Warren P. Rogers v. Lexington-Fayette Urban County Government ( 2005 )

,$uyremt muourf of
2005-SC-0748-1
WARREN P. ROGERS ; JOSEPH K. JARBOE ; KATHY
GORNIK AND KENTUCKY-AMERICAN WATER
COMPANY
ON REVIEW FROM COURT OF APPEALS
V. NO. 2005-CA-1798-MR
FAYETTE CIRCUIT COURT NO. 05-CI-02993
LEXINGTON-FAYETTE URBAN COUNTY APPELLEES
GOVERNMENT ; TERESA A. ISAAC, IN HER
CAPACITY AS MAYOR; BILL CEGELKA, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL ; GEORGE A.
BROWN, JR., IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL; DICK DECAMP, IN THE CAPACITY AS A
MEMBER OF THE LEXINGTON FAYETTE URBAN
COUNTY COUNCIL; CHUCK ELLINGER II, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL; BILL FARMER,
JR., IN THE CAPACITY AS A MEMBER OF THE
LEXINGTON FAYETTE URBAN COUNTY COUNCIL ;
LINDA GORTON, IN THE CAPACITY AS A MEMBER
OF THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL; GEORGE MYERS, IN THE CAPACITY AS A
MEMBER OF THE LEXINGTON FAYETTE URBAN
COUNTY COUNCIL ; JAY MCCHORD, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL ; KEVIN
STINNETT, IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; RICHARD MOLONEY, IN THE CAPACITY
AS A MEMBER OF THE LEXINGTON FAYETTE
URBAN COUNTY COUNCIL ; ED LANE, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL ; MIKE
SCANLON, IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; SANDY SHAFER, IN THE CAPACITY AS A
MEMBER OF THE LEXINGTON FAYETTE URBAN
COUNTY COUNCIL ; DAVID B . STEVENS, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL; JACQUES
WIGGINTON, IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL; DONALD W. BLEVINS, FAYETTE
COUNTY CLERK ; BLUEGRASS FLOW, INC . ; JOE B.
HALL ; JENNIFER MOSSOTTI; HARRY N . SYKES ;
VANMETER PETIT; AND ROBERT R. JEFFERSON
OPINION AND ORDER
VACATING AND REMANDING
The appellants seek review from a decision of a panel of the Court of Appeals
which denied their motion for relief under CR 65 .08 . The Court of Appeals also denied
their motion for oral argument; denied their motion to strike exhibits; and denied their
motion for recommendation of transfer.
The appellants, pursuant to CR 65.09 and 76 .22, move this Court to grant
expedited interlocutory relief, pending appeal, to enjoin the Lexington-Fayette Urban
County Government and Fayette County Clerk Don Blevins from expending any funds
or otherwise taking any steps in furtherance of conducting an election on November 8,
2005 on the ballot initiative at issue in this case .
The facts are not in dispute and are well known to the parties. The circuit court
determined that the initiative process was legal in Fayette County and permitted the
election to go forward, ruling that the next regular election in Fayette County was in
November of 2005. An appeal was taken to the Court of Appeals and a panel of that
court denied injunctive relief and found that the appellants failed to show cause why
they would suffer irreparable harm. We are now presented with a motion for
interlocutory relief.
The central question is whether an election can be held on November 8, 2005.
We answer "No" because it is not a regular election.
CR 65 .09 allows interlocutory relief in the Supreme Court by any party adversely
affected by an order of the Court of Appeals. The rule states in part as follows :
The decision whether to review such order shall be
discretionary with the Supreme Court. Such a motion will be
entertained only for extraordinary cause shown in the motion .
In this case, the ordinance which is intended to be presented to the voting public,
will require the urban county council to acquire by purchase, or if necessary, by eminent
domain, the assets of the Kentucky-American Water Company. Taxpayer funds must
be provided for any election in November and may have been expended to some
degree . A budget of $250,000 has been set by the urban county government. There is
no reasonable expectation that such funds could be recovered if an election is
conducted, but later held to be invalid .
Financial concerns aside, it must be recognized that voting is an extremely
serious and important matter. It is fundamental in our form of government . The
citizenry must have faith that their vote will have meaning and will be valid. Clearly, the
appellants have shown extraordinary cause for granting relief.
In considering this case, the requirements for the issuance of an injunction must
be carefully considered . They are explained in the seminal cases of Oscar Ewing, Inc. v.
Melton, d/b/a Melton's Grocery, 309 S.W.2d 760 (Ky. 1958) and Maupin v. Stansbury,
575 S .W.2d 695 (Ky .App . 1978) . They are as follows : (1) Has the plaintiff shown an
irreparable injury ; (2) Are the equities in the plaintiff's favor, considering the public
interest, harm to the defendant, and whether the injunction will merely preserve the
status quo; and (3) Does the complaint present a substantial question?
In Commonwealth, Revenue Cabinet v. Picklesimer , 879 S .W .2d 482 (Ky. 1994),
this Court held that a movant for interlocutory relief must demonstrate that the circuit
court ruling was "clearly erroneous ." This standard is set out in CR 52 .01 which
provides that findings of fact shall not be set aside unless they are clearly erroneous,
with due regard given to the opportunity of the trial court to judge the credibility of the
witnesses. On appellate review, the appellate court may determine that findings are
clearly erroneous if they are without adequate evidentiary support or occasioned by an
erroneous application of the law. Cf. Oakwood Mobile Homes, Inc. v. Sprowls , 82
S .W .3d 193 (Ky. 2002).
KRS 89.610, which was repealed on July 15, 1980, set forth the procedure for
initiating a public question, initiative and referendum . It stated in relevant part as follows:
[T]he board shall then either pass the proposed ordinance
without alteration within ten days after the petition is filed, or
submit the question of passage to the voters of the city at the
next regular election .
KRS 89.610 (repealed July 15, 1980) (emphasis added) .
The aforementioned statute was in effect when the Lexington-Fayette Urban
County Charter was adopted . KRS 67A .060 indicates that a statute in effect at the time
urban county government is formed remains so unless expressly repealed for that
government . Accordingly, the contention is that KRS 89.610 was never expressly
repealed as to the Lexington-Fayette Urban County Government.
It is unnecessary for this Court to decide whether the above contention is valid .
However, even if we accept it as so, there is still a clear misapplication of the law. As
previously noted, former KRS 89.610 required submission of the issue to the voters at
the next regular election . (emphasis added) KRS 446 .010(28) defines a regular
election as one that occurs in even-numbered years at which members of Congress are
elected and the election in odd-numbered years at which state officers are elected . The
effect of the statute and its schedule of transitional provisions eliminated regular
elections in 1997, and every four years thereafter . There are no state officers to be
elected in 2005, consequently, there is no "regular election" this year . Apparently the
parties here agree that.there is a regular election scheduled for November 7, 2006 .
We are satisfied that the appellants have complied with the requirements for the
issuance of an injunction . See Oscar Ewinq, Inc. , supra, and Maupin, supra . The
appellants have shown an irreparable injury. The expenditures necessary to hold this
election are public not private funds . They cannot be recouped by money damages on
appeal . Thus, the injury is irreparable .
The equities certainly favor the appellants. In view of the fact that the elimination
of elections from the 2005 calendar year has been widely publicized, we must disagree
that there is any expectation on the part of the voting public to go to the polls in
November of this year. The ultimate cost of any purchase or condemnation of the water
company is highly speculative and may be determined by market factors . We perceive
no detriment to the public interest by delaying the election to an appropriate time. The
situation here is not the maintenance of the status quo, but a prevention of conduct that
is in clear violation of statutory law.
The complaint presents a substantial question . Clearly, the appellants are
entitled to protection of the law and to rely on the existing statutes in any consideration
of this nature. The cost and importance of voting simply cannot be overlooked .
It is the decision of this Court that the Urban County Government and the Fayette
County Clerk should be enjoined from expending any funds or otherwise taking any
steps in furtherance of conducting an election on the ballot question on November 8,
2005 . The order of the Court of Appeals denying the motion for relief under CR 65 .08 is
hereby vacated and this matter is remanded to the Fayette Circuit Court for issuance of
an injunction upon the posting of a nominal bond .
Lambert, C.J., and Cooper, Scott and Wintersheimer, JJ ., concur.
Johnstone, J., dissents by separate opinion and is joined by Graves, J ., who also
dissents by separate opinion and is joined by Johnstone, J .
Roach, J ., not sitting .
ENTERED : October 13, 2005.
ATTORNEYS FOR APPELLANTS:
Robert E . Wier
Ransdell & Wier PLLC
176 Pasadena Dr. - Bldg . 1
Lexington, KY 40503
Hanly Acton Ingram
Lindsey W . Ingram, Jr.
William M. Lear, Jr.
Steven B . Loy
Stoll, Keenon & Park
300 West Vine Street, Suite 2100
Lexington, KY 40507-1801
ATTORNEYS FOR APPELLEES :
Mary Ann Delaney
6050 Old Richmond Road
Lexington, KY 40515
David L. Holmes
Leslye M . Bowman
David Jeffrey Barberie
Lexington-Fayette Urban County Gov't
200 East Main Street
Lexington, KY 40507
William R. Garmer
Garmer & O'Brien, PLLC
141 N . Broadway
Lexington, KY 40507
Jane E . Graham
Henry, Watz, Gardner, Sellars & Gardner
401 W. Main St., Ste. 314
Lexington, KY 40507
Edwin Foster Ockerman, Jr.
Martin, Ockerman & Brabant
200 N. Upper St.
Lexington, KY 40507
Julius Rather
Denny, Morgan, Rather & Gilbert
154 Market St.
Lexington, KY 40507
TO BE PUBLISHED
,Supreme C~oixrf of ~ertf~txh~r
2005-SC-0748-1
WARREN P. ROGERS ; JOSEPH K. JARBOE; APPELLANTS
KATHY GORNIK; AND KENTUCKY-AMERICAN
WATER COMPANY
ON APPEAL FROM COURT OF APPEALS
V. 2005-CA-1798-MR
FAYETTE CIRCUIT COURT NO . 2005-CI-2993
LEXINGTON-FAYETTE URBAN COUNTY APPELLEES
GOVERNMENT; TERESA A. ISAAC, IN HER
CAPACITY AS MAYOR ; BILL CEGELKA, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL; GEORGE A.
BROWN, JR., IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; DICK DECAMP, IN THE CAPACITY AS A
MEMBER OF THE LEXINGTON FAYETTE URBAN
COUNTY COUNCIL; CHUCK ELLINGER II, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL ; BILL FARMER,
JR., IN THE CAPACITY AS A MEMBER OF THE
LEXINGTON FAYETTE URBAN COUNTY COUNCIL ;
LINDA GORTON, IN THE CAPACITY AS A MEMBER
OF THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; GEORGE MYERS, IN THE CAPACITY AS
A MEMBER OF THE LEXINGTON FAYETTE URBAN
COUNTY COUNCIL ; JAY MCCHORD, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL; KEVIN
STINNETT, IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL; RICHARD MOLONEY, IN THE CAPACITY
AS A MEMBER OF THE LEXINGTON FAYETTE
URBAN COUNTY COUNCIL; ED LANE, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL; MIKE
SCANLON, IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL; SANDY SHAFER, IN THE CAPACITY
AS A MEMBER OF THE LEXINGTON FAYETTE
URBAN COUNTY COUNCIL ; DAVID B. STEVENS,
IN THE CAPACITY AS A MEMBER OF THE
LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; JACQUES WIGGINTON, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL ;
DONALD W. BLEVINS, FAYETTE COUNTY
CLERK; BLUEGRASS FLOW, INC. ; JOE B .
HALL ; JENNIFER MOSSOTTI ; HARRY N. SYKES ;
VANMETER PETIT; AND ROBERT R. JEFFERSON
DISSENTING OPINION BY JUSTICE JOHNSTONE
Respectfully, I dissent from the Majority's Opinion and Order granting CR 65 .09
relief to Appellants. In my opinion, Appellants have failed to demonstrate "extraordinary
cause" justifying such relief. In the seminal case, Maupin v. Stansbury, 575 S.W.2d
695, 699 (Ky. App . 1978), the Court of Appeals held:
[A]pplications for temporary injunctive relief should be viewed
on three levels. First, the trial court should determine whether
plaintiff has complied with CR 65 .04 by showing irreparable
injury . . This is a mandatory prerequisite to the issuance of any
injunction . Secondly, the trial court should weigh the various
equities involved . Although not an exclusive list, the court
should consider such things as possible detriment to the public
interest, harm to the defendant, and whether the injunction will
merely preserve the status quo. Finally, the complaint should
be evaluated to see whether a substantial question has been
presented . If the party requesting relief has shown a
probability of irreparable injury, presented a substantial
question as to the merits, and the equities are in favor of
issuance, the temporary injunction should be awarded .
However, the actual overall merits of the case are not to be
addressed in CR 65.04 motions . Unless a trial court has
abused its discretion in applying the above standard, we will
not set aside its decision on a CR 65 .07 review .
The deferential standard under which appellate courts review circuit court
determinations as to injunctive relief only heightens the importance of sound decision
-2-
making at the circuit court level. Under CR 65.04, the Court of Appeals may reverse
such a determination only where it appears that the circuit court has made clearly
erroneous findings unsupported by substantial evidence . See National Collegiate
Athletic Association v. Lasege , 53 S.W.3d 77 (Ky. 2001) . Interlocutory relief in this
Court is appropriate only where we find that it is warranted by "extraordinary cause ."
I would agree that Appellants have raised substantial questions regarding the
timing of the election and the validity of the initiative process . Nonetheless, I cannot
conclude that Appellants have shown irreparable injury if the election is held on
November 8, 2005.
Appellants assert, and the Majority apparently agrees, that the expenditure of
public funds to proceed with the election constitutes an irreparable injury that outweighs
the voters' right to be heard on the issue this November . I find this proposition to be
fatally flawed . A party asserting a loss of monetary funds as evidence of irreparable
harm is generally the party expending those funds . Here, although there certainly is a
monetary cost involved in preparing for the election, the funds necessarily come from
the Lexington-Fayette Urban County Government's budget, not from Appellants .
Notably, Lexington-Fayette Urban County Government does not object to the
expenditure of these monies; indeed, the Government supports the County Clerk's use
of the designated funds for election preparation .
Moreover, the Majority fails to cite any authority, and we find none, for
distinguishing the expenditure of public versus private monies. Our law is clear that the
financial distress of a party does not warrant extraordinary relief. In Ison v. Bradley, 333
S .W.2d 784, 786 (Ky. 1960), our predecessor court held:
By this proceeding, petitioners are attempting a premature
appeal and seeking a precipitate decision of this Court on an
interlocutory order. It takes a minimum of imagination to
envision the utter confusion and chaos in the trial of cases if
this Court should entertain original proceedings in cases of
this character. The basis urged for doing so is the financial
distress of litigants . This is not an uncommon status, however
unwanted it may be, and is not confined to litigants. Thus, the
delay incident to litigation and appeal by litigants who may be
financially distressed cannot be considered as unjust, does not
constitute irreparable injury, and is not a miscarriage of justice .
In fact, in Maupin v. Stansbury, supra , this Court found that an injunction
prohibiting the Louisville Board of Aldermen from expending public finds in furtherance
of an investigation of the mayor was improper, because there was no evidence as to
how the expenditures would irreparably harm the party who obtained the injunction . "At
the most, the complaint create[d] only a speculation of possible harm to the taxpayers
as a group. There being no clear showing of irreparable injury . . . the temporary
injunction [was] improper." Id. at 700. Here, neither Appellants nor the Majority can
point to any tangible injury that Appellants will suffer as a result of this use of public
monies . Certainly, if Appellants won at the polls, they could allege no injury despite the
election having taken place against their wishes . Nonetheless, I believe that the
expenditure of a miniscule percentage of the Lexington-Fayette Urban County
Government's budget, in and of itself, falls far short of demonstrating irreparable injury.
Furthermore, Appellants herein are not "seeking to maintain the status quo," but
are requesting mandatory relief which would require [Appellees] to change [their] course
of conduct." Oscar Ewinq, Inc. v. Melton , 309 S .W.2d 760, 761 (Ky. 1958) . To maintain
the status quo, the County Clerk must be permitted to continue with the current course
of conduct in preparing for the election. Clearly, a balancing of the equities of the
parties herein favors allowing the election process to go forward as determined by the
Fayette Circuit Court and Court of Appeals.
The most troubling aspect of the Majority's opinion is that it undertakes to decide
the merits of the appeals below, notwithstanding the fact that this Court has previously
denied transfer of those same appeals . Without question, deciding the merits of the
parties' conflicting claims is inappropriate in reviewing a request for a temporary
injunction. Maupin v. Stansbury, supra .
To permit the expenditure of public monies to form the basis of a taxpayer's claim
for extraordinary relief vastly broadens this Court's prior notion of irreparable harm .
Given the saturation of public monies in nearly every aspect of today's society, the
extent of interlocutory litigation involving taxpayer monies will be virtually unlimited.
Both the Fayette Circuit Court and the Court of Appeals denied Appellants' motion for
extraordinary relief. As did the Court of Appeals, I would give due deference to the
findings of the circuit court and also deny the requested relief.
Graves, J ., joins in this dissent.
TO BE PUBLISHED
,iupuomt (~Vurf of R:eufurhv
2005-SC-748-1
WARREN P . ROGERS ; JOSEPH K. JARBOE ; KATHY APPELLANTS
GORNIK AND KENTUCKY-AMERICAN WATER
COMPANY
ON APPEAL FROM COURT OF APPEALS
V. NO . 2005-CA-1798-MR
FAYETTE CIRCUIT COURT NO . 05-CI-02993
LEXINGTON-FAYETTE URBAN COUNTY APPELLEES
GOVERNMENT; TERESA A. ISAAC, IN HER
CAPACITY AS MAYOR; BILL CEGELKA, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL ; GEORGE A.
BROWN, JR ., IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; DICK DECAMP, IN THE CAPACITY AS A
MEMBER OF THE LEXINGTON FAYETTE URBAN
COUNTY COUNCIL ; CHUCK ELLINGER II, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL; BILL FARMER,
JR., IN THE CAPACITY AS A MEMBER OF THE
LEXINGTON FAYETTE URBAN COUNTY COUNCIL;
LINDA GORTON, IN THE CAPACITY AS A MEMBER
OF THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; GEORGE MYERS, IN THE CAPACITY AS A
MEMBER OF THE LEXINGTON FAYETTE URBAN
COUNTY COUNCIL ; JAY MCCHORD, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL ; KEVIN
STINNETT, IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; RICHARD MOLONEY, IN THE CAPACITY
AS A MEMBER OF THE LEXINGTON FAYETTE
URBAN COUNTY COUNCIL; ED LANE, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL; MIKE
SCANLON, IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; SANDY SHAFER, IN THE CAPACITY AS A
MEMBER OF THE LEXINGTON FAYETTE URBAN
COUNTY COUNCIL ; DAVID B. STEVENS, IN THE
CAPACITY AS A MEMBER OF THE LEXINGTON
FAYETTE URBAN COUNTY COUNCIL ; JACQUES
WIGGINTON, IN THE CAPACITY AS A MEMBER OF
THE LEXINGTON FAYETTE URBAN COUNTY
COUNCIL ; DONALD W. BLEVINS, FAYETTE
COUNTY CLERK; BLUEGRASS FLOW, INC . ; JOE B .
HALL; JENNIFER MOSSOTTI ; HARRY N. SYKES ;
VANMETER PETIT; AND ROBERT R. JEFFERSON
DISSENTING OPINION BY JUSTICE GRAVES
1 fully agree with and join Justice Johnstone's well-reasoned dissent . I write to
further express my disappointment in the majority's opinion to this extent: not only does
the majority abuse its discretion for the reasons set forth in Justice Johnstone's dissent,
but also the majority takes the even more outrageous step of disrupting the status quo
in a context where the electorate has taken great pains to exercise its right to peacefully
participate in the democratic processes of this Commonwealth . Our constitution deems
this right of the people to be sacred and inherent . Ky. Const. §§1-4.
The irreparable harm in this case is not being suffered by Appellants, but rather it
is being inflicted on the electorate . This is especially true because Appellants asserted
at oral argument that only a small percentage of the electorate favored acquisition of the
water company. The harm beyond repair is the increased public apathy being created
by the contorted litigation we see today that delays, or perhaps denies, the electorate's
vote in a timely manner on an important public question .
Johnstone, J ., joins in this dissent .