LOCAL ORDINANCES: KNIGHT V. SPURLIN (COA 4/27/2007)

KNIGHT V. SPURLIN
GOVERNMENT REGULATION:  Local codes – administrative and political questions
2005-CA-002128
PUBLISHED: REVERSING; PAISLEY
DATE RENDERED: 4/27/2007

This appeal arises from a dispute between the county judge/executive and the fiscal court on passing an ordinance.  The fiscal court did not pass that proposed by the judge/executive, and judge/executive would not sign and publish  the code drafted and passed by the fiscal court.  The county attorney then filed a petition for a writ of mandamus against the judge/executive to compel him to sign and publish the order. 

Kent Knight, the County Judge/Executive for Todd County, appeals order of the Todd Circuit Court in which the trial court recognized the administrative code initiated and adopted by the Todd Fiscal Court as legally binding.   

On appeal, Knight argues that the trial court erred when it failed to disqualify the Todd County Attorney as counsel for the Todd Fiscal Court; that the trial court erred when it determined that the issue of the county administrative code was not a political question; that the trial court erred when it authorized the Todd Fiscal Court to initiate and adopt its own code.

COA held the trial court erred when it authorized the fiscal court to initiate and adopt its own code, and thus reversed and remanded; the political question doctrine did not apply; there was no conflict of interest in the county attorney filing the writ against the judge executive; and the fiscal court cannot initiate and adopt its own code.

Under KRS 67.710(2) the General Assembly placed the burden on the county judge/executive to draft and submit an administrative code for approval by the county fiscal court.  Once such a code has been adopted by the fiscal court, the judge/executive will never again be called upon to propose a code.  From then on, the fiscal court may consider amending the code each June or may at any time consider amendments submitted by the judge/executive.

The trial court concluded the issue of the code was not a political question but decided not to address the legality of the fiscal court’s code.  Instead, the trial court felt the issue may become moot if the judge/executive complied with KRS 67.710(2) and actually proposed a code. The trial court ordered Knight to submit a code to the fiscal court within 30 days  The trial court also held there is no legal requirement that the administrative code passed by the Fiscal Court mirror the one proposed by the County Judge.  In addition, the trial court held that if the judge/executive failed to propose a code within the time limit set by the court, then any code adopted by the fiscal court would be recognized by the trial court as legally binding.

With regard to the challenge of the actions by the county attorney who filed suit on behalf of the fiscal court, KRS 69.210(1) lists the duties of the county attorney to include attending fiscal court and when so directed by the fiscal court . . . , he or she shall institute, defend, and conduct all civil actions in which the county . . . is interested before any of the courts of the Commonwealth.

In the present case, the majority of the fiscal court voted to adopt its own administrative code. When Knight refused to complete the necessary steps to enact the code, the fiscal court directed the county attorney to petition the trial court for relief.  Pursuant to KRS 69.210(1), the county attorney was bound to follow the fiscal court’s directive, so he acted appropriately when he filed suit on behalf of the fiscal court. Thus, there was no conflict of interest, and the trial court did not err.

The political question doctrine did not apply as it did not encroach upon the powers of another branch of government.  See,  Philpot v. Haviland, 880 S.W.2d 550, 553 (Ky. 1994) applying the six criteria found in Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962) for determining  whether an issue involved a political question. Since none of the criteria found in Philpot apply, the trial court did not err when it determined that the issue of the administrative code was not a political question.

The COA then adopted the Attorney General’s interpretation of KRS 67.710(2) and KRS 68.005 and held the county judge/executive has the sole responsibility to draft and propose a county administrative code.  Consequently, the trial court erred when it authorized the fiscal court to 
initiate its own code.  Furthermore, when the fiscal court proposed and adopted its own code in January of 2004, the fiscal court violated KRS 67.710(2) and thus its code was invalid.  Since the code was invalid, the fiscal court’s petition for writ of mandamus was not well taken and should have been dismissed by the trial court.

TAYLOR, JUDGE, CONCURRING: He agreed with the majority’s reasoning but would also reverse for an additional reason as the trial court erred by failing to disqualify the Todd County Attorney in this proceeding.

Digested by Michael Stevens

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