Opinion
No. 2010-CA-000269-MR.
May 13, 2011.
Appeal from the Trigg Circuit Court, C.A. Woodall, III, J.
W.E. Rogers, III, Hopkinsville, KY, for appellant.
Donald E. Thomas, Benton, KY, for appellee, Ezell as Representative for Petitioners in Montgomery Precinct.
Before COMBS, THOMPSON, and VANMETER, Judges.
OPINION
Grow Trigg, Inc., appeals a declaratory judgment of the Trigg Circuit Court that permits a precinct in Trigg County to hold a local option (wet/dry) election. Following careful review, we reverse.
The facts are not disputed by either party. On September 29, 2009, Trigg County held an election to determine whether it would allow the sale of alcoholic beverages. By a narrow margin of thirty-six votes, the county abolished prohibition. On November 12, 2009, a group of residents in the Montgomery Precinct filed a petition to hold a new election in that precinct only. The county judge executive consulted with the Kentucky Board of Elections and with the Kentucky Alcohol Beverage Control Board. These two bodies rendered conflicting opinions. Therefore, upon recommendation of the Trigg county attorney, the county judge executive filed a declaratory judgment action in the Trigg Circuit Court.
In December 2009, the citizens of Montgomery Precinct, joining as petitioners, named Roy Ezell as their representative for the legal proceedings. The court, sua sponte, added Grow Trigg, Inc., as a respondent. The court explained that it wanted to hear arguments on both sides of the issue. Grow Trigg is a citizen group that worked to hold the initial county-wide election with the aim of improving the local economy by allowing the sale of alcoholic beverages. After reviewing briefs and hearing oral arguments from both parties, the court found that the citizens of Montgomery Precinct do have a legal right to hold their own election for their precinct alone. Grow Trigg then filed this appeal.
Preliminarily, Ezell argues that Grow Trigg does not have standing in this case. However, because Ezell did not argue the issue in a cross-appeal, we are precluded from addressing it. Jackson v. Mackin, 277 S.W.3d 626, 630 (Ky.App. 2009). See also Harrison v. Leach, 323 S.W.3d 702 (Ky. 2010).
Grow Trigg argues that the statutory scheme governing local option elections prohibits Montgomery Precinct from holding an election until three years after the county-wide election. After examining the pertinent law, we are compelled to agree.
Section 61 of Kentucky's Constitution confers upon the General Assembly the authority to determine policy and to draft laws regulating alcohol. Kentucky Revised Statute[s] (KRS) 242.030 sets forth the requirements for a local option election. It mandates that "[n]o local option election shall be held in the same territory more than once in every three (3) years." KRS 242.030(5). As Grow Trigg acknowledges, the courts have already addressed this situation in which an individual precinct held an election less than three years after a county-wide election. Campbell v. Brewer, 884 S.W.2d 638 (Ky. 1994). In the case before us, the trial court based its findings and ruling on the holding of Campbell.
In Campbell, Wolfe County had voted to abolish prohibition. Within three months, all sixteen precincts in the county filed petitions to hold individual elections. By a 4-3 vote, Supreme Court held that the elections were permissible, reasoning that a county and a precinct are separately distinct entities; thus, the bar against a new election did not apply. It relied on the premise that the results of an election held in a precinct would only apply to that precinct — not to the entire county.
Grow Trigg urges us to disregard Campbell and to treat its case as one of first impression. Grow Trigg argues that the General Assembly directly responded to Campbell by amending the pertinent statutes — thus invalidating Campbell.
At the time that Campbell was decided in 1994, the statute that provided definitions for Chapter 242 was KRS 242.010. It defined territory as a "county, city, district, or precinct." In 1998, the General Assembly amended the statutes by repealing KRS 242.010 and incorporating the definitions enumerated by KRS 241.010. The current statute does not include a definition for territory. Grow Trigg contends that the legislature purposely deleted that definition so that precincts would not be considered territories. Thus, it contends that Campbell no longer applies.
Grow Trigg construes the Campbell decision as having been premised on the statutory definition of territory. However, Campbell focused on the definition of the phrase same or identical territory, with an emphasis on what was meant by the words same and identical — not what comprised a territory. As noted above, the Court's narrow majority held that a precinct was not the same territory as a county. Again, the statutory definition in effect at that time subdivided territory into four geographic possibilities: "county, city, district, or, precinct." (Emphasis added.)
Grow Trigg has relied upon the statutory changes in 1998 as evidence of legislative intent to alter the scope and impact of Campbell. We have reviewed the legislative history that was contemporaneous with the amendments, and we are not wholly persuaded that they were motivated by a desire to modify the rule of Campbell. The changes at issue were actually a small part of a sweeping overhaul and revision of alcohol control laws which had not been evaluated in nearly fifty years. Campbell was not referenced in the legislative history.
Furthermore, the General Assembly did not eliminate all statutory references of a precinct as a territory. KRS 241.010(22) defines a dry territory as "a county, city, district, or precinct in which a majority of voters have voted in favor of prohibition[.]" (Emphasis added). Other statutes also refer to precincts synonymously as territories. See KRS 242.1292; KRS 242.1297. We also note the language of KRS 242.123, which allows local option elections in precincts that include golf courses.
Nonetheless, despite the mixed juxtaposition in several statutes of precinct and territory, we are compelled to analyze with particularity the language of the current version of KRS 241.010 as amended after the Campbell decision. It is a fact that the statute bears no narrow definition of territory and that it does not enumerate or set forth divisions or subdivisions of territory. As amended, therefore, KRS 241.030 dictates a three-year prohibition for holding a local option election in the same territory — a more expansive geographic concept that does not recognize lesser geographic units as part of the composition of the county for purposes of the prohibition. The language is clear on its face in not limiting territory to any subdivision.
We construe the omission of specific limitations to be a deliberate exclusion of the former statutory limitations — including that of precinct. Campbell relied on the existence of precinct in the former statutory definition of territory as constituting an exception to a broader construction of territory. Since the legislature was aware of Campbell and deliberately omitted the limiting language referencing precinct when it re-enacted KRS 241.010, we are persuaded that Campbell no longer applies and that the new statutory language results in a county-wide, three-year limit for holding local option elections. To hold otherwise would produce an absurd result, and we are bound to construe statutes so as to avoid an absurd outcome. Revenue Cab. v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005).
Although the trial court logically invoked Campbell in its analysis, we hold that Campbell has been superseded by the 1998 legislative amendment to KRS 241.010. Since no local option election can be held for three years in the same overall territory — precincts notwithstanding, we reverse the judgment of the Trigg Circuit Court.
ALL CONCUR.