ENTERED CAMPBELL CIRCUIT COURT
 MAY 12 2009
TAUNYA NOLAN JACK, CLERK
 

COMMONWEALTH OF KENTUCKY
CAMPBELL COUNTY COURT
DIVISION II
CASE NO. O8-CI-01308

TIMOTHY NOLAN AND
JULIA NOLAN PLAINTIFFS

V. ORDER AND JUDGMENT

CAMPBELL COUNTY FISCAL
COURT, et al. DEFENDANTS

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This matter is before the Court upon the Plaintiffs Motion for Partial Summary Judgment and the Defendants Motion for Summary Judgment.  The Plaintiffs have also moved the Court to strike all of the Defendants' exhibits which describe Newport, Kentucky as a County seat or one of two county seats of Campbell County. Kentucky,

The Motion to strike the exhibits is denied. While this Court agrees with the Plaintiffs that these exhibits may not be relevant to the legal location of the Campbell county seat, absent an ambiguity in the statute, the exhibits are relevant to other issues presented in these motions.

The central issue in this case is the "official" location of the county seat of Campbell County, Alexandria or Newport or both. The other issues: the physical location of the offices of the Sheriff, Property Valuation Administrator, and the County Clerk; the notice requirements of KRS 67.090; the tax imposed by the Fiscal Court pursuant to KRS 23A.220; and the liability of the County officials, all relate to but are not necessarily controlled by a resolution of the central issue.  The issue, belatedly raised by the Plaintiffs in Court 5 of the Amended Complaint, arguing that Campbell County ordinances may not have been published in compliance with KRS 67.075 and 67.077 is speculative.  Additionally, this issue is not related to the location of the county seat and is not required to be raised in this action.  That count of the Amended Complaint should be dismissed.

For the reasons stated below this Court will grant the Plaintiffs Motion for summary judgment that Alexandria is the county seat of Campbell County. Additionally this Court will grant the Defendants Motion for summary judgment on all other issues.  Summary judgment is appropriate in this case since the arguments presented by the Plaintiffs and the Defendants are based upon statutory interpretation and the application of those statutes to undisputed facts.  There are no genuine issues of material fact involved in this dispute.  CR.56.03, Steelvest, Inc. v. Scansteel Service Center, Inc. 807 S.W. 2d 476 (Ky.1991)

Campbell County was created by the General Assembly of Kentucky in 1795. Commissioners for Courthouse Dist. of Campbell County vs. City of Newport, 29 Ky.L.Rptr.649, 94 S.W. 629 (1996) In 1840, pursuant to an act of the Kentucky Legislature, the county seat, then located at Newport, was established at Alexandria. Id. No evidence has been presented to this Court that this formal designation of Alexandria as the county seat of Campbell County has ever changed.  Evidence presented by the Defendants that Newport is considered a county seat or one of two county seats by historians, encyclopedias and government agencies is based upon the practical realities of how county government and the court system have functioned, pursuant to law, in Campbell County for the past 150 years.  However, none of the special acts related to the Newport Court House District ever designated Newport as the county seat.

The Plaintiffs maintain that since Alexandria is the "official" county seat of Campbell County, House Bill 103 (2008 Kentucky Acts, Chapter 27, effective July 15, 2008) KRS 67.035, KRS 134.160 and KRS 132.410 (1) require the Property Valuation Administrator (PVA) the Sheriff and the County Clerk be physically located in the County Courthouse in Alexandria Kentucky. (1)  Plaintiffs maintain that Campbell Fiscal Court has failed to comply with the "notice" provisions of KRS 67.090 because the Fiscal Court regularly meets on the third Wednesday of each month at the Campbell County Fiscal Court Administration Offices in Newport, Kentucky. (2)  The Plaintiffs also maintain that since the Campbell County Fiscal Court does not own or manage the Court House in Newport, Fiscal Court cannot impose the fees permitted by KRS 23A.220 and KRS 24A.185.

ANALYSIS

House Bill 103 provides:
(1) Any taxing authority established under the Acts listed in paragraphs (a) to (d) of this subsection shall expire upon the effective date of this Act.  The authority to levy any such taxes shall not transfer to any county or local government.
(a 1882 Kentucky Acts Chapter 1107
(b) 1886 Kentucky Acts Chapter 232
(c) 1898 Kentucky Acts Chapter 50
(d) 1966 Kentucky Acts Chapter 210

(2) Any requirement for the provision of office space for elected officials, officers, and employees of the city or county contained within the court house district established under the Acts listed in subsection (1) of this section, and who are not directly related to the functions of the Circuit and District Courts and other offices or courts administered by the Administrative Office of the Courts shall expire upon the effective date of this Act.

There is no language in HB 103 that is relevant to whether Alexandria is the sole County seat of Campbell County of shares that distinction with Newport and this Court can find no requirement in the plain language of HB 103 that any of the 3 officers of offices complained of must relocate to the County Court House in Alexandria.  Section 1 of the Act simply repeals or amends specific tax portions of 4 previous acts of the General Assembly. (Albeit without specifying exactly what portions are being amended or repealed)  Section 2 of the Act, again without specificity, removes any mandate that may exist in the Acts of 1882, 1886, 1898 and 1966 to provide offices for elected county or city officials, unless they are "directly related to the function of the ...courts."  A fair reading of HB 103, for purposes of this action, is that the Newport Court House District does not have to provide office space for either the PVA or the County Clerk.  There is also nothing in the Act which prohibits the District from providing such office space.

The Sheriff

KRS 134.160 provides:

The sheriff shall keep his office at the county seat, except in counties where he has an office already established in a city other than the county seat, in which case he shall continue his office at the place now established. (emphasis added)

The Sheriff already maintains an office in Newport and may continue to do so.

Contrary to the Plaintiffs argument "place" does not refer to a building but to a city. Additionally the sheriff is an elected official "directly to the function of the courts."  HB 103 (2) (3)  The exact issue is not now before this Court but the Court House District may be required to provide office space for the Sheriff pursuant to the special statutes enacted for the Campbell County Court House District. Furthermore, the 1856 Acts of the General Assembly, Chapter 204, Section 5, requires the "Sheriff and his deputies shall attend court at Newport..."  This Act, not repealed or amended by HB 103, certainly requires the sheriff's presence in Newport and implies that he is to maintain an office in the City.  However, HB 103, KRS 134.160 and Chapter 204 of the 1856 Acts do not prevent the Sheriff of Campbell County from also maintaining a presence in Alexandria.

The County Clerk and the PVA

Chapter 50 of the 1898 Acts of the General Assembly specifically recognized that "In the County of Campbell, Circuit and County Courts are held and all the County Officers have Offices in the City of Newport as well as in Alexandria, the County Seat..." Chapter 880, Section 1 of the 1863 Acts of the General Assembly provides: "That, in addition to the county courts now held in the county of Campbell, the presiding judge of said county shall hold, annually twelve terms of the Campbell County court in the city of Newport."  Section 2 of the same Chapter required:

"The clerk of said county court shall keep a distinct docket and record books for the terms held at Newport, in which shall be recorded all the business done in said court in the same manner and to the effect that records are now kept in county court clerk's offices.  The clerk shall keep an office in Newport, at such place as said city may provide, in which he shall keep the records of said court." (emphasis added) Chapter 1107, Section 7 of the 1882 Acts of the General Assembly required that:

"All deeds, mortgages, leases and conveyances for the sale, transfer, pledge or lease of property within said (Court house) shall be recorded in the city of Newport..."

Chapter 956 of the 1884 Acts of the General Assembly provided for the cross indexing of "all deeds and mortgages in the county clerk's office at Newport" with the indexes to remain in the Newport Office.

Special statutes adopted prior to the adoption of the 1890 State Constitution, unless specifically repealed, are still in force.  Commissioners for Courthouse Dist. of Campbell County v. City of Newport et al. 29 Ky.L.Rep. 649, 94 S.W. 629.630 (1906) citing City of Covington v. Kenton County, (citations omitted) HB 103 only amended or repealed the taxing provisions of certain special acts.  The statues requiring or acknowledging the presence of county officials in Newport are still law, and the county clerk, by specific designations, is required to maintain an office in Newport.

KRS 132.410(1) requires the fiscal court of each county to "provide for the property valuation administrator a suitable office room or rooms in the county courthouse, or ... some other building at the county seat."  This statute does not prevent the fiscal court from providing office space for the PVA in Newport, especially given the unique history of the Newport Court House District; created, acknowledged and approved by the Kentucky General Assembly.

NOTICE OF MEETINGS

KRS 67.090(1) provides:

"The fiscal court of each county shall hold its sessions at the county seat or at other county government centers within the county as authorized by the fiscal court.  On the seventh day prior to any meeting of the fiscal court, at a site other than the county seat, the clerk of the fiscal court shall, for one (1) day, publish notice of the meeting in a newspaper as provided by KRS Chapter 424."

The Plaintiffs claim that Fiscal Curt has not given the requisite notice for the monthly meetings held in Newport since Newport is not the county seat.  The argument is that all actions taken in these meetings are void.  The Campbell County Fiscal Court adopted Resolution R-01-07 on January 3, 2007, establishing regular meetings for Fiscal Court for the years 2007, 2008, 2009 and 2010 to be held on the first Wednesdays of the month at Alexandria and the third Wednesdays of the month in Newport. (4)  Since Chapter 880, Section 1 of the 1864 Acts of the General Assembly requires that the Campbell county court meet 12 times annually in the city of Newport, Fiscal Court has satisfied the requirements of KRS 67.090.  The specific statutory provisions of Chapter 880, Section 1 take precedence over the general provisions of KRS 67.090. Spees v. Kentucky Legal Aid, 274. S.W. 3d 447.450 (Ky. 2009)

KRS 23A.220 & KRS 24A.185 Fees

KRS 23A.220 and 24A.185 permit fiscal courts to "assess additional fees and costs for the purpose of paying expenses for courthouses, bonds related to them, and administration expenses" of the Circuit and District Courts.  The Plaintiffs argue that since the Campbell Fiscal Court does not control the Newport Court House, Fiscal Court cannot collect these fees except for the limited purpose of providing parking for District Court.  There is no allegation that these funds have been spent for any purpose other than that allowed by statue such as security or administration expenses.  The Court also notes that the statute also refers to expenses for "courthouses" which may cover facilities other than the buildings at Newport.  This issue is better left to the required audits of county expenditures.  Absent some specific demonstration that the statues are being violated, this Court does not intend to involve itself in micro-managing the affairs of the local governments.

CONCLUSION

The Plaintiffs Motion for Summary Judgment regarding the official county seat of Campbell County is granted.

The Defendants Motions for Summary Judgment regarding the location of the PVA, Sheriff and County Clerk are granted.  In addition, the Defendants Motions for Summary Judgment concerning Notice and Fees are granted.

Since this Court has granted summary judgment on the location and notice issues, the issue of sovereign immunity is moot and the claims against the Newport County officials are denied.

Court V of the Amended Complaint is dismissed.

Alexandria is DECLARED to be the County Seat of Campbell County.

All other claims in the Complaint are DISMISSED.

Parties are to bear their own costs.

This is a final and appealable judgment of Campbell Circuit Case No. 08-CI-01308. Ordered this day 11 day of May, 2009.
Signed Roger Crittenden, Special Judge
Campbell County Court

DISTRIBUTION:

Attorney for Plaintiffs

Robert E Blau
Blau & Kriege, PLLC
3699 Alexandria Pike
Cold Spring, KY 41076

Attorney for Defendants

Jeffrey C Mando
Jennifer H Langen
Adams, Stepner, Woltermann & Dusing, PLLC
40 West Pike Street
P.O. Box 861
Covington, KY 41012-0861
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(1) Count 1, Paragraph 15 of the Original Complaint filed sep 2, 2009
(2) Count 3 of the Original Complaint and Exhibit 14 of "Plaintiffs' Memorandum in Opposition to Defendant's Motion for Summary Judgment...
(3) The Court take judicial notice that the sheriff's office routinely serves court papers, transports prisoners, provides bailiffs and provides security for the courts of the Commonwealth.
(4) Exhibit 14 of the Plaintiffs Memorandum in Opposition to Defendant s Motion for Summary Judgment

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