Opinion
NO. 2018-CA-000101-MR NO. 2018-CA-000114-MR
01-10-2020
SHELIA AKERS AND MATTHEW POWELL APPELLANTS v. CITY OF MAYFIELD AND GRAVES COUNTY CLERK APPELLEES AND CITY OF MAYFIELD CROSS-APPELLANT v. SHELIA AKERS AND MATTHEW POWELL CROSS-APPELLEES
BRIEFS FOR APPELLANTS/CROSS-APPELLEES: C. Ed Massey Erlanger, Kentucky BRIEF FOR APPELLEE/CROSS-APPELLANT, CITY OF MAYFIELD: Glenn D. Denton Paducah, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 17-CI-00253 CROSS-APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 17-CI-00253 OPINION
AFFIRMING
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BEFORE: COMBS, MAZE AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Shelia Akers and Matthew Powell appeal from an order of the Graves Circuit Court granting the City of Mayfield's (the City's) motion to dismiss their complaint alleging that they have a right to vote in any election concerning the annexation of certain property owned by the Graves County Board of Education (the Board). Because this Court previously ruled that the Board did not, and could not, meet the statutory requirements for filing a referendum petition on the issue of annexation, the circuit court concluded the issue of whether Akers and Powell are entitled to vote on any such question is moot. We agree with the circuit court's reasoning and affirm.
Although Akers is sometimes referred to in the record as Sheila Akers, the notice of appeal identifies her as Shelia Akers.
In December 2015, the City passed two ordinances stating its intent to annex four parcels of property owned by the Board. The ordinances were published and became effective on January 19, 2016, and were again published on March 7, 2016.
On December 22, 2015, the City wrote the Board to provide official notice of its intent to annex the identified parcels. On January 5, 2016, the Board sent a letter to the Mayor of the City objecting to the annexation, which the Board considered to be its notice to the City that it was petitioning for a referendum on the annexation, to be certified by the Graves County Clerk (the Clerk) and brought for a vote in the November general election.
On January 11, 2016, the Board and Akers, who alleged to reside on a property identified to be annexed, filed a petition for rule and declaratory judgment requesting an order directing the Clerk to conduct an election and to identify any residents or owners as qualified voters and permit any residents or owners to vote. We refer to that action as 16-CI-012. The petition was later amended and Powell was named as a plaintiff and also alleged to reside on property identified to be annexed.
On March 22, 2016, the City filed a complaint for declaratory judgment and injunctive relief against the Clerk seeking an injunction prohibiting the Clerk from certifying the election on the annexation issue. That action is referred to as 16-CI-112. The City argued that the Clerk could not certify the petition because it did not meet the requirements of Kentucky Revised Statutes (KRS) 65.012. As it existed at the time, that statute required "[a]ll referendum petitions permitted by general law in KRS Chapter[ ] . . . 81A . . ." to include the "(a) Printed name of the petitioner; (b) Signature of the petitioner; (c) Year of birth of the petitioner; (d) Residential address of the petitioner; and (e) Date that the petitioner signed the petition[.]" KRS 65.012(1) It also required that a person eligible to sign a referendum petition be a registered voter who lives in the area to be affected by the referendum. Id.
KRS 65.012 was amended in 2018 and now requires the:
(a) Printed name of the petitioner;The amended statute further provides:
(b) Signature of the petitioner, or if the petitioner is a business or other organization, the signature of the legal representative of the business or organization;
(c) Year of birth of the petitioner if the petitioner is an individual other than a business or other organization;
(d) Residential address of the petitioner, or if the petitioner is a business or other organization, the address of the physical location of the business or organization that authorizes it to be a petitioner and, if different, the address of its headquarters; and
(e) Date that the petitioner signed the petition.
(2) Unless otherwise explicitly provided under the applicable law governing the petition, to be eligible to sign any referendum petition described in this section, a petitioner shall:
While it would appear that the Board would be "a business or other organization," that language was not contained in the statute when the Board sent its letter to the City or while this matter was litigated in circuit court.(a) Live in the district or jurisdiction that will be affected by the referendum or, if the petitioner is a business or other organization, have a physical address within the district or jurisdiction that will be affected by the referendum; and
(b) Be a registered voter if the petitioner is an individual other than a business or other organization.
The Board sought to intervene in 16-CI-112. It argued the petition was governed by KRS 81A.420(2). Under that statute, property owners, as well as residents of the affected area, may petition for a referendum:
If following the publication of the annexation ordinance pursuant to subsection (1) of this section and within sixty (60) days thereof, or if in any annexation proceeding where the annexing city has not adopted a final annexation ordinance, within sixty (60) days of February 12, 1988, fifty percent (50%) of the resident voters or owners of real property within the limits of the territory proposed to be annexed petition the mayor in opposition to the proposal, an election shall be held at the next regular election if the petition is presented to the county clerk and certified by the county clerk as sufficient not later than the second Tuesday in August preceding the regular election[.]
On May 20, 2016, the circuit court issued an order in 16-CI-012 requiring the Clerk to conduct an election regarding the annexation of the identified parcels. The circuit court further ruled that the Board, not being a resident voter, would not be permitted to vote in the election. However, the circuit court ruled that resident voters as described in KRS 81A.420 as determined by the Clerk were permitted to vote.
On that same date, the circuit court entered an order in 16-CI-112. The circuit court granted intervention, denied injunctive relief, and declared that the petition had been properly submitted. It ordered the Clerk to certify the petition and place the question of annexation on the ballot in the general election. The circuit court reasoned that although the Board could not meet the requirements of KRS 65.012 since it has no date of birth, no address, and is not a registered voter in the area to be annexed, it found the Board properly filed a petition under KRS 81A.420(2).
The City appealed in 16-CI-112 and the appeal was expedited. No appeal was filed in 16-CI-012. The City's appeal resulted in this Court's opinion in City of Mayfield v. Kennemore, No. 2016-CA-000841-MR, 2016 WL 4256898 (Ky.App. Aug. 5, 2016) (unpublished).
In that opinion, this Court held that the Board could not comply with the requirements of KRS 65.012 because it is not a natural person and, therefore, no complying petition was filed and no election could be held. Id. at *4. The Clerk was enjoined from holding an election. Id. This Court noted that in the Board's letter to the Mayor, it alleged there were residents on the parcels identified to be annexed, yet no resident filed a petition opposing annexation as required by KRS 65.012. Specifically, this Court commented that it was "at a loss as to why those persons, if registered voters, did not properly file a petition since they apparently would meet the requirements of KRS 65.012." Id. at *4 n.3. The Kentucky Supreme Court subsequently denied discretionary review.
On June 26, 2017, Akers and Powell filed the present action against the Clerk alleging they are residents of identified property, which by then had been annexed, without them having the opportunity to vote on the annexation. They requested that an election be held. The City intervened and filed a motion to dismiss arguing that this Court's decision in City of Mayfield rendered the issue of an election moot because no proper petition was filed and, therefore, there could be no referendum of the issue of annexation.
The circuit court granted the motion to dismiss. Although it recognized that Akers and Powell may be entitled to vote if an election was held, there was not, nor could there be, an annexation referendum because this Court held that the only petition filed that would cause an election to be held was void. The circuit court denied the City's motion for Kentucky Rules of Civil Procedure (CR) 11 sanctions. This appeal by Akers and Powell followed and the City cross-appealed.
Akers and Powell argue that their constitutional rights to vote have been violated. Logically, there can be no right to vote if there is no election where that right can be exercised. That is precisely the situation.
In City of Mayfield, this Court ruled that the only petition that would require an election was that by the Board, which was void. As observed in this Court's prior opinion, Akers and Powell never filed a petition pursuant to KRS 81A.420(2) nor did their names, birthdates, addresses, or signatures accompany the petition presented by the Board as required by KRS 65.012. Although they now claim had they known the result that would be reached in City of Mayfield, they would have filed a petition or joined in that filed by the Board, that is immaterial. The time passed long ago to put the issue on the ballot. Simply put, Akers and Powell assert a right to participate in an election that was not and will not be held. The circuit court correctly concluded that the issue is moot.
Moreover, we point out that although Akers and Powell complain that this Court did not address the ability of Akers and Powell to meet the requirements of KRS 65.012, that was not an oversight by this Court. Akers and Powell were not parties to 16-CI-112, so that issue was not before this Court.
In light of our decision, we do not address whether Akers and Powell are residents of the annexed parcels or, as the City suggests, their residency status is fictionalized to support the opposition of the Board to annexation.
Finally, we address the City's request for CR 11 sanctions. The City argues that sanctions are appropriate because this action was filed with the knowledge of Akers, Powell and their attorney that this matter had been fully adjudicated.
CR 11 requires that all pleadings be signed by the party or counsel of record. The rule further provides:
The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it
is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation . . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.As explained in Lexington Investment Co. v. Willeroy, 396 S.W.3d 309, 312-13 (Ky.App. 2013) (citations omitted):
CR 11 does not provide substantive rights to litigants but is a procedural rule designed to curb abusive conduct in the litigation process. It is intended only for exceptional circumstances. The test to be used by the trial court in considering a motion for sanctions is whether the attorney's conduct, at the time he or she signed the allegedly offending pleading or motion, was reasonable under the circumstances. Where a trial court denies a motion for sanctions under CR 11, this Court's review is limited to a determination of whether the trial court abused its discretion. The test for abuse of discretion is whether the trial court's ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
We conclude that the circuit court did not abuse its discretion in denying CR 11 sanctions. As found by the circuit court, Akers's and Powell's claim that they have the right to vote in any election concerning the annexation of property on which they reside is not without merit. The problem with their claim is that there is no longer a means to exercise that right. Given that the right to vote is fundamental, we will not reverse the circuit court's denial of sanctions for filing an unsuccessful action to enforce that right.
For the reasons stated, the order of the Graves Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR
APPELLANTS/CROSS-
APPELLEES: C. Ed Massey
Erlanger, Kentucky BRIEF FOR APPELLEE/CROSS-
APPELLANT, CITY OF
MAYFIELD: Glenn D. Denton
Paducah, Kentucky