Rogers v. Lexington-Fayette Urban County Government , 2005 Ky. LEXIS 371 ( 2005 )

OPINION AND ORDER

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 Ken-tueky-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 Man-pin 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 plaintiffs 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-Fay-ette 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 Ewing, 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 Fay-ette 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.

/s/ Joseph E. Lambert CHIEF JUSTICE