Kelly v. City of Fort Thomas, Kentucky
| Decision Date | 08 January 2009 |
| Docket Number | Civil Action No. 2:08-54-DCR. |
| Citation | 610 F.Supp.2d 759 |
| Parties | Lisa KELLY, et al., Plaintiffs, v. CITY OF FORT THOMAS, KENTUCKY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Robert E. Blau, Jolly, Blau, Kriege & Turner, PLLC, Cold Spring, KY, for Plaintiffs.
Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, PLLC, Stephen D. Wolnitzek, Wolnitzek & Rowekamp, P.S.C., Covington, KY, for Defendants.
This matter is pending for consideration of the Defendants' motion for summary judgment.1 [Record No. 22] For the reasons discussed below, the Court will grant the Defendants' motion with respect to all issues with the exception of the issue of whether Ordinance § 91.51 is preempted by state law.
The Plaintiffs' original Complaint was filed in the Campbell County Circuit Court on January 4, 2008. On March 24, 2008, the matter was removed to this Court. [Record No. 1] Pursuant to this Court's July 30, 2008, Memorandum Opinion and Order, the § 1983 claims asserted against Defendants Mary Brown, Barbara Runge, James Doepker, Roger Peterman, Barbara Thompson-Levine, Tom Lampe, and Eric Haas in their individual capacities were dismissed. However, the Defendants' motions to dismiss were denied with respect to the state law claims asserted against them in their individual capacities. [Record No. 20] In addition, on November 21, 2008, a preliminary injunction hearing was held; however, the relief requested by the Plaintiffs was subsequently denied. [Record No. 37]
It has been estimated that, in the 1950s, there were approximately 2,000 deer in Kentucky, most of which were concentrated in the Land Between the Lakes region in the western part of the state. During the 1960s, the Kentucky Department of Fish and Wildlife Resources ("KDFWR") began to re-stock deer throughout the commonwealth. Since then, the population has exploded with approximately 450,000 deer estimated to be located throughout Kentucky by 1998. And it has been estimated that by 2004, the state's deer population doubled to approximately 900,000.
Northern Kentucky, including Campbell County where the city of Fort Thomas ("City") is located, is one of the more densely populated areas of the state. [Record No. 22, p. 1] Problems related to the every-expanding Kentucky deer population in the City have become apparent as evidenced by increasing motor vehicle/deer accidents, deer carcasses with signs of physical trauma found along roadways and complaints of deer damaging citizens' property.
By October 2006, the Fort Thomas City Council ("City Council") concluded that it needed to better manage its deer population, and tasked City Administrative Officer Donald Martin ("Martin") with the responsibility of identifying alternatives plans to accomplish this objective. During the following year, Martin worked closely with KDFWR representatives including Clay Smitson, Regional Enforcement Officer for Nuisance Animals, Dr. Tina Brunjes ("Brunjes"), Kentucky Big Game Program Coordinator, and Jim Lane, Kentucky Wildlife Division Director, in an effort to develop a deer management plan. Martin then presented several possible options to the City Council's Public Safety Committee. These options included: (1) planting deer-resistant plants; (2) installing fences; (3) installing scare devices; (4) using deer repellent spray; (5) educating the public about the need to stop feeding deer in the City; (6) urban hunting either with guns or bows; (7) using U.S.D.A. sharpshooters to eliminate a portion of the deer population in the area; (8) relocation; (9) contraception; (10) sterilization; (11) contragestation; and (12) introduction of coyotes.
Based, in part, on advice from KDFWR representatives, the City Council rejected most of the options as being ineffective, too expense, and/or possibly counterproductive. [Id., p. 4, Ex. I, p. 2-4] Finally, the City Council adopted a three-pronged deer management plan ("Plan") that involved: (1) public education about safe driving during deer season and how private property owners could prevent deer from damaging landscape areas;2 (2) a prohibition on deer feeding; and (3) the active removal of deer from city limits. The second and third prongs of the Plan were implemented through a series of ordinances. [Id., p. 4]
On December 3, 2007, the City Council adopted the following ordinances related to the prohibition of intentional deer feeding: § 91.50 (), § 91.51 (prohibiting deer feeding), § 91.52 (), and § 91.99(h) (). In addition, the City Council decided to follow the KDFWR's recommendation that it allow the use of bows to effectuate the third prong of the Plan. To accomplish this, the City Council amended § 95.05 (), and adopted §§ 95.30, 95.31, and 95.32 (). [Id., p. 4-7]
Plaintiffs Lisa Kelly and William Sheffield, both Fort Thomas residents, raise forty-five allegations in their Amended Complaint relating to the Plan Ordinances.3 These allegations can be grouped into the follow categories: (1) all Plan Ordinances are arbitrary and capricious and violate the United States and Kentucky constitutions; (2) all Plan Ordinances are void for vagueness under the United States and Kentucky constitutions; (3) each Plan Ordinance constitutes special legislation; (4) § 91.51 and § 95.05 are preempted by state law; (5) § 91.51 and § 91.52 unconstitutionally infringe upon the Commerce Clause; and (6) § 91.51(b) "creates a criminal presumption not authorized by the legislature," and the associated fine under § 91.99 "is a penalty not authorized by the Kentucky Criminal Code." [Record No. 2, pp. 3-9]
The Defendants contend that they are entitled to summary judgment on all claims asserted in the Plaintiffs' Amended Complaint. [Record No. 22, p. 8] The Plaintiffs, however, argue that summary judgment is inappropriate due to several unresolved issues. [Record No. 29, p. 10]
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barr v. Lafon, 538 F.3d 554, 561 (6th Cir.2008). In contrast, "summary judgment is inappropriate when the evidence raises a genuine issue of material fact." Barr, 538 F.3d at 561. A dispute over a material fact is not "genuine" unless a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Generally, the moving party bears the burden to show that no genuine issue of material fact exists, "but that burden may be discharged by showing — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir.2008) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). Once the moving party has met its burden of production, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Sigler v. American Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The nonmoving party cannot rely upon the assertions in its pleadings, and therefore must come forward with probative evidence such as sworn affidavits, to support its claims.4 Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
In reviewing a party's motion for summary judgment, a court's function is not to "weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Barr, 538 F.3d at 561 (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). In doing so, all evidence must be viewed in the light most favorable to the nonmoving party. Id. However, a mere scintilla of evidence is insufficient defeat a motion for summary judgment. In re Petty, 538 F.3d 431, 439 (6th Cir.2008). Rather, there must be evidence on which the jury could reasonably find for the nonmoving party. Id.
Ultimately, the standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505; Harrison v. Ash, 539 F.3d 510, 516 (6th Cir.2008).
In their Amended Complaint, the Plaintiffs allege that the Plan Ordinances are arbitrary and capricious and, therefore, unconstitutional under § 2 of the Kentucky Constitution and unspecified sections (presumably the Fourteenth Amendment) of the United States Constitution. [Record No. 2, pp. 4-7] The gravamen of this issue concerns which standard of review should be applied. The Plaintiffs argue that strict scrutiny review should be applied because the Plan Ordinances threaten a fundamental right — the right to be free from risk of serious bodily injury.5 [Record No. 29...
To continue reading
Request your trial
-
Sheffield v. City Of Fort Thomas
...8, 2009 and April 23, 2009, the district court granted the defendants summary judgment as to all claims. See Kelly v. City of Fort Thomas, Ky., 610 F.Supp.2d 759 (E.D.Ky.2009). Plaintiffs timely appealed; Kelly, however, withdrew from the lawsuit after she was elected to the very City Counc......
-
U.S. Commodity Futures Trading Comm'n v. Wilson
...made which were so egregious that an appellate court could not affirm the district court's judgment.”See Kelly v. City of Fort Thomas, Kentucky, 610 F.Supp.2d 759, 781 (E.D.Ky.2009) (collecting cases).2 The CFTC has made no such showing. Rather, the CFTC iterates the arguments for restituti......
-
U.S. Commodity Futures Trading Comm'n v. John B. Wilson & JBW Capital LLC.
...were so egregious that an appellate court could not affirm the district court's judgment.” See Kelly v. City of Fort Thomas, Kentucky, 610 F.Supp.2d 759, 781 (E.D.Ky.2009) (collecting cases).2 The CFTC has made no such showing. Rather, the CFTC iterates the arguments for restitution that we......
-
Gati v. W. Ky. Univ.
...exercise [ ] honest discretion necessarily includes [the] power to make an honest mistake [in] judgment." Kelly v. City of Fort Thomas, Ky. , 610 F.Supp.2d 759, 775 (E.D. Ky. 2009) (reversed in part on other grounds); see Rowan Cty. v. Sloas , 201 S.W.3d 469, 484 (Ky. 2006). Bad faith requi......