Office of the Attorney General
AGO OAG 18-09
No. OAG 18-09
Kentucky Attorney General Opinion
Commonwealth of Kentucky Office of the Attorney General
July 2, 2018
Subject:
The process by which the rules and policies for public access
to the State Capitol building may be implemented or altered.
Requested
by: Representative Attica Scott, Kentucky House District
41 Representative George A. Brown, Jr., Kentucky House
District 77 [1]
Written
by: Laura C. Tipton
Syllabus:
It is a violation of Kentucky law to restrict access to the
State Capitol building based on a rale or policy that has not
been promulgated through the administrative regulation
process.
Statutes
construed: KRS 13A.100(1) and (2), KRS 13A.010(2)(a),
KRS 13A.270, KRS 13A.280, KRS 13A.220(4)(e) and (f), KRS
13A.290, KRS 13A.010(1), KRS 56.463(4)(a) and (8), KRS
16.065(1), KRS 16.080(1), KRS 13A.110, KRS 13A.190
OPINION OF THE ATTORNEY GENERAL
State
Representatives Attica Scott and George A. Brown, Jr., joined
by 27 of their colleagues in the Kentucky General Assembly,
have requested an opinion of this office regarding the
process by which rules and policies for public access to the
State Capitol building may be implemented or altered. The
opinion request relates to events involving the Kentucky Poor
People's Campaign on June 4, 2018. For the reasons
detailed in this opinion, we conclude that the Kentucky
Finance and Administration Cabinet and the Kentucky State
Police violated KRS Chapter 13A by enforcing a policy against
the Poor People's Campaign that they did not promulgate
in an administrative regulation.
Before
rendering this opinion, the office requested input, including
all pertinent documents or records, from all relevant
parties, as follows: the Justice and Public Safety
Cabinet's Department of Kentucky State Police
("KSP"); the Finance and Administration Cabinet
("Finance Cabinet"); the Historic Properties
Advisory Commission; and the Poor People's Campaign. We
received responses from the KSP and the Poor People's
Campaign. A response from the Finance Cabinet, on behalf of
both itself and the Historic Properties Advisory Commission,
advised that the Finance parties would provide no legal
analysis regarding issues raised by the opinion request based
on its perceived threat of litigation by the Poor
People's Campaign. [2]
A
review of the KSP and Poor People's Campaign responses
reveals certain undisputed facts. Among these are the
following: The Poor People's Campaign applied for and
received approval from the Finance Cabinet to use the Capitol
grounds for rallies on four dates in May and June 2018, May
21, May 29, June 4, and June 11. The Campaign, which
described its purpose as "advocating with and for people
who are most affected by systemic racism, systemic poverty,
the war economy, and ecological devastation,"
anticipated that 125-300 people would attend each rally
lasting from 1:30, p.m. to 3:00 p.m. The Campaign did not
seek a permit to rally inside the Capitol...
