Rogers v. Lexington-Fayette Urban County Government

Dissenting opinion by

Justice JOHNSTONE.

Respectfully, I dissent from the Majority’s Opinion and Order granting CR 65.09 relief to Appellants. In my opinion, Appellants have failed to demonstrate “extraordinary cause” justifying such relief. In the seminal case, Maupin v. Stansbury, 575 S.W.2d 695, 699 (Ky.App.1978), the Court of Appeals held:

[Applications for temporary injunctive relief should be viewed on three levels. First, the trial court should determine whether plaintiff has complied with CR 65.04 by showing irreparable injury. This is a mandatory prerequisite to the issuance of any injunction. Secondly, the trial court should weigh the various equities involved. Although not an exclusive list, the court should consider such things as possible detriment to the public interest, harm to the defendant, and whether the injunction will merely preserve the status quo. Finally, the complaint should be evaluated to see whether a substantial question has been presented. If the party requesting relief has shown a probability of irreparable injury, presented a substantial question as to the merits, and the equities are in favor of issuance, the temporary injunction should be awarded. However, the actual overall merits of the case are not to be addressed in CR 65.04 motions. Unless a trial court has abused its discretion in applying the above standard, we will not set aside its decision on a CR 65.07 review.

The deferential standard under which appellate courts review circuit court determinations as to injunctive relief only heightens the importance of sound decision making at the circuit court level. Under CR 65.04, the Court of Appeals may reverse such a determination only where it appears that the circuit court has made clearly erroneous findings unsupported by substantial evidence. See National Collegiate Athletic Association v. Lasege, 53 S.W.3d 77 (Ky.2001). Interlocutory relief in this Court is appropriate only where we find that it is warranted by “extraordinary cause.”

*573I would agree that Appellants have raised substantial questions regarding the timing of the election and the validity of the initiative process. Nonetheless, I cannot conclude that Appellants have shown irreparable injury if the election is held on November 8, 2005.

Appellants assert, and the Majority apparently agrees, that the expenditure of public funds to proceed with the election constitutes an irreparable injury that outweighs the voters’ right to be heard on the issue this November. I find this proposition to be fatally flawed. A party asserting a loss of monetary funds as evidence of irreparable harm is generally the party expending those funds. Here, although there certainly is a monetary cost involved in preparing for the election, the funds necessarily come from the Lexington-Fay-ette Urban County Government’s budget, not from Appellants. Notably, Lexington-Fayette Urban County Government does not object to the expenditure of these monies; indeed, the Government supports the County Clerk’s use of the designated funds for election preparation.

Moreover, the Majority fails to cite any authority, and we find none, for distinguishing the expenditure of public versus private monies. Our law is clear that the financial distress of a party does not warrant extraordinary relief. In Ison v. Bradley, 383 S.W.2d 784, 786 (Ky.1960), our predecessor court held:

By this proceeding, petitioners are attempting a premature appeal and seeking a precipitate decision of this Court on an interlocutory order. It takes a minimum of imagination to envision the utter confusion and chaos in the trial of cases if this Court should entertain original proceedings in cases of this character. The basis urged for doing so is the financial distress of litigants. This is not an uncommon status, however unwanted it may be, and is not confined to litigants. Thus, the delay incident to litigation and appeal by litigants who may be financially distressed cannot be considered as unjust, does not constitute irreparable injury, and is not a miscarriage of justice.

In fact, in Maupin v. Stansbwry, supra, this Court found that an injunction prohibiting the Louisville Board of Aldermen from expending public finds in furtherance of an investigation of the mayor was improper, because there was no evidence as to how the expenditures would irreparably harm the party who obtained the injunction. “At the most, the complaint create[d] only a speculation of possible harm to the taxpayers as a group. There being no clear showing of irreparable injury ... the temporary injunction [was] improper.” Id. at 700. Here, neither Appellants nor the Majority can point to any tangible injury that Appellants will suffer as a result of this use of public monies. Certainly, if Appellants won at the polls, they could allege no injury despite the election having taken place against their wishes. Nonetheless, I believe that the expenditure of a miniscule percentage of the Lexington-Fayette Urban County Government’s budget, in and of itself, falls far short of demonstrating irreparable injury.

Furthermore, Appellants herein are not “seeking to maintain the status quo,” but are “requesting mandatory relief which would require [Appellees] to change [their] course of conduct.” Oscar Ewing, Inc. v. Melton, 309 S.W.2d 760, 761 (Ky.1958). To maintain the status quo, the County Clerk must be permitted to continue with the current course of conduct in preparing for the election. Clearly, a balancing of the equities of the parties herein favors allowing the election process to go forward as determined by the Fayette Circuit Court and Court of Appeals.

*574The most troubling aspect of the Majority’s opinion is that it undertakes to decide the merits of the appeals below, notwithstanding the fact that this Court has previously denied transfer of those same appeals. Without question, deciding the merits of the parties’ conflicting claims is inappropriate in reviewing a request for a temporary injunction. Maupin v. Stans-bury, supra.

To permit the expenditure of public monies to form the basis of a taxpayer’s claim for extraordinary relief vastly broadens this Court’s prior notion of irreparable harm. Given the saturation of public monies in nearly every aspect of today’s society, the extent of interlocutory litigation involving taxpayer monies will be virtually unlimited. Both the Fayette Circuit Court and the Court of Appeals denied Appellants’ motion for extraordinary relief. As did the Court of Appeals, I would give due deference to the findings of the circuit court and also deny the requested relief.

GRAVES, J., joins in this dissent.