GROW TRIGG, INC. VS. TRIGG COUNTY/ JUDGE EXECUTIVE, ET AL.
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RENDERED: MAY 13, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000269-MR
GROW TRIGG, INC.
v.
APPELLANT
APPEAL FROM TRIGG CIRCUIT COURT
HONORABLE C.A. WOODALL, III, JUDGE
ACTION NO. 09-CI-00258
TRIGG COUNTY/ JUDGE EXECUTIVE;
TRIGG COUNTY CLERK; TRIGG COUNTY
FISCAL COURT; TRIGG COUNTY BOARD
OF ELECTIONS; and ROY D. EZELL, as
Representative for ELECTION PETITIONERS
IN MONTGOMERY PRECINCT
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE: COMBS, THOMPSON, AND VANMETER, JUDGES.
COMBS, JUDGE:
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
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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.
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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
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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
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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 countywide, 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.
BRIEF FOR APPELLANT:
W.E. Rogers, III
Hopkinsville, Kentucky
BRIEF FOR APPELLEE EZELL as
Representative for PETITIONERS IN
MONTGOMERY PRECINCT:
Donald E. Thomas
Benton, Kentucky
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