Metzger v. Summe, 2012-CA-001622-MR

PAUL METZGER; JUDTIH TOEBBEN;DIANE ST. ONGE; MARY KIMBERLIE BESSLER;ROSEANN ARLINGHAUS CROXSON;WILLIAM TERWORT; AND THE HOME BUILDERS ASSOCIATIONOF NORTHERN KENTUCKY, INC. APPELLANTS v. GABRIELLE SUMME, KENTON COUNTY CLERK;AND KENTON COUNTY FISCAL COURT APPELLEES

NO. 2012-CA-001622-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: SEPTEMBER 13, 2013

NOT TO BE PUBLISHED

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE GREGORY M. BARTLETT, JUDGE

ACTION NO. 11-CI-02355

OPINION

AFFIRMING

BEFORE: CAPERTON, DIXON, AND STUMBO, JUDGES.

CAPERTON, JUDGE: Appellants appeal the trial court's summary judgment order entered in favor of Appellees, the Kenton County Fiscal Court and Gabrielle Summe, the Kenton County Clerk. At issue before the trial court was whether the Appellants had provided sufficient signatures on a petition to dissolve the Northern Kentucky Area Planning Commission ("NKAPC") in accordance with Kentucky Revised Statutes (KRS) 147.620(4) through a referendum to be placed on the November 2011 ballot. Summe had concluded that the petition did not meet the requirements established by KRS 147.620(4); thus, the matter was never placed on the ballot. The trial court concluded Summe and the fiscal court were entitled to summary judgment based on KRS 147.620(4), to which Appellants disagree. After a thorough review of the record, the parties' arguments, and the applicable law, we affirm.

This case arises from the efforts to dissolve the Northern Kentucky Area Planning Commission in accordance with KRS 147.620(4). Per this statute, a petition was circulated and presented to the Kenton County Clerk, Gabrielle Summe, on August 8, 2011. In order to sign the petition, the voter had to print his or her name, date, provide a signature, and address. The petition sought to have Summe place a referendum on the November 2011 ballot. Summe declined to do so and the Appellants filed suit on September 8, 2011, for declaratory and injunctive relief. The complaint sought to have the trial court order Summe to verify the validity of the signatures on the petition.¹

On October 31, 2011, Summe and the Kenton County Fiscal Court filed their initial motion for summary judgment. After a hearing, the trial court denied the initial motion for summary judgment on February 6, 2012. The order directed Summe to reconsider the petition as Summe had acknowledged to the court that some errors had been made in the original validation and count of the signatures.² Summe was ordered to report to the court the results of her reconsideration.

In the February 6, 2012, order the trial court noted that KRS 147.620 requires that the petition be signed by at least 25% of the number of registered voters who voted in the last presidential election in order for the referendum to be placed on the ballot. Summe determined that the required number of signatures was 17,491.³ The court noted that the statute additionally requires that the signatures on the petition be dated, with the last no later than 90 days after the first. However, KRS 147.620(4) does not prescribe a method to be used by the clerk in determining the validity of the signatures on the petition, only that the petition is in proper order. The court thus did not prescribe any specific manner by which Summe was to review her tally of the signatures on the petition.

On June 22, 2012, Summe filed her report with the court detailing the findings and results of the petition review and reconsideration. In this report Summe declared that yet again the petition failed to include the required number of valid signatures, for two reasons. First, she found that only 14 signatures were dated within 90 days of the first. Summe found that the earliest signature was dated February 5, 2011, and the majority of the signatures were dated between May 10, 2011, and August 8, 2011. Second, even if all of the signatures were included, the petition only contained 15,098 valid signatures of registered Kenton County voters.

Appellants argued before the trial court that this conclusion was in error as Summe was arbitrarily requiring that the signature had to have a matching Kenton County address between the petition and the voter registry and did not take into account the possibility that a voter could move within the county and not have a matching address between the voter registry and the address listed on the petition but would still be a Kenton County voter. Summe highlighted these entries pink on the petition.⁴ On July 3, 2012, a hearing was held before the trial court regarding Summe's report. Appellants were given the opportunity to question Summe regarding the second review of the petition. Thereafter, both parties filed motions for summary judgment.

The trial court in its August 30, 2012, order granting summary judgment to Summe and the Kenton County Fiscal Court concluded that theprovisions of KRS 147.620 were clear, plain, and unambiguous, that persons signing the petition must be registered voters living in the areas of the planning commission territory and that the signatures shall be dated, the last no later than 90 days after the first. Summe found that only 14 signatures were within the 90-day window from the first date. The court disagreed with the position argued by the Appellants that the 90-day window in the statute was directory and not mandatory. Instead, the court agreed with Summe that the number of valid signatures within the time frame fell short of the requirement of the statute and thus the clerk was correct that the petition failed.

The court then discussed Summe's second reason for the petition failing to meet the requirements of KRS 147.620 - the petition failed to contain 25% of the registered voters from the 2008 presidential election. Appellants contested Summe's methodology in determining the validity of the signatures on the petition. Appellants argued before the trial court that the petition contained more than enough valid signatures to have the issue placed on the ballot. The trial court, in reliance upon Howell, infra, concluded that as the statute did not proscribe the method Summe was to undertake, it was not for the court to mandate a method either:

As stated in 18 Am.Jur., Elections, sec. 102, p. 244: 'There is no presumption that the signers of a petition are qualified electors, and in the absence of any provision of law to the contrary, the duty of determining whether a petition presented is in accordance with the requirements of law falls upon the officers to whom it is presented and who are to call the election.'

Howell v. Wilson, 371 S.W.2d 627, 630 (Ky. 1963).

Thus, the court concluded that to order Summe to undertake a different methodology would violate the separation of powers doctrine. The court also concluded that Summe's interpretation of the statute was entitled to deference, just as an administrative agency is entitled to deference in its interpretation of statutes it is charged with implementing. The court noted that in such a review, the judiciary intervenes when the executive or legislative branch of government acts in an arbitrary manner. The court was of the opinion that Summe's methodology in reviewing the petition was not discriminatory or arbitrary. On two occasions, Summe and her staff performed a lengthy and thorough examination of the petition and the Appellants failed to establish that the review was conducted in an arbitrary or discriminatory manner. Thus, the court granted Summe and the Kenton County Fiscal Court's motion for summary judgment and denied the Appellants' competing motion for summary judgment. It is from this order that Appellants now appeal. Further facts will be discussed as warranted.

On appeal, Appellants argue: (1) Summe applied the wrong standard in reviewing KRS 147.620(4); (2) Summe violated Section 2 of the Kentucky Constitution by excluding all of the pink entries and rejecting the entire petition based on a few wrong dates. In support of this second argument Appellants additionally argue: (1) Summe violated Section 2 by adding a "matching address" requirement to the statute; and (2) Summe violated Section 2 by adjudicating pinkentries as being individuals who are not registered to vote in Kenton County. Finally, as their third basis for appeal, Appellants assert that the trial court erred by denying Appellants the right to conduct discovery.

In response, the Appellees argue: (1) KRS 147.620 charges the county clerk with the task of verifying and validating the petition and the clerk acted consistently with the statutory authority conferred to her office and, thus, the judiciary must defer to and uphold her process and decision; (2) the clerk did not apply the wrong standard in reviewing KRS 147.620; (3) Appellants cannot pursue a private cause of action against the clerk for a violation of Section 2 of the Kentucky Constitution;⁵ (4) assuming arguendo that Appellants can bring a claim under Section 2, the court's judgment should nevertheless be affirmed because the clerk's actions were not arbitrary; (5) the court correctly found that Appellants failed to meet the 90-day requirement under KRS 147.620; and (6) the court did not err in holding discovery in abeyance.

We believe that the numerous arguments may be condensed into two issues: (1) whether the trial court properly granted summary judgment, which necessarily requires an analysis of KRS 147.620, and whether Summe's refusal to certify the petition to the fiscal court was arbitrary and unreasonable in accordance with Section 2 of the Kentucky Constitution; and (2) whether the trial court erredin holding discovery in abeyance. With these arguments in mind we turn to our applicable jurisprudence.

At the outset we note that the applicable standard of review on appeal of a summary judgment is, "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, ...