COUNTY FISCAL COURTS VS. COMMONWEALTH OF KENTUCKY, JUSTICE AND PUBLIC SAFETY CABINET, , ET AL.
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RENDERED: AUGUST 27, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001710-MR
COUNTY FISCAL COURTS
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 08-CI-01851
COMMONWEALTH OF KENTUCKY,
JUSTICE AND PUBLIC SAFETY CABINET,
KENTUCKY DEPARTMENT OF
CORRECTIONS; AND COMMONWEALTH
OF KENTUCKY, FINANCE AND
ADMINISTRATION CABINET
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND LAMBERT, JUDGES; HENRY,1 SENIOR JUDGE.
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
HENRY, SENIOR JUDGE: The County Fiscal Courts appeal from the dismissal
of their declaratory judgment action (see KRS chapter 418), whereby they sought a
declaration from the Franklin Circuit Court making the Commonwealth
responsible for payment of the cost of housing prisoners who are in county jails
and unable to obtain pretrial release from the time they are arrested on felony
charges until they are convicted of a felony and sentenced. The circuit court
granted the Commonwealth’s motion to dismiss pursuant to Kentucky Rules of
Civil Procedure (CR) 12.02 for failure to state a claim for which the requested
relief may be granted. After our review, we affirm the judgment of the Franklin
Circuit Court.
The County Fiscal Courts filed this action on November 7, 2008
against the Kentucky Department of Corrections and the Kentucky Finance and
Administration Cabinet. An amended complaint was filed on December 30, 2008.
The Finance and Administration Cabinet and the Department of Corrections then
filed a motion to dismiss the entire five count complaint on February 4, 2009. The
County Fiscal Courts agreed to the dismissal of Counts III, IV and V, leaving only
Counts I and II of the complaint at issue. The essence of Count I was:
Because KRS 532.120(3) states that time in county
custody is “considered for all purposes” as time spent in
state custody, an inmate’s time in county custody as a
state prisoner should be treated as the state’s financial
obligation, and the Commonwealth should be required to
reimburse the counties for fees incurred for housing such
convicts.
Count II specified:
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The application of KRS 441.025(1), KRS 431.215(2) and
KRS 532.120(3) contravenes the mandates of § 254 of
the Kentucky Constitution which places the
responsibility for inmate upkeep on the Commonwealth,
and relies upon designations and distinctions that have no
rational or reasonable basis or purpose and are therefore
arbitrary and capricious in violation of Section II of the
Kentucky Constitution as well as other federal and state
laws.
KRS 441.025(1) requires counties to provide a facility to house
people arrested, sentenced or ordered to be held by any court in the county. The
Commonwealth is required to pay the counties for housing a convicted felon
pursuant to KRS 431.215(2) beginning the day after the prisoner is sentenced to
serve time in a state penal facility until such time as the prisoner is actually
delivered to the state facility.
KRS 532.120(3), which is part of the penal code, deals with the
amount of credit given for time served in a county facility prior to conviction
against the total sentence ordered served in a state facility. That statute specifically
requires that “the time spent in custody prior to the commencement of the sentence
shall be considered for all purposes as time served in prison.” KRS 532.120(3)
(emphasis added). The inclusion of the phrase “for all purposes” in the statute
engendered this lawsuit.
The Commonwealth interprets KRS 431.215(2) to require that
counties are to be paid only when a prisoner has been sentenced and then remains
in custody of the county for more than an additional day. After a person is arrested
and charged with a felony, it is not uncommon for many months to pass before
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conviction and final sentencing. The counties argue they should be paid
retroactively for the entire time the prisoner is housed in a county facility. The
counties rely on the language of KRS 532.120(3) stating that the time spent in
custody prior to sentencing shall be considered “for all purposes” as time spent in
prison.
Practically the same question at issue here was raised fourteen years
ago in Kentucky County Judge/Executive Ass’n Inc. v. Commonwealth, 938 S.W.2d
582 (Ky. App. 1996). The Association and five counties joined in an action
seeking to require the Commonwealth to pay the expenses of housing prisoners in
county jails prior to their transfer to state custody. The version of KRS 431.215(2)
in effect at that time allowed the Commonwealth a five-day grace period before its
obligation to pay for the housing of a state prisoner in a county facility
commenced. In that case we found that “the word ‘convict’ as used in Ky. Const.
§ 254, refers to one who has been found guilty . . . of a felony . . . and has been
sentenced to serve time in a state penal institution.” Id. at 586. We additionally
held that KRS 431.215(2) was “unconstitutional . . . to the extent that it allow[ed]
the Commonwealth to delay reimbursement to county jails for five days after the
entry of judgment.” Id.
In the current matter, the original five counties from the first case
were joined by the remaining 115 counties in the Commonwealth under the aegis
of the County Fiscal Courts. The Commonwealth sought dismissal on the basis of
res judicata. Although the argument may be well taken, the trial court declined to
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address the issue as one of res judicata. We will not review an issue that has not
been decided by the trial court. Regional Jail Authority v. Tackett, 770 S.W.2d
225, 228 (Ky. 1989).
Instead, the trial court determined that “res judicata analysis is not
necessary in ruling on the issues in this action. A plain reading of the statutes and
constitutional provisions involved will suffice.” We agree.
“[W]here statutes seemingly conflict, it is the duty of the courts to
harmonize them and give such construction as will permit both to stand, if such
construction can reasonably be given.” General Motors Acceptance Corp. v.
Shuey, 47 S.W.2d 968, 970 (Ky. 1932).
Kentucky Constitution § 254 states:
The Commonwealth shall maintain control of the
discipline, and provide for supplies, and for the sanitary
condition of the convicts, and the labor only of convicts
may be leased.
The Kentucky Supreme Court interpreted that provision and defined
“convicts” as “persons convicted of felonies and sentenced to confinement in the
penitentiary[.]” Campbell County v. Commonwealth, Kentucky Corrections
Cabinet, 762 S.W.2d 6, 7 (Ky. 1988), citing Briskman v. Central State Hospital,
264 S.W.2d 270, 271 (Ky. 1954). We later held a “convict” is “one who is
convicted and sentenced to a state facility for a felony.” Kentucky County
Judge/Executive Ass’n at 584 (emphasis in original).
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KRS 532.120(3) provides:
[t]ime spent in custody prior to the commencement of a
sentence as a result of the charge that culminated in the
sentence shall be credited by the court imposing sentence
toward service of the maximum term of imprisonment. If
the sentence is to an indeterminate term of imprisonment,
the time spent in custody prior to the commencement of
the sentence shall be considered for all purposes as time
served in prison.
The County Fiscal Courts place a great deal of emphasis on the phrase
“for all purposes” in this statute to support their argument. They contend that
payment from the state for housing convicts is one of the contemplated “purposes”
and such payment should therefore begin from the time a prisoner is initially in
custody. Such an interpretation, however, would amount to a substantial de facto
amendment, if not an outright repeal by implication, of KRS 431.215(2). That
statute provides:
When the judgment imposes a sentence of death or
confinement in the penitentiary, the County in which the
prisoner is incarcerated shall receive from the State
Treasury a fee per day . . . ending the day the defendant
is delivered to the penitentiary. The fee shall be paid to
the county treasurer for use for the incarceration of
prisoners as provided in KRS 441.025.
KRS 431.215(2) (emphasis added). Repeal by implication is disfavored in the law;
it is presumed that the legislature, being aware of the state of the law, will repeal
all or part of an existing statute with a subsequent one only in the clearest of terms.
Galloway v. Fletcher, 241 S.W.3d 819, 823-24 (Ky. App. 2007).
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The clause of KRS 532.120(3) that specifies “for all purposes” is
contained in the portion of the Kentucky Penal Code entitled “Calculation of
Terms of Imprisonment.” The subject matter is clearly the calculations used to
determine the length of any sentence imposed upon a prisoner. It has nothing to do
with the financial aspects of housing prisoners. When KRS 532.120(3) is read so
as to apply only to the penal code, there is no conflict with the other statutes or the
provisions of §254 of the Kentucky Constitution.
KRS 441.025 requires the county to pay the costs of housing prisoners
until they are sentenced. KRS 431.215 then requires the Commonwealth to pay the
county for housing a prisoner once that prisoner is sentenced, that is, becomes a
“convict” as defined in the cases and before that prisoner is placed in the custody
of the state. KRS 532.120 applies only to the calculation of the duration of a
sentence imposed upon a prisoner and nothing more. This interpretation is in
harmony with the constitution and allows the statutes to co-exist without conflict.
The statutes and cases, when read together, point inescapably to the conclusion that
the Commonwealth becomes financially responsible for the costs of housing
prisoners in county jails only after they have been convicted and sentenced for a
felony.
While we are convinced that the law overwhelmingly compels us to
affirm the decision of the trial court, we are not unsympathetic to the plight of the
Fiscal Courts, which are burdened with often staggering expenses of housing
prisoners whose state sentences sometimes are substantially or even wholly served
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in financially overburdened county jails, as when a prisoner convicted of a felony
is sentenced only to “time served.” While we appreciate the hardship thus imposed
on county jails and county governments, our role in this case is merely to
determine whether or not the trial court decided correctly according to the law.
Dismissal pursuant to CR 12.02 is appropriate when “the pleading party appears
not to be entitled to relief under any state of facts which could be proved in support
of the claim.” Weller v. McCauley, 383 S.W.2d 356, 357 (Ky. 1964). Agreeing
with the trial court’s interpretation of the pertinent statutes, we find that to be the
case here.
The judgment of the Franklin Circuit Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
Brent L. Caldwell
Lexington, Kentucky
BRIEF FOR APPELLEES:
Scott White
Taylor M. Hamilton
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLEES:
Scott White
Lexington, Kentucky
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