Robinson v. Ehrler

• Court: Supreme Court of Kentucky
• Writing for the Court: LEIBSON; STEPHENS; AKER, J., dissents by separate opinion in which GANT; WINTERSHEIMER; WINTERSHEIMER; AKER; I am authorized to say that GANT
• Citation: Robinson v. Ehrler, 691 S.W.2d 200 (Ky. 1985)
• Decision Date: 23 May 1985
• Docket Number: Nos. 85-SC-349-T,85-SC-350-TG,s. 85-SC-349-T
• Parties: John W. ROBINSON, Appellant, v. Bremer EHRLER, Jefferson County Judge/Executive, et al., Appellees. Bremer EHRLER, Jefferson County Judge/Executive, et al., Appellants, v. John W. ROBINSON, Appellee.

Page 200

691 S.W.2d 200

John W. ROBINSON, Appellant, v. Bremer EHRLER, Jefferson County Judge/Executive, et al., Appellees.

Bremer EHRLER, Jefferson County Judge/Executive, et al., Appellants, v. John W. ROBINSON, Appellee.

Nos. 85-SC-349-TG, 85-SC-350-TG

Supreme Court of Kentucky.

May 23, 1985.

Rehearing Denied July 3, 1985.

Stephen R. Schmidt, Brown, Todd & Heyburn, Louisville, for appellant/appellee Robinson.

N. Scott Lilly, Louisville, for appellees/appellants Bremer Ehrler, et al.

LEIBSON, Justice.

This is an appeal from an Opinion and Order of the Jefferson Circuit Court in two consolidated cases attacking the validity of the election held November 6, 1984 returning Jefferson County Fiscal Court from a commissioner to a magisterial form of government. The case also challenges the validity of post election procedures followed to implement the result of the election.

The power to hold an election to change Fiscal Court back from commissioner form to the former magisterial form is statutory. KRS 67.050 enacted in 1892 provided a mechanism for a referendum submitting to the voters of the County the question whether to change Fiscal Court to the commissioner form of government. In 1968 it was amended to make it possible to submit to the electorate the question of whether to return Fiscal Court back to the magistrate form of government. 1968 Kentucky Acts, Ch. 80, at 206. Among other things KRS 67.050 requires preelection newspaper publication "pursuant to KRS chapter 424" and "in addition" that it be advertised "by printed handbills posted at one or more conspicuous places in each precinct ... stating when the election will be held and the purpose thereof." It is stipulated in the record that these legal requirements for holding the election were not met.

"Neither the Jefferson County sheriff nor any other officer appointed to hold the election either had the Order published pursuant to KRS Chapter 424 or had the required handbills regarding the election on the Public Question posted in each precinct in the county before the election as required by KRS 67.050(1) and (3)." Stipulation of Facts, # 5, filed Feb. 22, 1985.

Further, KRS 67.050(1) provides that when the County Judge/Executive receives a written petition of 100 voters requesting an election to submit this question, he "shall" enter an order calling the election "at the next regular term after the petition is filed." KRS 67.050(1). Again, it is stipulated that this procedure was not followed. Although there is some confusion about what constitutes a "regular term" under statutes and ordinances presently extant, the present Order was entered on a date that fits no conceivable definition of the term.

John W. Robinson, a resident of Jefferson County who voted at the November 6, 1984 election, filed suit on January 22, 1985, seeking judgment declaring the magisterial referendum election void.

His suit further attacked the validity of the post-election procedures used to reapportion the county to accommodate the return to a magisterial form of government, claiming that the District Reapportionment Commission was constituted and functioned unlawfully, and, further, that the Commission's report, which was adopted by Jefferson Fiscal Court, should be declared void in any event because "the fifth district ... [was] not drawn according to the criteria set out in KRS 67.045(2)."

His second suit filed January 30, 1985, consolidated with the first, reiterates the allegations of the first insofar as the work of the Reapportionment Commission, and alleges additional reasons to declare unlawful the subsequent efforts by the County Judge/Executive and Fiscal Court to remedy deficiencies in the functioning of the Reapportionment Commission.

Both suits combined seek multiple relief including: voiding the November 6, 1984 magisterial referendum, voiding the work of the District Reapportionment Commission, and enjoining the scheduled elections to fill the newly created positions of Justice of the Peace or a magistrate.

Because this is a case of great public interest in Jefferson County, and because a large number of candidates have filed and are committed to campaigning both for the newly created positions of Justices of the Peace (magistrates), and for the positions of Constable which presumably attend to each election for magistrate, the trial court proceeded with all deliberate speed. The trial court scheduled oral argument as soon as possible allowing only time necessary for pleadings, stipulation of facts, and preargument briefs. The case was argued on March 29, 1985. On April 4, 1985 the trial court entered an extensively written Opinion and Order addressing the multiple questions at issue.

The appellate process has proceeded with similar promptness. Notices of appeal and cross-appeal were filed April 15, 1985. The parties filed a joint motion for transfer to the Supreme Court, which was granted, thus bypassing whatever delay would have been otherwise occasioned during a voyage in the intermediate appellate court. Briefing followed an expedited schedule, and oral arguments were scheduled for immediately after completion of the brief process. The last Reply Brief was due May 13th. Oral argument was set for May 14th.

With due deference to the large number of candidates continuing to expend time and money in escalating proportions as election date approached, our decision was announced by Order, opinion to follow, immediately upon conclusion of the deliberative process. Our Order of May 17, 1985 declared the referendum election void.

Announcing the decision with opinion to follow is an unusual step done solely out of consideration of the ongoing efforts of those involved in the election. We desire to limit the adverse effects upon them as much as possible.

As Kentucky's court of last resort, all of our decision making involves consequences that fall heavily on the losing party. Where so many are affected, both candidates and electorate, we are acutely aware of both the difficulties and the responsibility. Nevertheless, we must discharge the responsibility entrusted to us to the best of our ability and in accordance with our own conscience. We have been entrusted with the responsibility of deciding this case according to law without regard to whether or not the decision is a popular one. Our opinion is as follows:

1) KRS 67.050(1) requires that the order calling the election on the magisterial form of government be "published pursuant to KRS Chapter 424." KRS 424.140(2) requires the advertisement of such an election, stating "the time and purpose of the election, and ... the substance of the question," and KRS 424.130(1)(d) requires that such advertising "shall be published at least once ... not less than seven (7) days nor more than twenty-one (21) days before" the election takes place. It is stipulated by the parties that these mandatory advertisement requirements were never complied with.

2) KRS 67.050(1) further requires that the responsible officials shall "in addition advertise it [the election] by printed handbills posted at one or more conspicuous places in each precinct in the county for the length of time that publication is required, stating when the election will be held and the purpose thereof." It is stipulated that no handbills were posted.

3) KRS 67.050(1) further requires that the County Judge/Executive's order calling the election "shall be entered at the next regular term after the petition [calling for it] is filed." The County Judge/Executive's order in this case was not entered "at the next regular term after the petition" under any conceivable interpretation of the meaning of "regular term." There has been no effort to explain how the order as entered complied with this requirement. We are urged to disregard its existence, but are not at liberty to do so.

The trial court concluded that "the statutory provision for the publication and posting of the election is mandatory," and that "failure to follow such provision as required by the statute would be a fatal defect and invalidate the election." However, the trial court avoided this unhappy result stating the following reason:

"Although failure to comply with the statute as to publication and posting is sufficient to invalidate the election, ... plaintiff's complaint is barred for failing to challenge the election within thirty (30) days thereafter, pursuant to KRS 120.250."

Thus, in reviewing the judgment the threshold issue is whether this action to declare the election void is barred because it was not brought within thirty days under the terms of KRS 120.250.

With respect to appellant's efforts to have the actions of the redistricting commission voided as unlawful, the thirty days provision in KRS 120.250 has no application. The statutes involved are KRS 67.050(4) and KRS 67.045, styled "District boundaries--Reapportionment-Procedure." The trial court held that "the Fiscal Court, recognizing it failed to comply with the requirements of the statute appointed [a] second committee of commissioners." The trial court held that the action of the second committee cured the defects in the first. The trial court further found that one of the eight districts drawn by the commission, the fifth district, was so drawn as to fail to comply with the statutory requirement of being "compact," and ordered that "the reapportionment plan be remanded to the Fiscal Court" to comply with the statute. However, the trial court ordered that the elections could go forward "as presently apportioned" with redistricting to take place after the November, 1985 general election at which the magistrates would be selected.

Because we have decided that the thirty day proviso for election contests under KRS 120.250 does not bar the appellant's claim that the November referendum was void, we do not decide these further questions regarding how the reapportionment commission was constituted and how it...