RENDERED: JANUARY 21, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1577-MR
JOHN K. CARTER APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
v. HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 17-CI-00495
OLDHAM COUNTY EXTENSION
DISTRICT; JUDGE EXECUTIVE
DAVID VOEGELE; OLDHAM
COUNTY EXTENSION BOARD;
AND OLDHAM COUNTY,
KENTUCKY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.
CETRULO, JUDGE: John K. Carter appeals from two orders of the Oldham
Circuit Court granting summary judgment in favor of appellees Oldham County
Extension District and Oldham County Extension Board (collectively “the
Extension District”); David Voegele, Oldham County Judge Executive (“Judge
Voegele”); and Oldham County. We affirm.
The underlying facts of this matter were previously summarized, in
part, by this Court as follows:
In July of 2017, Julie Barr, the Oldham County
Clerk, received a tax rate sheet from [the Extension
District] which sought to levy a tax on real property,
tangible personal property, watercraft, and motor
vehicles. Prior to this date, [the Extension District] had
never levied a tax. [The Extension District] had
previously been funded through the general county taxes
levied by the fiscal court.
Following the receipt of the tax rate sheet, Barr
contacted [Carter] and [Judge Voegele]. Barr asked for
instructions on how to proceed as it was her duty to
prepare the county tax bills. [Carter] believed that the
Extension District was not a taxing district and could not
levy its own taxes. [Judge Voegele] informed Barr that
he believed the tax was legal and should be included on
the tax bills. On August 9, 2017, and in response to this
conflicting information, Barr filed a petition for
declaration of rights seeking guidance from the circuit
court. [Carter], in his official capacity, and all Appellees
were named in the action.
On August 11, 2017, [the Extension District] filed
[its] answer and sought a declaratory judgment in its
favor. [The Extension District] also sought a writ of
mandamus compelling Barr to include the new tax on the
tax bills. On August 29, 2017, [Carter], in his official
capacity answered the petition. [Carter] also moved to be
allowed to proceed individually.
On September 15, 2017, the [circuit] court entered
an order which directed Barr to include the tax on the tax
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bills. The court found that her job was to only list the
taxes presented to her on the tax bills. The court further
found that she had no duty to contest the legality of the
tax, and that this could only be done by an individual
taxpayer once the tax has been levied. The court also
dismissed [Carter], in his official capacity, from the
action because it held that he was not representing the
county as an entity. The court believed [Carter] was
representing dissenting individual taxpayers, which is not
within the mandate of a county attorney. Finally, the
court reserved [Carter’s] request to be joined to the action
in his individual capacity until after the tax bills have
been issued. The court stated:
Upon issuance of the tax bill by the Sheriff’s
Department, the Court shall entertain the
issue of taxpayer challenges to the Extension
District tax. The Court will then grant Mr.
Carter’s motion, as an individual taxpayer,
to intervene, and shall schedule a hearing
regarding the legality of the tax. The
declaratory judgment action shall remain on
the docket.
Once the tax bills were issued, [Carter] filed a
motion to intervene in his individual capacity as a
resident and taxpayer of Oldham County. [Carter] again
sought to challenge the validity of the tax. The Extension
District objected to the motion. The Extension District
argued that [Carter] had a conflict of interest in the case
because his interests were adverse to those of his client,
Oldham County.
On April 2, 2018, the trial court entered an order
which denied [Carter’s] motion to intervene. The court
held that [Carter’s] individual interests conflicted with
those of Oldham County and the Oldham County Fiscal
Court, and that it would be improper to allow [Carter] to
proceed due to this conflict of interest.
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Carter v. Oldham County Extension Dist., No. 2018-CA-000655-MR, 2019 WL
3246490, at *1-2 (Ky. App. Jul. 19, 2019) (footnotes omitted).
This Court affirmed the judgment of the circuit court as to Carter’s
ability to pursue this action in his official capacity. However, this Court reversed
and remanded as to Carter’s ability to pursue this action in his individual capacity
and held that Carter, individually, should be permitted to intervene. On remand, all
parties filed motions for summary judgment. After extensive briefing and oral
arguments, the circuit court granted summary judgment in favor of the Extension
District, Judge Voegele, and Oldham County. Carter’s motion for summary
judgment was denied. This appeal followed.
At the outset, in this appeal, the Extension District requests we strike
Carter’s brief, or alternatively, review for manifest injustice only. Carter argues
his appellant brief fully complied with CR1 76.12 both in letter and spirit. As the
proper interpretation of statutes is an issue of law, the Court of Appeals’ review is
generally de novo. Clark County Att’y v. Thompson, 617 S.W.3d 427 (Ky. App.
2021). However, the Kentucky Supreme Court recently clarified what options are
available when appellate counsel fails to follow the mandates of CR 76.12,
pointing out that the review of unpreserved claims of error on direct appeal shall be
1
Kentucky Rule of Civil Procedure.
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only for palpable error. Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021).
To prevail, one must show that the error resulted in “manifest injustice.” Id.
We have elected to review this matter de novo, although our result
would be the same if we considered it only for manifest injustice. We find that the
briefs and the record provide sufficient basis for this Court to address the merits of
the claim asserted herein, which is essentially a dispute over the proper application
of a statute that is no longer the law.
We begin our review by noting Carter does not dispute that the
Extension District is a special purpose government entity (“SPGE”), defined in
KRS2 65A.010(9) as
(a) “Special purpose governmental entity” or “entity”
means any agency, authority, or entity created or
authorized by statute which:
1. Exercises less than statewide jurisdiction;
2. Exists for the purpose of providing one
(1) or a limited number of services or
functions;
3. Is governed by a board, council,
commission, committee, authority, or
corporation with policy-making authority
that is separate from the state and the
governing body of the city, county, or cities
and counties in which it operates; and
2
Kentucky Revised Statute.
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4. a. Has the independent authority to
generate public funds; or
b. May receive and expend public
funds, grants, awards, or appropriations
from the state, from any agency, or
authority of the state, from a city or
county, or from any other special
purpose governmental entity.
The statute goes on to list agricultural extension services as an
example of a SPGE. KRS 65A.010(9)(c)15.
In granting summary judgment in favor of the Extension District, the
circuit court looked to KRS 65A.100. Although repealed effective January 1,
2021, the statute was in effect at the time the Extension District levied the tax in
2017, and provided, in relevant part,
(1) Beginning January 1, 2014, the provisions of this
section shall apply to any fee or ad valorem tax levied by
a [SPGE] that is otherwise not required by statute or
ordinance to be adopted or approved through an official
act of an establishing entity.
(2) Except as provided in subsection (4) of this section,
any [SPGE] that:
(a) 1. Adopts a new fee or ad valorem tax;
2. Increases the rate at which an existing
fee or tax, other than an ad valorem tax, is
imposed; or
3. Adopts an ad valorem tax rate; shall
report the fee or tax to the governing body
of the establishing entity in which the largest
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number of citizens served by the [SPGE]
reside. If the [SPGE] serves only the
residents of a city, the notice shall be
provided to the governing body of that city.
(b) The report required by paragraph (a) of
this subsection shall be for informational
purposes only, and the governing body shall
not have the authority to adjust, amend, or
veto the fee or tax, provided that any other
provision of the [KRS] that provides greater
authority for the governing body of a city or
county over taxes, fees, or rates imposed by
a [SPGE] shall continue to apply to those
taxes, fees, or rates.
The circuit court concluded that neither KRS 65A.100 nor any other
statute required the Extension District to obtain approval from the Oldham County
Fiscal Court prior to levying the ad valorem tax. The circuit court also concluded
the Extension District fully complied with the mandates of KRS 65A.100 and the
tax was legally authorized by the statute. As noted by the circuit court, KRS
65A.100 was repealed and replaced by KRS 65A.110 on January 1, 2021. The
new statute instructs the establishing body of a SPGE (here, the Oldham County
Fiscal Court) to approve or disapprove the proposed tax, which, moving forward,
conforms to Carter’s position in the instant action.
The circuit court rejected Carter’s argument that KRS 67.083(3)(q)
“provides greater authority for the governing body of a city or county over taxes,
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fees, or rates imposed by a [SPGE]” pursuant to KRS 65A.100(2)(b).3 We agree.
Nothing in KRS 67.083 requires the tax levied by the Extension District to be
adopted or approved through the Oldham County Fiscal Court. It provides only
that the fiscal court may levy taxes in performance of certain public functions.
KRS 67.083(3).
Secondly, the circuit court also rejected Carter’s reliance on an
opinion from the Trigg Circuit Court entered August 25, 1989, which found that an
extension district was not authorized to levy a tax. An opinion from a circuit court
generally has little to no precedential value. Bell v. Commonwealth, Cabinet for
Health and Family Services, Dep’t for Cmty. Based Services, 423 S.W.3d 742, 751
(Ky. 2014). Moreover, the Trigg Circuit Court’s decision was entered
3
The applicable portion of KRS 67.083 argued by Carter reads:
(3) The fiscal court shall have the power to carry out governmental
functions necessary for the operation of the county. Except as
otherwise provided by statute or the Kentucky Constitution, the
fiscal court of any county may enact ordinances, issue regulations,
levy taxes, issue bonds, appropriate funds, and employ personnel
in performance of the following public functions:
...
(q) Cooperation with other units of government and
private agencies for the provision of public services,
including, but not limited to, training, educational
services, and cooperative extension service
programs[.]
(Emphasis added.)
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approximately twenty-four years before the Kentucky legislature created KRS
Chapter 65A. The Oldham Circuit Court’s rejection of an opinion from another
circuit court was not in error.
In contrast, the circuit court did rely on an opinion of the Kentucky
Attorney General, Cecil Watkins, OAG 18-005, 2018 WL 1028898 (Ky. OAG Feb.
15, 2018). Although the Attorney General’s opinion did not examine KRS
65A.100, it nevertheless reasoned that KRS Chapter 164 also authorized a
cooperative extension service district to levy a tax without approval from a fiscal
court. “This Court may give great weight to the reasoning and opinion expressed
in Attorney General’s opinions.” Woodward, Hobson & Fulton, L.L.P. v. Revenue
Cabinet, 69 S.W.3d 476, 480 (Ky. App. 2002) (internal quotation marks and
citation omitted). Accordingly, the circuit court did not err in looking to the
opinion of the Attorney General for guidance.
For the reasons stated herein, we affirm the Oldham Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES OLDHAM
COUNTY EXTENSION DISTRICT
Lee E. Sitlinger AND OLDHAM COUNTY
Louisville, Kentucky EXTENSION BOARD:
Jon Salomon
Kristin E. McCall
Louisville, Kentucky
BRIEF FOR APPELLEES OLDHAM
COUNTY FISCAL COURT AND
JUDGE EXECUTIVE DAVID
VOEGELE:
Carol S. Petitt
Adam E. Fuller
Pewee Valley, Kentucky
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John K. Carter v. Oldham County Extension District
Combined Opinion