Lead Opinion
Opinion of the Court by
Appellant, the Kentucky Board of Nursing (the Board), appeals the Court of Appeals’ ruling that the Board acted unreasonably in interpreting one of its regulations and аpplying it to Appellee, the Sullivan University System, Inc. (Spencerian). Because the regulation at issue has been amended, and the new version is no longer negatively imрacting Appellee, we must decide whether this case should be dismissed for mootness.
I. BACKGROUND
Since 2001, Spencerian has offered an Applied Science in Nursing (ADN) Program at its Lоuisville campus. Pursuant to KRS 314.131, the Board promulgates regulations establishing evaluative standards for pre-licensure registered nurse programs, such as Spencerian’s ADN program. These evaluative standards are set forth in 201 KAR 20:260 through 20:360.
If a nursing program fails to satisfy one or more of the evaluative standards established by the Board, that program will be placed on conditional approval status. 201 KAR 20:360 § 1(4). In the event that a conditionally approved program fails to sufficiently correct its deficiencies, it will be аdjusted to probationary approval status. 201 KAR 20:360 § l(4)(e). A nursing program on probationary status will be prohibited from admitting new students
From 2001 to 2011, Spencerian’s ADN program continually failed to meet the Board’s evaluative standаrds, but the Board continued to let the program operate under conditional approval status. In early 2010, the Board adjusted the program’s status from conditional to probationary. The Board’s decision to downgrade the ADN program’s status was based, at least in part, on the program’s continued failure to achieve an eighty-five percent pass rate for its graduates taking the nursing licensure test for the first time in 2009.
Prior to its amendment in 2009, 201 KAR 20:360 § 1(4) required the “graduates of a program of nursing” to achieve a pass rate of at least eighty-five percent on the national licensure examination. In 2009, the Board’s regulations were amended to incorporate specifiс language making the eighty-five percent pass-rate requirement applicable only to first-time test takers. 201 KAR 20:360 § 2(4). The purpose of the amendment was to make it clеar that test takers who had previously taken the exam and failed could not be used to boost a nursing program’s reported pass rate.
Following the ADN program’s plаcement on probationary status, Spencerian filed suit in Jefferson Circuit Court alleging, among other things, that the Board’s decision was improper because it retroactively applied the newly-enacted 2009 regulatory amendments to Spencerian. In response to Spencerian’s argument, the Board asserted that it had long intеrpreted its regulation as applying to first-time test takers, and that the 2009 amendment merely clarified that long-standing interpretation. Therefore, according to the Boаrd, it had not retroactively applied the new regulations, but rather it simply applied the old regulations in the same manner it always had.
The circuit court rejected Spencerian’s argument that the Board retroactively applied the 2009 amendments to the test results and granted summary judgment to the Board, holding that Spencerian had failеd to meet the Board’s pass rate for seven consecutive years. The Court of Appeals reversed, finding that the Board erroneously retroactively applied the amended administrative regulations to conduct that pre-dated the amendments.
Notably, during the pendency of this appeal, Spencerian instituted numerous changes to its ADN program, which improved its compliance with regulatory standards. For the calendar year 2012, the program achieved a ninety-eight percent pаss rate for its graduates taking the nursing licensure exam for the first time. As a result of the increased pass rate and other improvements made by Spencerian, the Board рlaced the ADN program on full approval status on February 15, 2013. At this time, the program continues to remain on full approval status.
II. ANALYSIS
Appellate courts lack subject matter jurisdiction to decide cases that have become moot. See Veith v. City of Louisville,
A. Mootness
In a recent opinion on the subject of mootness, this Court held that “an appellate court is required to dismiss an appeal when a change in circumstance renders that court unable to grant meaningful relief to either party.” Med. Vision Grp., P.S.C. v. Philpot,
As noted above, Spencerian’s ADN program has been operating under full approval status since February 2013. Thus, this case is moot because Spencerian has already received the relief it sought — removal from probationary status. In other words, the ADN program’s removаl from probationary status moots this action as this Court is now unable to “grant meaningful relief to either party.” Philpot,
Furthermore, the Board’s grant of full approval status to Spencerian has left this Court without jurisdiction because there is no longer “an actual case or controversy.” Hughes,
B. Vacation of the Lower Courts
In addition to dismissal of the Board’s appeal, we also find it appropriate to vaсate the rulings of the lower courts in this case. The decisions of the lower courts are not reviewable by this Court due to mootness, and we find it prudent to prevent them from spawning any undesired legal consequences.
Based on the foregoing, the Board’s appeal is dismissed as moot.
Notes
. At the outset, we acknowledge that our decision to vacate the rulings of the lower courts is unusual. Typically, upon a finding that a civil case has become moot on its way to this Court or while pending our decision on the merits, our aрproach has been to simply dismiss the case with no consideration of the judgment pronounced by the circuit court below. See, e.g., Ky. Dep't of Corrections v. McCullough,
However, although it may not be evidencеd by our previous mootness cases, this Court has the power, under statutory authority, to reverse, modify, or vacate any judgment, order, or decree of a lower cоurt. KRS 21 A.050. In this particular case, where the conflicting judgments of the courts below have the potential to set unnecessary legal precedents, we find it approрriate to exercise our power to vacate those rulings.
. Thus, to the extent consistent with this opinion, we grant Spencerian’s "motion to dismiss appeal.”
Dissenting Opinion
dissenting:
I dissent from the extraordinary relief of vacating the lower court decisions. I agree that the case is now moot, which allows us to avoid the merits of the case. But that requires оnly that we dismiss the appeal. Mootness does not require, or even allow, an appellate court to dismiss past orders or judgments. Because we conclude that the case is now moot, the decisions of the lower courts are not properly before us.