DAVIESS COUNTY PUBLIC LIBRARY TAXING DISTRICT v. GARY M. BOSWELL; WILLIAM KUEGEL; DANIEL F. EBELHAR; AND CHARLOTTE BURDETTE and J. MICHAEL LIBS, DAVIESS COUNTY CLERK v. GARY M. BOSWELL; WILLIAM KUEGEL; DANIEL F. EBELHAR; AND CHARLOTTE BURDETTE
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RENDERED:
DECEMBER 16, 2005; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002624-MR
DAVIESS COUNTY PUBLIC LIBRARY
TAXING DISTRICT
v.
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 04-CI-01291
GARY M. BOSWELL; WILLIAM KUEGEL;
DANIEL F. EBELHAR; AND
CHARLOTTE BURDETTE
AND:
NO.
APPELLEES
2005-CA-000004-MR
J. MICHAEL LIBS, DAVIESS
COUNTY CLERK
v.
APPELLANT
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 04-CI-01291
GARY M. BOSWELL; WILLIAM KUEGEL;
DANIEL F. EBELHAR; AND
CHARLOTTE BURDETTE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
BUCKINGHAM, JUDGE:
The Daviess County Public Library Taxing
District and Daviess County Clerk J. Michael Libs appeal from an
amended order and judgment of the Daviess Circuit Court
instructing Libs to accept the tax protest petitions sought to
be filed by the appellees and to follow the procedures set forth
in KRS 1 132.017.
The petitions challenged the Library’s increase
on ad valorem property taxes that would produce in excess of 4%
over the revenue produced by the compensating tax rate as
defined in KRS 132.010(6).
The appellees are taxpayers and real
property owners in the library taxing district.
The appellants argue that the petitions were not
timely filed, failed to specify “that portion” of the rate
subject to recall election, and specified an incorrect tax rate.
They ask this court to reverse and remand the circuit court
judgment with instructions that the appellees’ complaint be
dismissed and the Library’s increased tax rate be reinstated
retroactive to September 7, 2004.
We conclude the circuit court
ruled correctly, and we thus affirm.
1
Kentucky Revised Statutes.
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The Library is an independent taxing district
authorized by statute.
Beginning in April 2002, it held public
meetings to discuss the adequacy of the McCreary Avenue library
facility in Owensboro.
On July 16, 2003, it proposed a project
that would improve the facility according to state library
standards.
That project was estimated to cost $19 million and
required an ad valorem real property tax increase of 64% over
the compensating rate. 2
The Library later reduced the scope of the project so
that the revised project’s cost was $14 million.
On January 21,
2004, the Library announced the project and its cost in the
Owensboro Messenger Inquirer, which is the primary newspaper
circulated in the area.
The revised project required an ad
valorem real property tax increase of nearly 27%. 3
KRS 132.023(3)(a) states:
That portion of a tax rate levied by an
action of a tax district, other than the
state, counties, school districts, cities,
consolidated local governments, and urbancounty governments which will produce
revenue from real property, exclusive of
revenue from new property, more than four
percent (4%) over the amount of revenue
produced by the compensating tax rate
defined in KRS 132.010 shall be subject to a
recall vote or reconsideration by the taxing
2
The compensating rate was 5.6 cents per $100 of assessed property value.
The new rate would have been 9.1 cents per $100.
3
The Library set the property tax rate at 7.1 cents per $100 of assessed
property value.
-3-
district, as provided for in KRS 132.017,
and shall be advertised as provided for in
paragraph (b) of this subsection.
KRS 133.185 provides, in pertinent part, that “no tax
rate for any taxing district imposing a levy upon the county
assessment shall be determined before the assessment is
certified by the Revenue Cabinet to the county clerk[.]”
Because the Revenue Cabinet had not certified the assessment
when the Library announced the project and its cost in January
2004, the Library could not formally announce the new rate at
that time.
Between January and July 2004, numerous articles were
published about the project and the increased tax rate necessary
to fund it.
The Library held meetings to discuss the project
and the anticipated tax rate.
In early July 2004, the Library
began publishing notices that it was going to hold a public
meeting concerning the proposed tax rate.
However, the meeting
held on July 21, 2004, resulted in no action being taken because
the assessments had not yet been certified under KRS 133.185.
The Revenue Cabinet did not certify the assessment until July
29, 2004.
On July 31 and August 1, 2004, the Library published
legal notice pursuant to KRS 132.023 that a public hearing was
scheduled for August 9, 2004.
At that hearing the Library
passed the 7.1 cents per $100 rate.
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The Library published
another public notice on August 14, 2004, that announced the 7.1
cents per $100 rate had passed and that the rate would produce
over 4% more revenue than that produced by the compensating
rate.
At a press conference on September 3, 2004, the
Library announced it was planning to lower the rate because of a
reduced interest rate, deferring purchases, use of inmate labor,
and other cost reductions.
After a public meeting on September
7, 2004, notice of which was published two days prior, the
Library set the new rate at 6.6 cents per $100.
The new rate
was published in the newspaper on September 8, 2004.
On
September 11 and 12, the Library published notice of a public
hearing scheduled for September 22, 2004.
At the hearing the
Library formally adopted the 6.6 cents per $100 rate. 4
The new
rate was published in the newspaper on September 25, 2004.
That
notice informed the public that the rate would produce more than
4% over the amount of revenue produced by the compensating rate
and that the rate was subject to a recall vote.
The appellees tendered recall petitions to County
Clerk Libs on September 21, 2004.
The petitions sought
suspension of the 7.1 cents per $100 rate until it could be
placed on the ballot and submitted to the voters.
4
The appellees
The new rate was 1.0 cent higher than the previous year’s rate and
constituted an 18% increase.
-5-
believed they had met the requirements of the statute by
gathering the signatures of at least 10% of the voters who
participated in the last presidential election.
Citing KRS 118.365(7), Libs refused to accept the
petitions.
He claimed that pursuant to the statute the
petitions had to be delivered to him by the second Tuesday in
August, which was August 10, 2004.
Since the petitions were
delivered to him on September 21, 2004, Libs claimed he could
not accept them or place them on the ballot during the November
2, 2004 regular election.
The petitions made no mention of either the 4%
requirement or “that portion” of the rate that was greater than
4% more revenue than the previous year’s rate.
132.023(3)(a).
See KRS
Further, the petitions referred to the 7.1 cents
per $100 rate passed on August 9, 2004, not the 6.6 cents per
$100 rate passed on September 22, 2004.
On October 1, 2004, the appellees filed a civil
complaint in the Daviess Circuit Court pursuant to KRS 418.040
for a declaration of their rights under KRS 132.017 and for
injunctive relief.
The parties thereafter filed cross-motions
for summary judgment.
On December 2, 2004, the circuit court
entered an order and judgment denying the Library’s motions and
directing Libs to accept the petitions and proceed pursuant to
KRS 132.017.
-6-
The Library then filed a motion to alter, amend, or
vacate the previous order, stating that the court had omitted
reference to the 15-day provision for the Library to adjust the
tax rate under KRS 132.017(1)(b).
The court granted that motion
and entered an amended order fully reflecting the requirements
of the statute.
Separate appeals by the Library and by Libs
followed. 5
KRS Chapter 132 is entitled “Levy and Assessment of
Property Taxes.”
Prior to its 2005 amendment KRS 132.017
provided in pertinent part as follows:
(1) (a)
5
That portion of a tax rate levied by
an ordinance, order, resolution, or
motion of a county fiscal court,
district board of education, or
legislative body of a city, urbancounty government, consolidated
local government, or other taxing
district subject to recall as
provided for in KRS 68.245, 132.023,
132.027, and 160.470, shall go into
effect forty-five (45) days after
its passage. If during the fortyfive (45) days next following the
passage of the order, resolution, or
motion, a petition signed by a
number of registered and qualified
voters equal to ten percent (10%) of
the voters voting in the last
presidential election is presented
to the county clerk or his
authorized deputy protesting against
passage of the ordinance, order,
resolution, or motion, the
ordinance, order, resolution, or
motion shall be suspended from going
The two appeals have been consolidated for our review.
-7-
into effect until after the election
referred to in subsection (2) of
this section. . . . The county clerk
shall make the conclusive
determination of whether the
petition contains enough signatures
of qualified voters to suspend the
effect of the order or resolution.
(b)
(2) (a)
The county fiscal court, district
board of education, or legislative
body of a city, urban-county
government, consolidated local
government, or other taxing
district may cause the cancellation
of the election by reconsidering
the ordinance, order, resolution,
or motion and amending the
ordinance, order, resolution, or
motion to levy a tax rate which
will produce no more revenue from
real property, exclusive of revenue
from new property as defined in KRS
132.010, than four percent (4%)
over the amount of revenue produced
by the compensating tax rate
defined in KRS 132.010 from real
property. The action by the county
fiscal court, district board of
education, legislative body of a
city, urban-county government,
consolidated local government, or
other taxing district shall be
valid only if taken within fifteen
(15) days following the date of the
presentation of the petition.
If an election is necessary under
the provisions of subsection (1) of
this section, the county fiscal
court, legislative body of a city,
urban-county government,
consolidated local government, or
other taxing district shall cause to
be submitted to the voters of the
county, district, consolidated local
government, or urban-county at the
-8-
next regular election, the question
as to whether the property tax rate
shall be levied. The question shall
be submitted to the county clerk not
later than the second Tuesday in
August preceding the regular
election. The question shall be so
framed that the voter may by his
vote answer “for” or “against.” If
a majority of the votes cast upon
the question oppose its passage, the
order, resolution, or motion shall
not go into effect. If a majority
of the votes cast upon the question
favor its passage, the order,
resolution, or motion shall go into
effect.
KRS 118.365(7) states that “[P]etitions for recall elections or
elections on public questions shall be filed as required with
the county clerk not later than the second Tuesday in August
preceding the day fixed by law for holding a general election.”
The appellants allege three main errors on the part of
the circuit court.
interpretation.
law.”
2002).
Each argument involves a matter of statutory
“The interpretation of a statute is a matter of
Commonwealth v. Gaitherwright, 70 S.W.3d 411, 413 (Ky.
The construction and application of statutes is
interpreted de novo without deference to the interpretations
adopted by the lower courts.
Wheeler & Clevenger Oil Co., Inc.
v. Washburn, 127 S.W.3d 609, 612 (Ky. 2004).
“The proper standard of review of a question of law
does not require the adoption of the decision of the trial court
-9-
as to the matter of law, but does involve the interpretation of
a statute according to its plain meaning and its legislative
intent.”
Hardin County Schools v. Foster, 40 S.W.3d 865, 868
(Ky. 2001).
The appellants’ first argument is that the court erred
by ordering County Clerk Libs to accept the petitions because
Libs incorrectly applied the second Tuesday in August deadline
rather than the 45-day deadline.
In connection with this
argument, the appellants assert that the court ignored KRS
118.365(7) altogether, that the court created a non-existent
conflict within KRS 132.017, and that the court wrongly assumed
the petition efforts could only start after the passage of the
tax rate.
We will address the three sub-arguments.
Concerning the appellants’ assertion that the court
ignored KRS 118.365(7), the appellants argue that the statute
plainly provides that petitions for recall elections must be
filed not later than the second Tuesday in August preceding the
day fixed by law for holding a general election.
Since the
petitions in this case were not filed until September 21, 2004,
the appellants maintain that the petitions were not timely
tendered for filing.
While the appellants correctly read KRS
118.365(7), a statute within the chapter concerning the conduct
of elections, they overlook the specific statutory provisions
concerning recall elections involving the levy and assessment of
-10-
property taxes that are set forth in KRS 132.017.
The
provisions of that statute clearly provide that the new tax rate
shall not go into effect until after a recall election when a
petition has been filed within 45 days following the passage of
the tax.
See KRS 132.017(1)(a).
We conclude that this more
specific statute governing the levy and assessment of property
taxes controls over the general statute in KRS 118.365(7).
See
Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354, 361 (Ky. 2005).
The appellants’ second argument concerning the
timeliness of the petitions is that the court created a nonexistent conflict within KRS 132.017.
The court determined that
there was a conflict between KRS 132.017(1)(a) and KRS
132.017(2)(a).
The court noted that KRS 132.017(2)(a) requires
that the question as to whether the property tax rate shall be
levied shall be submitted by the taxing authority to the county
clerk not later than the second Tuesday in August preceding the
regular election.
The court stated that this portion of the
statute conflicted with the appellees’ right under KRS
132.017(1)(a) to submit protest petitions within 45 days after
passage of the tax rate because the rate was approved only one
day prior to the August 10 deadline for the Library to submit
the question to the clerk.
The court concluded that the only
duty imposed upon the appellants was to present their petitions
-11-
within 45 days after passage of the tax and that the appellants
had apparently complied with that requirement.
KRS 132.017(1)(a) allows 45 days following the passage
of the tax for a recall petition to be filed.
That portion of
the statute also requires the county clerk to make the
conclusive determination of whether the petition contains enough
signatures of qualified voters to suspend the effect of the tax
until an election can be held.
Id.
KRS 132.017(2)(a) provides
in part that, if an election is necessary, then the taxing
authority shall cause the question as to whether the property
tax rate shall be levied to be submitted to the county clerk not
later than the second Tuesday in August preceding the regular
election.
The tax was passed on August 9, 2004, and the second
Tuesday in August preceding the next regular election was the
following day, August 10, 2004.
The appellees had 45 days from
August 9, 2004, in which to file petitions.
Their petitions
were filed on September 21, 2004, 43 days after August 9, 2004.
Thus, the petitions were timely filed.
Once the petitions were filed, the county clerk was
required to determine whether they contained enough signatures
of qualified voters to suspend the effect of the tax until an
election could be held.
See KRS 132.017(1)(a).
Thereafter, it
was incumbent upon the taxing district (Library) to submit the
-12-
question to the county clerk not later than the second Tuesday
in August preceding the next regular election.
132.017(2)(a).
See KRS
Because that date had passed, the circuit court
correctly determined that the second Tuesday in August preceding
a regular election that will occur after the protest petitions
were presented to the clerk is August 8, 2006.
As the court
noted, the “next regular election,” as applied to the facts of
this case, is the November 2006 election.
In short, we conclude
the circuit court correctly ruled that the appellees had 45 days
following August 9, 2004, in which to file their petitions and
that the petitions were timely filed.
The appellants’ third sub-argument is that the court
wrongly assumed the petition efforts could only start after the
passage of the tax rate.
They maintain the appellees knew that
a new tax rate would be passed and that nothing stopped them
from preparing the petitions to be ready for filing on the day
after the tax was passed.
While this may be true, it overlooks
the fact that the appellees had 45 days following the passage of
the tax in which to file their petitions.
See KRS
132.017(1)(a).
The appellants’ second argument is that the petitions
were invalid on their face.
The petition form stated in
pertinent part as follows:
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Pursuant to KRS 132.017, the undersigned
protest the property tax increase passed by
the Daviess County Library Board/Daviess
County Library Taxing District on or about
August 9, 2004, whereby the tax rate was
increased to 7.1 cents per $100.00 of
assessed value. We ask that an election be
held to determine whether that property tax
rate should be levied.
The appellants correctly note that the right of recall is
limited only to that portion of the rate that produces 4% more
revenue than the previous year’s rate.
They argue that the
recall petitions here identified the entire rate of 7.1 cents
per $100 and did not identify the fact that the recall was only
limited to “that portion” of the rate over 4%.
See KRS
132.023(3)(a).
KRS 132.017 places few specific requirements on the
form of the petition.
It requires only that the petition
protest “against passage of the ordinance, order, resolution, or
motion” that increased the tax rate.
Here, the appellees
specified the taxing authority and the tax increase passed by
that authority.
We conclude the petition was not invalid on its
face even though it did not specify “that portion” of the rate
subject to recall.
The appellants’ final argument is that the recall
petitions were defective and moot because they identified the
old rate of 7.1 cents per $100 rather than the amended rate of
6.6 cents per $100.
They argue that once the Library changed
-14-
the rate, the appellees’ petition became moot.
The circuit
court ruled that the petitions were not rendered moot by the
lowering of the rate because “such an interpretation would lead
to absurd results with one tax levy followed by a protest
petition, a second tax levy with yet another protest petition,
etcetera.”
We agree.
To accept the appellants’ argument would allow taxing
districts to evade recall elections by chicanery.
Such would
defeat legislative intent to allow citizen challenges to tax
increases of this nature.
“All statutes of this state shall be
liberally construed with a view to promote their objects and
carry out the intent of the legislature[.]”
Unless directed
otherwise, courts interpret election statutes liberally in favor
of citizens whose right to vote they tend to restrict.
See
Queenan v. Mimms, 283 S.W.2d 380, 382 (Ky. 1955), and Greene v.
Slusher, 300 Ky. 715, 722, 190 S.W.2d 29, 33 (1945).
Thus, we
agree with the court that the petitions complied with the
statute and did not become moot when the Library lowered its
rate to 6.6 cents per $100.
The judgment of the Daviess Circuit Court is affirmed.
ALL CONCUR.
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT/DAVIESS COUNTY
PUBLIC LIBRARY TAXING
DISTRICT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES:
Steven S. Crone
Owensboro, Kentucky
Allen W. Holbrook
Owensboro, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLANT/DAVIESS COUNTY
CLERK, J. MICHAEL LIBS:
Robert M. Kirtley
Owensboro, Kentucky
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