City of Mayfield v. Kennemore, 2016-CA-000841-MR

• Decision Date: 05 August 2016
• Docket Number: NO. 2016-CA-000841-MR,2016-CA-000841-MR
• Parties: CITY OF MAYFIELD, KENTUCKY APPELLANT v. BARRY M. KENNEMORE, GRAVES COUNTY CLERK; GRAVES COUNTY BOARD OF EDUCATION; AND KENTUCKY LEAGUE OF CITIES APPELLEES
• Court: Kentucky Court of Appeals

CITY OF MAYFIELD, KENTUCKY APPELLANT v. BARRY M. KENNEMORE, GRAVES COUNTY CLERK; GRAVES COUNTY BOARD OF EDUCATION; ANDKENTUCKY LEAGUE OF CITIES APPELLEES

NO. 2016-CA-000841-MR

Commonwealth of Kentucky Court of Appeals

AUGUST 5, 2016

NOT TO BE PUBLISHED

GRAVES CIRCUIT COURT

HONORABLE TIMOTHY C. STARK

ACTION NO. 16-CI-00112

OPINON AND ORDER

AFFIRMING IN PART AND REVERSING IN PART

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BEFORE: CLAYTON, MAZE, AND TAYLOR, JUDGES.

CLAYTON, JUDGE: This is an appeal of the Graves Circuit Court's order declaring that the Graves County Board of Education's petition for a referendum on the City of Mayfield's ordinance annexing four parcels of property owned by the Board had properly complied with statutory requirements. The order also granted the Board's motion to intervene in the suit brought by the City against the Graves County Clerk, and denied the City's request for an injunction to prevent the Clerk from certifying the petition.

In late 2015, the city of Mayfield (the City) passed two ordinances allowing it to annex the properties owned by the Graves County Board of Education (the Board). The ordinances were published and became effective on January 19, 2016, and were again published on March 7, 2016. In a letter sent to the Mayor of Mayfield on January 5, 2016, an attorney representing the Board objected to the annexation. The Board considered the letter to be its notice to the City that it was petitioning for a referendum on the annexation, to be certified by the Graves County Clerk (the Clerk) and brought for a vote in the November general election. In response, the City filed a declaratory judgment action against the Clerk and sought an injunction to prevent the Clerk from certifying the petition. The Board, to protect its interests, filed a motion to intervene.

The City argued that the Clerk could not certify the petition because it did not meet the requirements of Kentucky Revised Statute (KRS) 65.012 which requires "[a]ll referendum petitions permitted by general law in KRS Chapter[] . . . 81A . . ." to include the

(a) Printed name of the petitioner;

(b) Signature of the petitioner;

(c) Year of birth of the petitioner;

(d) Residential address of the petitioner; and

(e) Date that the petitioner signed the petition.

The statute also requires that, to be eligible to sign a referendum petition, a person must be a registered voter who lives in the area to be affected by the referendum. Id. The Board countered that the petition was instead governed by KRS 81A.420(2). That statute allows property owners, as well as residents of the affected area, to petition for a referendum:

If following the publication of the annexation ordinance pursuant to subsection (1) of this section and within sixty (60) days thereof, or if in any annexation proceeding where the annexing city has not adopted a final annexation ordinance, within sixty (60) days of February 12, 1988, fifty percent (50%) of the resident voters or owners of real property within the limits of the territory proposed to be annexed petition the mayor in opposition to the proposal, an election shall be held at the next regular election if the petition is presented to the county clerk and certified by the county clerk as sufficient not later than the second Tuesday in August preceding the regular election:

The circuit court heard arguments from the City and the Board on May 16, 2016, and on May 20, 2016, it entered its order granting intervention, denying injunctive relief, and declaring that the petition had been properly submitted. It ordered the Clerk to certify the petition and place the question of annexation on the ballot in the general election. The circuit court reasoned that the Board could not meet the requirements of KRS 65.012 since it has no date of birth, no address, and is not a registered voter in the area to be annexed. However, it did find that the Board properly filed a petition under KRS 81A.420(2). Acknowledging theconflict between the statutes regarding the requirements for a valid petition, the court found KRS 81A.420 more specifically addressed a petition for a referendum on an annexation.

The City appealed and asked this Court to expedite the appeal, which we have done. We now address the merits.

Standard of Review

Kentucky Rules of Civil Procedure (CR) 52.01 provides that "[i]n all actions tried upon the facts without a jury . . . [f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Conclusions of law, however, are reviewed de novo. See Baze v. Rees, 217 S.W.3d 207, 209 (Ky. 2006); Ladd v. Ladd, 323 S.W.3d 772, 775 (Ky. App. 2010). Questions regarding intervention pursuant to CR 24.01 are also reviewed under the clearly erroneous standard. Carter v. Smith, 170 S.W.3d 402, 409 (Ky. App. 2004). A decision is clearly erroneous when it is "unsupported by substantial evidence." Danville-Boyle County Planning and Zoning Comm'n v. Prall, 840 S.W.2d 205, 208 (Ky. 1992). And, substantial evidence is evidence "that has sufficient probative value to induce conviction in the minds of reasonable people." Thompson v. Kentucky Unemployment Ins. Comm'n, 85 S.W.3d 621, 624 (Ky. App. 2002).

Intervention by the Board

The City first argues the circuit court erred in allowing the Board to intervene in its suit against the Clerk because the Board's motion did not state grounds for intervention "accompanied by a pleading setting forth the claim or defense for which intervention is sought." CR 24.03. It claims the Board had no interest because KRS 65.012 governs any petition for a referendum, and that statute does not allow for a mere non-resident owner to file a petition. The Board counters that KRS 81A.420 governs and therefore, as the owner of the subject property, it must have a right of intervention to protect its interest. The circuit court granted the Board's motion pursuant to either CR 24.01, intervention as a matter of right, or, in the alternative, CR 24.02, permissive intervention.

We agree with the circuit court that intervention was proper. Intervention of right "shall be permitted" when the party seeking to intervene "claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless that interest is adequately represented by existing parties." CR 24.01(1). The party's interest must be a "present substantial interest in the subject matter of the lawsuit," rather than an expectancy or contingent interest. Baker v. Webb, 127 S.W.3d 622, 624 (Ky. 2004) (citing Gayner v. Packaging Service Corp. of Ky., 636 S.W.2d 658, 659(1982)). Intervention must be timely, and the intervenor must establish the elements as required by the rule: an interest relating to the subject of the action, an inability to fully protect that interest, and a lack of other parties who could protect it on behalf of the intervenor. See Carter v. Smith, 170 S.W.3d 402, 410 (Ky. App. 2004).

Here, we believe the Board had an intervention of right: it timely filed its motion to intervene; its interest, the properties to be annexed, did not merely relate to the subject of the action but were the subject of the action; its interest could be impaired or impeded by annexation; and the only other party, the Clerk, certainly had no interest other than whether he would be required to certify the petition.¹ Although the Board did not file its motion to intervene precisely as provided in CR 24, the circuit court clearly understood the Board's reason for seeking to intervene.

The Civil Rules prescribe a practical pattern for the conduct of litigation and the effective administration of justice. To this end reasonable compliance is necessary. The proper application and utilization of those Rules should be left largely to the supervision of the trial judge, and we must respect his exercise of sound judicial discretion in their enforcement.

Naive v. Jones, 353 S.W.2d 365, 367 (Ky. 1961). The circuit court's order granting intervention was not clearly erroneous, and we therefore affirm.

Statutory Construction

As the circuit court determined, the main question to be resolved involves the statutory interpretation of, and the interplay between, KRS 81A.420(2) and KRS 65.012. The City argues that there is no conflict between the two statutes, and the circuit court erred in so finding: the plain language of KRS 65.012 repeatedly uses the word "shall," and "shall means shall." Therefore that statute alone applies. The legislature is presumed to know of existing statutes when it passes new legislation, and KRS 65.012 is the newer statute. The Board, on the contrary, contends KRS 81A.420 applies because it more specifically addresses annexation.

The circuit court considered two canons of statutory construction: the rule that a more recent statute governs, see, e.g., Williams v. Commonwealth, 829 S.W.2d 942, 944 (Ky. App. 1992), and the rule that a more specific statute governs. See, e.g., Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997). The circuit court ruled that the more specific statute, KRS 81A.420, governed when a property owner is not a natural person but an entity seeking to protect its property interest, whereas KRS 65.012 governs those petitions submitted by natural persons who are residents of the area to be affected. Questions of statutory interpretation are reviewed de novo by this Court. Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644,647 (Ky. 2007).

The purpose of judicial statutory construction is to carry out the intent of the legislature: courts must consider "the intended purpose of the statute—the reason and spirit of the statute—and the mischief intended to be remedied. The courts should reject a construction that is unreasonable and absurd, in...