Taxpayer's Action Group of Madison County v. Madison County Bd. of Elections
| Decision Date | 17 June 1983 |
| Parties | TAXPAYER'S ACTION GROUP OF MADISON COUNTY, Mona Bicknell, and Leonora Whicker, Appellants, v. MADISON COUNTY BOARD OF ELECTIONS, Richmond Independent Board of Education, South Central Bell Telephone Company, Richmond Water, Gas and Sewage Works, Kentucky Utilities, and Western Union Telegraph Company, Appellees. |
| Court | Kentucky Court of Appeals |
Leroy W. Rowland, Lexington, for appellants.
John Coy, W. Joseph Joiner, Allison Lobb Milby, Paul Fagan, William G. Clouse, Madison County Atty., Richmond, Creighton Mershon, Malcomb Y. Marshall, Louisville, Edward F. Prichard, Jr., W. Patrick Stallard, Phillip J. Shepherd, Prichard, Stallard & Shepherd, Frankfort, for appellees.
Before HOWERTON, McDONALD and WHITE, JJ.
The Taxpayer's Action Group of Madison County was held to be a nonentity, with no right to sue or be sued. It is no longer a party in this case. Bicknell and Whicker appeal from a judgment of the Madison Circuit Court dismissing their action against the appellees. The trial court held that they had no right of appeal from the Board of Elections in this situation. We affirm.
The Richmond Independent Board of Education levied a utility gross receipts tax on residents of the school district on February 19, 1981. The appellants circulated a petition pursuant to KRS 160.597 seeking to have the tax question placed on the ballot in the next election. The statute required that the petition be submitted to the County Board of Elections within 30 days from the date of the resolution. The appellants filed the petition on Monday, March 23, 1981, 32 days after the tax was levied. The Board rejected the petition because it was not filed within the 30-day period.
On May 6, the Taxpayer's Action Group sued the Board of Elections. The Circuit Court ruled against the Action Group but allowed Bicknell and Whicker to be substituted as parties. The complaint requested the court to direct the Board of Elections to certify the signatures on the petition and to allow the question to be placed on the ballot. The complaint alleged that the Board's failure to accept the petition as untimely was erroneous. The complaint made no allegation of a constitutional violation, nor did it plead that the remedies at law were inadequate or that irreparable harm would occur in the absence of judicial intervention.
The appellants argue that the trial court erred in dismissing the action for three reasons.
1. The decision of the Madison County Board of Elections was arbitrary, erroneous, and beyond the scope of its statutory powers.
2. The lower court's dismissal of this action violates appellants' rights guaranteed under the United States and Kentucky Constitutions.
3. The lower court abused its discretionary powers under KRS 23A.010(4) by dismissing this action.
KRS 446.030(1)(a) provides in part, "The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, ... in which event the period runs until the end of the next day which is not one of the days just mentioned." It is clear that the Board of Elections erroneously refused to consider the petition. Monday, March 23, would have been the last day to file the petition. The appellants' remedy, however, was to reapply to the Board of Elections rather than to file an action in court. KRS 160.597 requires the Board to permit petitioners to correct any deficiencies, "for good cause shown" following notification by the Board to the petitioners of any deficiencies. The appellants should have pointed out the error to the Board. Failure to raise an issue before an administrative board precludes a litigant from asserting that issue in an action for judicial review of the agency's action. ...
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