the issue of constitutional
standing because it did not appear KC3 or any of its members had been
injured by the City’s allegedly unlawful prohibition on the possession and
carrying of firearms. In response to questioning from the Court, counsel for
KC3 stated there were affidavits attached to the complaint from members who
had been denied entry to the Expo Center.
5
The Court additionally inquired whether Pikeville Code of Ordinances
(PCOD) Title XIII § 130.157 had any impact upon the outcome of the
proceedings, given both the Court of Appeals and the trial court appeared to
operate under the impression that no applicable ordinance existed. To clarify
the issue concerning the validity of the ordinance, the Court orally requested
the parties to jointly supplement the record.
On March 1, 2023, the parties filed a joint supplemental record entry.
The supplemental record suggests PCOD § 130.15 is, in fact, currently in effect
as duly amended by the City of Pikeville Commission on February 11, 2013.
The parties did not present any evidence the ordinance had been nullified by
judicial order or otherwise repealed by the legislative body. Additionally, KC3
filed a notice acknowledging the complaint does not contain any attached
affidavits concerning alleged injuries to its members, and instead directed our
attention to the allegations contained in paragraphs 12, 19, and 100 of its
complaint.
7 PCOD Title XIII § 130.15 states in pertinent part:
(A) It shall be unlawful to enter into or upon any building owned, leased or
occupied by the City of Pikeville or its agencies by a licensee carrying a
concealed deadly weapon pursuant to a license granted in KRS 237.110 except
buildings used for public housing by private persons, highway rest areas, firing
ranges, and private dwellings owned, leased, or controlled by the City of
Pikeville.
(B) The areas in which the carrying of concealed deadly weapons is prohibited
hereunder shall be clearly identified by signs posted at the entrance to the
restricted area.
6
CONSTITUTIONAL STANDING, GENERALLY
To begin, Kentucky “courts do not function to give advisory opinions,
even on important public issues, unless there is an actual case in controversy.”
Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992). Standing must be addressed
as a threshold matter because “all Kentucky courts have the constitutional
duty to ascertain the issue of constitutional standing, acting on their own
motion, to ensure that only justiciable causes proceed in court8, because the
issue of constitutional standing is not waivable.” Commonwealth, Cabinet for
Health & Fam. Servs., Dept. for Medicaid Servs. v. Sexton ex rel. Appalachian
Reg’l Healthcare, Inc., 566 S.W.3d 185, 192 (Ky. 2018).
The justiciability requirement operates as a constitutional limitation on
the exercise of judicial power. Id. at 193. While the practical effect of the
standing requirement is to avoid speculation and debate over abstract or
hypothetical questions, the purpose of the doctrine is “founded in concern
about the proper—and properly limited—role of the courts in a democratic
society.” Warth v. Seldin, 422 U.S. 490, 498 (1975). The standing doctrine
“serves to prevent the judicial process from being used to usurp the powers of
the political branches . . . and confines the . . . courts to a properly judicial
role.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citations omitted).
The United States Supreme Court has “repeatedly held that an asserted
right to have the Government act in accordance with law is not sufficient,
8 As noted above, the Kentucky standing requirement derives from Section
112(5) of the Kentucky Constitution.
7
standing alone, to confer jurisdiction on a federal court.” Allen v. Wright, 468
U.S. 737, 754 (1984), abrogated on other grounds by Lexmark Intern., Inc. v.
Static Control Components, Inc., 572 U.S. 118, 126 (2014). This Court has
adopted the federal Lujan test to determine whether a party has standing.
Sexton, 566 S.W.3d. at 196; see Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). We explained the test for constitutional standing in Kentucky as
follows:
[F]or a party to sue in Kentucky, the initiating party must have the
requisite constitutional standing to do so, defined by three
requirements: (1) injury, (2) causation, and (3) redressability. In
other words, “A plaintiff must allege personal injury fairly traceable
to the defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.” “[A] litigant must demonstrate
that it has suffered a concrete and particularized injury that is
either actual or imminent . . . .” “The injury must be . . . ‘distinct
and palpable,’ and not ‘abstract’ or ‘conjectural’ or ‘hypothetical.’”
“The injury must be ‘fairly’ traceable to the challenged action, and
relief from the injury must be ‘likely’ to follow from a favorable
decision.”
Sexton, 566 S.W.3d. at 196 (footnotes omitted).
Because the standing requirements contained in the Kentucky
Constitution mirror the standing requirements under the United States
Constitution, federal decisions on standing may be accepted as persuasive
authority. Ward v. Westerfield, 653 S.W.3d 48, 52 (Ky. 2022). The Sixth
Circuit Court of Appeals aptly explained the meaning of the injury requirement
as follows:
The requirement that an injury be “concrete and particularized”
has two discrete parts: concreteness, which is the requirement
that the injury be “real,” and not “abstract,” . . . and
8
particularization, which is the requirement that the plaintiff
“personally [have] suffered some actual or threatened injury.”
Thompson v. Love’s Travel Stops & Country Stores, Inc., 748 Fed. Appx. 6,
8 (6th Cir. 2018) (internal citations omitted).
Moreover, a court must determine whether a party has established
standing for each “of the particular claims asserted.” Allen, 468 U.S. at 752.
Each separate claim must be carefully scrutinized because “standing is not
dispensed in gross.” Davis v. Federal Election Comm’n, 554 U.S. 724, 734,
(2008) (alteration omitted) (quoting Lewis v. Casey, 518 U.S. 343, 358, n. 6
(1996)).
If a plaintiff fails to establish constitutional standing, the case should be
dismissed for lack of subject-matter jurisdiction. Thompson, 748 F.Appx. at
11. Even so, a dismissal for lack of subject-matter jurisdiction should
ordinarily be without prejudice because such a dismissal does not operate as
an adjudication on the merits of the dispute. Id.ASSOCIATIONAL STANDING
In certain cases, an association may establish standing to assert a claim
on behalf of its members despite the lack of an injury to the association, itself.
The United States Supreme Court has identified three requirements for an
association to demonstrate standing in federal court:
(1) its members would otherwise have standing to sue in their own
right; (2) the interests it seeks to protect are germane to the
organization's purpose; and (3) neither the claim asserted nor the
relief requested requires the participation of the individual
members in the lawsuit.
9
Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
While not adopting the entire Hunt test, this Court has held “at least the first
requirement must apply.” Bradley v. Commonwealth ex rel. Cameron, 653
S.W.3d 870, 880 (Ky. 2022) (quoting Commonwealth ex rel. Brown v. Interactive
Media Ent. & Gaming Ass’n, Inc., 306 S.W.3d 32, 38 (Ky. 2010)). Thus, in
Kentucky, an association may have standing to assert a claim on behalf of its
members “only if its members could have sued in their own right.” Id.Importantly, vague allegations that a member has suffered injury are
insufficient to establish associational standing. Interactive Media, 306 S.W.3d
at 39. An association must specifically identify the member whose alleged
injury the association seeks to vindicate through judicial proceedings. Id.
Indeed, “[i]n cases where the harm is specific, the proof of standing must be
equally specific.” Id. “[S]tanding cannot be inferred argumentatively from
averments in the pleadings . . . but rather must affirmatively appear in the
record.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (internal
citations and quotations omitted).
The quantum of proof necessary to establish associational standing
depends on the stage of the proceeding:
At the pleading stage, less specificity is required. At that point, an
association may speak generally of the injuries to “some” of its
members, for the “presum[ption] [is] that general allegations
embrace those specific facts that are necessary to support the
claim.” By the summary judgment stage, however, more
particulars regarding the association’s membership must be
introduced or referenced. Finally, before a favorable judgment can
be attained, the association’s general allegations of injury must
clarify into “concrete” proof that “one or more of its members” has
10
been injured. “By refus[ing] to come forward with any such
showing,” any claim to associational standing, and the potential for
success on the merits is forfeited.
Interactive Media, 306 S.W.3d at 39-40 (internal citations omitted). In
Interactive Media, this Court rejected a theory of associational standing on
appeal from the grant of a petition for writ of prohibition where two gaming
associations failed to specifically identify any of their members who had
allegedly been injured by the seizure of internet domain names. Id. We held
the lack of standing required dismissal of the writ petition, but further noted
the associations’ lack of standing did not preclude the availability of future
relief “if a party that can properly establish standing comes forward.” Id. at 40.
To avoid confusion concerning the proper establishment of standing following
dismissal, this Court clarified that the issue of standing must first be heard
and decided at the trial court level in any subsequent proceedings. Interactive
Media Ent. & Gaming Ass’n, Inc. v. Wingate, 320 S.W.3d 692, 695 (Ky. 2010).
Given this Court’s prior reliance on federal decisions to explicate the
constitutional standing requirements under Kentucky law, we pause again to
note “the United States Court of Appeals for the Sixth Circuit questioned the
continued validity of the federal associational standing doctrine, noting that the
United States Supreme Court’s recent cases demonstrate that a nonparty
injury alone does not suffice to confer standing.” Bradley, 306 S.W.3d at 779
n.25 (citing Ass’n of Am. Physicians & Surgeons v. FDA, 13 F.4th 531, 537-43
(6th Cir. 2021)). However, as in Bradley, we need not further delineate the
boundaries of associational standing in the present appeal because the issue of
11
KC3’s constitutional standing may be adequately resolved using Kentucky’s
existing standing analysis.
ANALYSIS
With these standards in mind, we must determine whether KC3 has
standing to assert each of the claims set forth in its complaint. In Count 1 of
the complaint, KC3 alleged the City implemented an unlawful policy prohibiting
the possession, carrying, and transportation of firearms. In Count 2, KC3
alleged the City implemented an unlawful policy prohibiting the possession of
firearms on the premises of the Garfield Community Center, RV Park, and the
Fire Department Training Center. In Count 3, KC3 alleged the City
implemented an unlawful policy prohibiting the possession of firearms within
any RV or other vehicle on the premises of the RV Park. And, in Count 4, KC3
alleged the City implemented an unlawful policy prohibiting the possession,
carrying, and transportation of firearms on the grounds of the City’s parks.
None of the numbered counts in the complaint contain any allegations of
concrete injury to KC3 or its members beyond the alleged unlawfulness of the
City’s stated policies. Instead, in paragraph 12 of the complaint, which was
incorporated by reference into each of its four counts, KC3 alleged:
Plaintiff KC3 is a “person or organization whose membership is
adversely affected” by the ordinances, regulations and policies of
the Defendants. KC3’s membership lives in all areas of the
Commonwealth, and KC3 has members who reside both within
and within the immediate vicinity of the City of Pikeville, as well as
members who in the past, present and for the foreseeable
future, travel to and through the City of Pikeville for personal,
recreational and/or business purposes. Plaintiff KC3 and its
individual members desire the right to access the areas owned,
leased or otherwise controlled by Defendants, without fear of
12
having their right to possess, carry and transport firearms openly
or concealed denied by the Defendants. Many members of Plaintiff
KC3 are firearms owners who are licensed to carry concealed
firearms pursuant to Ky. Rev. Stat. § 237.110.
Further, in paragraph 19 of its complaint, which was also incorporated
by reference into each of its four counts, KC3 further alleged:
Members of KC3 have been denied entry into the . . . Expo Center
solely based on their lawful possession of firearms. Pursuant to
Ky. Rev. Stat. § 65.870(4), KC3 has standing to file suit to enforce
the provisions of Ky. Rev. Stat. § 65.870.
Additionally, Paragraph 100 of the complaint broadly states, “Plaintiff, and its
individual members, are adversely affected by the Constitutional and statutory
violations enumerated above and have standing to pursue this matter pursuant
to Ky. Rev. Stat. § 65.870.”
KC3 acknowledges no affidavits were attached to the complaint
concerning the alleged injury to the unidentified members. And, our review of
the record discloses no additional evidence concerning the identity of any
allegedly injured members, nor any particularized injury purportedly
sustained.
Speculative fears of prosecution or other future injuries are legally
insufficient to confer standing. Beshear v. Ridgeway Properties, LLC, 647
S.W.3d 170, 176 (Ky. 2022); Commonwealth v. Bredhold, 599 S.W.3d 409, 418
(Ky. 2020). Any as yet unconstrained desire of KC3’s unidentified members to
access the various sites without fear their rights to carry firearms will be
denied is simply too speculative to establish standing under our precedents.
Moreover, the unsupported allegation concerning an actual denial of entry to
13
unidentified members lacks sufficient specificity to establish associational
standing because an association must, at the very least, disclose the identity of
the members whose interests the association purports to represent. Interactive
Media, 306 S.W.3d at 38. Absent the foregoing, an association “cannot hope to
achieve associational standing.” Id.
Further, while the provisions of KRS 65.870(4)9 establish a private cause
of action, the existence of statutory standing does not equate to the
constitutional standing required to establish judicial subject-matter
jurisdiction. Sexton, 566 S.W.3d at 191. Though both are termed, “standing,”
constitutional standing and statutory standing are distinct concepts. Id.
Constitutional standing involves the question of whether a court possesses the
constitutional power to resolve a legal controversy. Id.
A party demonstrates constitutional standing upon a showing of: (1)
injury; (2) causation; and (3) redressability. Id. at 196. Statutory standing
involves the question of whether the legislature has afforded a particular
plaintiff the right to sue to redress his injury. Id. at 191. A party demonstrates
9 KRS 65.870(4) states in pertinent part:
A person or an organization whose membership is adversely affected by any
ordinance, administrative regulation, executive order, policy, procedure, rule, or
any other form of executive or legislative action promulgated or caused to be
enforced in violation of this section or the spirit thereof may file suit against any
person or organization specified in subsection (1) of this section in any court of
this state having jurisdiction over any defendant to the suit for declaratory and
injunctive relief. A court shall award the prevailing party in any such suit:
(a) Reasonable attorney's fees and costs in accordance with the laws of this
state; and
(b) Expert witness fees and expenses.
14
statutory standing by satisfying the requirements of the statute, which is a
matter of statutory interpretation and “is perhaps best understood as not even
standing at all.” Id. Indeed, the dismissal of a claim for lack of statutory
standing is properly viewed as a dismissal for failure to state a claim upon
which relief may be granted. Id. (quoting 13A Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure, Jurisdiction § 353 (3d ed.)).
Thus, the ability of KC3 to sue under KRS 65.870(4) does not relieve its
obligation to establish its own constitutional standing or the constitutional
standing of its members, as required to establish subject-matter jurisdiction
necessary to bring a claim before the courts.
CONCLUSION
Under the authority cited above, we conclude KC3 failed to establish
constitutional standing because it failed to produce sufficient proof of any
concrete and particularized injury suffered by any of its members. We do not
express any opinion on the merits of KC3’s claims. Because KC3 lacked
standing, the courts below lacked subject-matter jurisdiction to consider the
merits of the complaint and the issue of attorney fees. Therefore, the action
should have been dismissed in its entirety without prejudice. Moreover,
because a dismissal without prejudice does not operate as an adjudication on
the merits, there can be no prevailing party for the purpose of obtaining a
statutory award of attorney fees. See Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep’t of Health & Human Res., 532 U.S. 598, 603, 605 (2001); Walters v.
Moore, 121 S.W.3d 210, 215-16 (Ky. App. 2003). We reiterate the dismissal for
15
lack of standing does not preclude future judicial relief should a party become
subject to a non-speculative injury and otherwise comply with applicable rules
of procedure and statutes of limitation. Beshear v. Acree, 615 S.W.3d 780, 828
(Ky. 2020). Accordingly, we reverse the decision of the Court of Appeals and
remand this matter to the trial court with instructions to dismiss the action in
its entirety, without prejudice.
All sitting. VanMeter, C.J.; Bisig, Conley, Keller, and Lambert, JJ.,
concur. Thompson, J., dissents by separate opinion.
THOMPSON, J., DISSENTING BY SEPARATE OPINION:
Respectfully, I dissent from the well-written opinion of the majority. My
dissent is based upon our avoiding the issues presented by the parties after
extensive litigation which has cost them substantial attorney fees.
The issue of standing was not raised by either party and was not raised
in these proceedings until the Court asked questions relating to standing
during oral argument. No briefing on this subject occurred and I believe that
both parties expected a resolution of this matter on the merits.
The majority opinion opines that organizational standing was not
established, quoting from Commonwealth ex. rel. Brown v. Interactive Media
Entertainment & Gaming Ass’n, Inc., 306 S.W.3d 32, 39-40 (Ky. 2010), which
states that less specificity is required at the pleading stage, when allegations of
injuries to some of its members is sufficient, as opposed to at the summary
judgment or favorable judgment stage. However, the majority ignores that no
further pleading requirement was ever established here where the motion for
16
summary judgment was not premised on lack of standing and we are not yet at
a judgment on the merits stage.
In Interactive Media, various groups of domain names and gaming
associations sought to intervene in the case and dismiss the seizure of their
domain names. Attorneys sought to appear on behalf of domain names, thus
“purport[ing] to represent property that is protecting itself” and on behalf of
gaming associations which purported to represent either the domain names
themselves or its members that had registered those domain names but would
not disclose the names of those who registered the domain names. Id. at 36-
38. The circuit court “ultimately denied all motions to intervene or dismiss and
scheduled a forfeiture hearing where the actual registrants and owners of the
seized domains could prove their innocence” and in its order specifically noted
“that only the domain name owners, operators, and registrants had a legal
interest in the domain names and only they or their representatives could
defend against forfeiture.” Id. at 35 footnote omitted.
As our Court specifically noted in its review of that case, “the
Commonwealth has apparently challenged the standing of these individual
domain names at every stage of the proceedings. It has insisted that the
property seized cannot defend itself, but can only be defended by those having
an interest in the property—namely owners and registrants of domain names.”
Id. at 36. Additionally, the Court explained that “the associations had every
opportunity to cure their standing defects by identifying their seized members;
in fact, they were ordered to do so by the Franklin Circuit Court.” Id. at 39.
17
Therefore, the issue of standing was front and center, and that case was on
very different footing than the one before us, where no one apparently asked for
specific names of KC3’s members who had been injured.
In Interactive Media, the Court acknowledged that in some associational
standing cases where standing was determined to be sufficient, such as City of
Ashland v. Ashland F.O.P. No. 3 Inc., 888 S.W.2d 667 (Ky. 1994), a list of the
organization’s membership was not even necessarily required to be disclosed.
Interactive Media, 306 S.W.3d at 38-39. Yet, the majority opinion has not even
commented on whether KC3 was ever asked to disclose its membership list or
specifically identify which of its members were injured and the particular facts
involving such injuries. Instead, as in Ashland F.O.P., it appears that both
parties were satisfied that there was actual standing because an actual injury
had taken place (if indeed banning persons from the Expo Center and
prohibiting them from bringing guns into various places, was unconstitutional
and constituted an injury). In fact, it could be argued that their level of
confidence that there was standing was so high, they did not even feel the need
to address such an issue.
Interactive Media’s general statement that more is required at the
summary judgment stage, when discussing a case in which standing is central
to its resolution before the trial court and was the specific issue being resolved,
does not mean that at the summary judgment stage when standing is not at
issue, that parties must put forth more affirmative evidence of standing than
was required at the pleading stage. I believe Interactive Media supports my
18
contention that the allegations that KC3 made regarding its members being
denied entry into the Expo Center solely based on their lawful possession of
firearms states a sufficient injury at this stage in considering whether
summary judgment was validly granted to the City on other bases.
It is my belief that the number one job of the Supreme Court of Kentucky
is to adjudicate disputes between our citizens. This dispute is ripe for
adjudication. It requires a complex, well briefed legal analysis of the interplay
in the conflicts between local law, state law and federal law on an important
subject matter. I disagree with the majority’s decision to avoid wading into this
controversy by at the last minute choosing to dismiss for lack of subject matter
jurisdiction. At minimum, I urge the Court to first order supplemental briefing
by the parties on this issue before we resolve it in this manner. Accordingly, I
dissent.
COUNSEL FOR APPELLANTS:
Russell H. Davis, Jr.
Baird and Baird, PSC
COUNSEL FOR APPELLEE:
Steven D. Jaeger
The Jaeger Firm, PLLC
19