City of Pikeville v. Pike County, 2008-CA-001056-MR.
| Decision Date | 20 March 2009 |
| Docket Number | No. 2008-CA-001056-MR.,2008-CA-001056-MR. |
| Citation | 297 S.W.3d 47 |
| Parties | CITY OF PIKEVILLE; Frank E. Justice; and Donovan Blackburn, Appellants, v. PIKE COUNTY, Kentucky; Anne Thompson Cassady; and Ballard W. Cassady, Appellees. |
| Court | Kentucky Court of Appeals |
Before DIXON and NICKELL, Judges; BUCKINGHAM,1 Senior Judge.
The City of Pikeville, its Mayor, Frank E. Justice, and its City Manager, Donovan Blackburn, appeal from an order of the Pike Circuit Court that granted a motion to dismiss their petition for a declaration of rights and their statutory action. The issue is whether the City has a statutory or equitable right to challenge a vote against the annexation of property belonging to the appellees, Ballard W. and Anne Thompson Cassady. The trial court concluded that the City did not, and we affirm.
On June 7, 2006, the City enacted Ordinance No. 0-006-010 which stated its intent to annex certain unincorporated territory in accordance with KRS 81A.420(1), which states:
When a city desires to annex unincorporated territory, the legislative body of the city proposing to annex shall enact an ordinance stating the intention of the city to annex. The ordinance shall accurately define the boundary of the unincorporated territory proposed to be annexed, and declare it desirable to annex the unincorporated territory.
Id. The area that the ordinance proposed to annex included part of a tract of property owned by the Cassadys, although it did not include the portion on which their house and outbuildings are located.
The statutory framework for challenging such annexation ordinances is contained in KRS 81A.420(2), which provides that a question on the annexation may be placed on the next election ballot. The statute states in pertinent part:
If following the publication of the annexation ordinance pursuant to subsection (1) of this section and within sixty (60) days thereof, . . . 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:
(a) The mayor of the city shall deliver a certified copy of the ordinance to the county clerk of the county in which the territory proposed to be annexed is located, who shall have prepared to be placed before the voters in each precinct embraced in whole or in part within the territory proposed to be annexed the question: "Are you in favor of being annexed to the City of ..........?" If only a part of any precinct is embraced within the territory proposed to be annexed only persons who reside within the territory proposed to be annexed shall be permitted to vote. The clerk shall cause the sheriff or sheriffs to deliver to the election officers in each precinct in the appropriate counties copies of the ordinance proposing to annex;
(b) If less than fifty-five percent (55%) of those persons voting oppose annexation, the unincorporated territory shall become a part of the city; and (c) If fifty-five percent (55%) or more of those persons voting oppose annexation, the ordinance proposing annexation shall become ineffectual for any purpose.
A petition in opposition to Ordinance No. 0-006-010 was delivered to the Mayor and to the County Clerk, requesting that they take all necessary actions required by KRS 81A.420 to ensure that a public question on the annexation would be placed on the ballot at the next general election. On August 8, 2006, the County Clerk issued a certificate of sufficiency declaring that
[p]ursuant to KRS 81A.420, it is hereby certified that the petition opposing the annexation is sufficient since it is signed by more than fifty (50%) of the property owners of the territory affected. Pursuant to KRS 81A.420, the question on annexation will be placed on the ballot for the November General Election to be held November 7, 2006.
As we have noted, the area that the City planned to annex included part of a tract of property owned by the Cassadys, but not the part on which their residence is actually located. The County Clerk questioned the eligibility of the Cassadys to vote on the annexation question because KRS 81A.420(2)(a) provides that "[i]f only a part of any precinct is embraced within the territory proposed to be annexed only persons who reside within the territory proposed to be annexed shall be permitted to vote."
The Cassadys, who are registered voters in the Coal Run Precinct, submitted affidavits of residency stating that they resided upon property located within the territory to be annexed.2 The County Clerk thereafter allowed the Cassadys to vote on the question. The Cassadys were the only voters to vote on the annexation question, and they both voted "no." Under the terms of KRS 81A.420(2)(c), the ordinance was thereby rendered "ineffectual for any purpose" since more than 55 percent of those persons voting opposed annexation.
The City, the Mayor, and the City Manager thereafter filed a "Petition Demanding Recount of Election Ballots and to Determine Legality of Votes; and Petition for Declaration of Rights," naming the County3 and the Cassadys as defendants. The petition sought relief pursuant to KRS 120.250, which governs contests and recounts of public elections, and KRS 418.040, the Declaratory Judgment Act. It was the position of the City that the Cassadys were ineligible to vote on the annexation question because they do not reside within the territory that the City proposed to be annexed. The County refused to take a position on the issue, but it requested the court to make a judicial determination concerning the legal issues raised by the petition so that the County and County Clerk would have a basis for future decisions.
The Cassadys filed an answer and counterclaim and a motion to dismiss the petition pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f) for failure to state a claim upon which relief can be granted. They argued that the plaintiffs lacked standing to bring an action under KRS 120.250 and that declaratory relief was also unavailable because the election was not void. After conducting a hearing, the circuit court granted the Cassadys' motion to dismiss.4 This appeal followed.
The appellants contend that they were entitled to bring an action to contest the election pursuant to KRS 120.250(1). That statute provides in pertinent part as follows:
Any elector who was qualified to and did vote on any public question, other than a constitutional amendment or a question of local option under KRS Chapter 242, submitted to the voters of any county, city or district for their approval or rejection may contest the election or demand a recount of the ballots by filing a petition, within thirty (30) days after the election, with the clerk of the Circuit Court of the county in which the election was held, which court shall have exclusive jurisdiction to hear and determine all matters in such cases. The petition shall be against the county, city or district in which the election was held, and shall set forth the grounds of contest or reason for requesting a recount. The grounds of contest may be the casting of illegal votes, the exclusion of legal votes, the unfair or illegal conduct of the election, tampering with the returns, the alteration of the certificates of the results, bribery, fraud, intimidation or corrupt practices, or any conduct or practice tending to frustrate, obstruct or interfere with the free expression of the will of the voters.
It is undisputed that none of the appellants is an elector who was qualified to vote and did vote on the public question of the proposed annexation. The appellants have nonetheless argued that they should have been allowed to proceed because, they claim, on a previous occasion this Court gave tacit approval to the Attorney General to proceed with an action under KRS 120.280 () even though he was not an elector. See Chandler v. City of Winchester, 973 S.W.2d 78 (Ky.App.1998). But in that case, as the Cassadys have pointed out, this Court determined that the Attorney General's petition was barred by the 15-day limitations period contained in the statute and therefore never addressed the issue of his standing to bring the suit. Chandler, 973 S.W.2d at 82.
The appellants have also argued that barring them from bringing an action pursuant to KRS 120.250 would lead to an inequitable and absurd result and that the statute was not intended to prevent cities and city officials from contesting allegedly improper voting. They have relied on cases from other jurisdictions to support their contention that the circuit court was free to intervene in spite of the requirements of KRS 120.250. We have reviewed these cases and find the facts in each to be distinguishable. Furthermore, our case law is clear that
[a]n election contest is a purely statutory proceeding, special and summary in its nature. It is without doubt within the authority of the Legislature to prescribe by whom and under what...
To continue reading
Request your trial
-
Christian Cnty. Clerk v. Mortg. Elec. Registration Sys., Inc.
... CHRISTIAN COUNTY CLERK, by and through its County Clerk, Michael Kem; ... Iroquois Post No. 229, Am. Legion v. City of Louisville, 279 S.W.2d 13, 14 (Ky. 1955); see Bowling ... 2009); City of Pikeville v. Pike Cnty. , 297 S.W.3d 47, 52 (Ky. Ct. App. 2009) ... ...
-
Larkey, IV v. Larkey, No. 2008-CA-001956-MR (Ky. App. 6/11/2010)
... ... at the time of her death and, accordingly, which county (Fayette or Letcher) has the authority to conduct a probate ... See also City of Pikeville v. Pike County, 297 S.W.3d 47, 52 (Ky. App ... ...