Tax Recall Petition Committee, Acting by and Through Its Members And Bobbie Holsclaw, in Her Official Capacity as Jefferson County Clerk v. Jefferson County Board of Education And Jefferson County Teachers Association

RENDERED: JUNE 16, 2022
TO BE PUBLISHED

Supreme Court of Kentucky
2020-SC-0569-TG
2020-SC-0571-TG

FRED DEVON FRIEDMANN, INDIVIDUALLY APPELLANTS
AND AS A MEMBER OF THE TAX RECALL
PETITION COMMITTEE; CAROLE
BRETSCHNEIDER, INDIVIDUALLY
AND AS A MEMBER OF THE TAX RECALL
PETITION COMMITTEE; LINDA LENOE
HARRETT, INDIVIDUALLY
AND AS A MEMBER OF THE TAX RECALL
PETITION COMMITTEE;
CHERI NELSON MISNER, INDIVIDUALLY
AND AS A MEMBER OF THE TAX RECALL
PETITION COMMITTEE; MICHAEL
JEROME SCHNEIDER, INDIVIDUALLY
AND AS A MEMBER OF THE TAX RECALL
PETITION COMMITTEE

AND

HONORABLE BOBBIE HOLSCLAW, IN HER
OFFICIAL CAPACITY AS JEFFERSON
COUNTY CLERK

ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE BRIAN C. EDWARDS, JUDGE
NO. 20-CI-004856

JEFFERSON COUNTY BOARD OF APPELLEES
EDUCATION

AND

JEFFERSON COUNTY TEACHERS
ASSOCIATION
 OPINION OF THE COURT BY JUSTICE CONLEY

AFFIRMING

This case is before the Court on appeal from the Jefferson Circuit Court’s

ruling prohibiting a vote tabulation regarding a school board tax recall based

upon alleged violations of KRS1 132.017 and KRS Chapter 369. Additionally,

the circuit court dismissed the counterclaim against Appellee, Jefferson County

Board of Education (JCBE), concluding the JCBE did not violate KRS 133.185

or KRS 160.470(7) by providing notice of the impending tax increase. For the

following reasons, the circuit court’s judgment is affirmed.

I. Facts and Procedural Posture

In 2018, the JCBE adopted a corrective action plan at the behest of the

Kentucky Board of Education, arising from a determination by the latter that

Jefferson County schools were inadequately funded. The Board of Education

threatened a “takeover” of the schools if the JCBE did not address the lack of

funding. A task force was commissioned to make recommendations and,

following at least one of those recommendations, the JCBE adopted a tax

increase from 73 to 80.6 cents per $100 of assessed real and personal

property. This tax was adopted on May 21, 2020.

Pursuant to statute though, this tax could not immediately go into effect.

Instead, since a portion of the tax increase would exceed “more than four

percent (4%) over the amount of revenue produced by the compensating tax

1 Kentucky Revised Statutes.
2
rate[,]” that excess portion was subject to a recall petition.2 A group of citizens

did undertake to challenge the excess portion, forming the Tax Recall Petition

Committee (Recall Committee). If the Recall Committee could attain a threshold

number of signatures on a petition challenging the excess portion of the tax,3

then a question to revoke the excess portion could be placed on the ballot and

presented to the relevant portion of the voting public.4 The Recall Committee

filed an affidavit with the Jefferson County Clerk, Bobbie Holsclaw (County

Clerk), on May 22, 2020. Its official members included five residents of the

taxing jurisdictions of Jefferson County Public Schools. Its driving force though

was Theresa Camoriano, who was listed as attorney for the Recall Committee,

but who was not a resident of any affected tax jurisdiction and not a committee

member.5

Camoriano described herself as the instigator and spearhead of the

Recall Committee, testifying by deposition that “things had to be done, and I

was instrumental in either doing them or helping get them done, [or] finding

people to do them, that sort of thing.” She was also the face of the Recall

2 KRS 160.470(8)(a). The compensating tax rate is defined as

that rate which, rounded to the next higher one-tenth of one cent
($0.001) per one hundred dollars ($100) of assessed value and applied to
the current year's assessment of the property subject to taxation by a
taxing district, excluding new property and personal property, produces
an amount of revenue approximately equal to that produced in the
preceding year from real property.

KRS 132.010(6).
3 KRS 132.017(2)(d)(6)(a)
4 KRS 132.017(2)(g).
5 She did testify to owning a rental company that owns property in an affected

district.
3
Committee, conducting most of its public relations either through social media,

holding a press conference, answering questions from journalists, or doing

radio interviews. It was she who decided ultimately to submit the petition and

its signatures to the County Clerk in a physical, paper format rather than

electronically, despite the vast majority of signatures collected being submitted

electronically. Finally, she and her daughters took upon themselves the task of

sorting through the signatures to discover duplicates.

The decision to use electronic signatures resulted in the Recall

Committee creating a petition page on its website, NoJCPStaxhike.com.

Michael Schneider, a committee member, was tasked with creating the website

though he did not create the petition page.6 The website was set up using a

company called HostGator for server space. There were only two basic security

features, CodeGuard and SSH. CodeGuard provided monitoring services to

alert Schneider should a third-party attempt to hack the website on the

administrative side. SSH, or secure shell home page, encrypted the

communication between users and the website. In other words, whenever a

person visited the website and entered their information on the petition, SSH

encrypted that communication as it was being conveyed across the internet to

the website.

6 Schneider, along with Camoriano, was designated by the Recall Committee as

its authorized representative to testify on its behalf, so although his immediate
responsibility was the website, his deposition testimony spanned numerous other
issues.
4
 The petition page was created by Sarah Durand. Per Schneider, Durand

was directed by Camoriano as to what information should be required for

signing the petition. This included name, birth date, address, and email

address. Schneider stated a decision was made between he and Camoriano to

not request social security numbers because of a belief people would be

reluctant to give that information. Finally, Schneider testified that he would

daily aggregate the petition signatures from the website and send them to

Camoriano for evaluation in an Excel spreadsheet. He conceded there were no

procedures given to Camoriano by the Recall Committee to evaluate signatures,

that Carmoriano was just expected to use good judgment, and that Camoriano

could edit the Excel spreadsheets after he sent them to her.

Per Camoriano, her evaluation of signatures was mainly to eliminate

duplicates. The elimination process amounted to organizing spreadsheets by

name and eliminating duplicates of names, addresses and birth dates. She

testified to eliminating at least 7,000 duplicates this way. Additionally, she

testified she and her daughters went through each signature that lacked a

precinct number in order to provide a precinct number for that signature.7

Using LOJIC8 the three would alter street addresses in order to correlate an

7 KRS 132.017(2)(d)(5) requires “[e]ach electronic and nonelectronic petition
signature shall be followed by the printed name, street address, Social Security
number, or birth month, and the name and number of the designated voting precinct
of the person signing[.]”
8 LOJIC is an information consortium serving Louisville and Jefferson County to

maintain a geographic information system.
5
address with its precinct number, e.g., abbreviating “street” to “st” or “drive” to

“dr”.

Camoriano also testified to accessing the state Republican party

database to verify signatures. She conceded this database contained all the

information required to be filled in by a signatory on the petition. Using this

database, she testified to verifying signatures by street addresses. Although

adamant she could not recall doing so, she did concede to a possibility of her

altering addresses if a name and birth date were otherwise matched. She also

conceded to altering at least 3,000 birth dates but insisting these were merely

formatting edits and not substantive alterations. Nonetheless, she conceded to

making “fewer than a couple hundred” entries where a birth date had been

omitted by a purported signatory and, after checking with the Republican

database, filling in their birth date. Indeed, Camoriano stated that she intended

“to make sure that a person who signed wanted their signature to count . . . .”

and upon that basis flatly admitted to making substantive alterations by filling

in omitted information:

Well, we – well, we would have – we would have made sure that we
had more than one data point. Like if I only had a name, no way
was I going to add everything else, you know, I wouldn’t have taken
a bare name and added the rest of the data. I would have had to
have had a number of pieces of information for that person to add
any data for that person, and it would have had to match up with
the – with the database that I saw, you know, with the entry that I
saw.

Camoriano then testified that no purported signatory had ever given her

permission to alter or correct their signature nor did she ever seek such

permission from any individual. Instead, she presumed she had an implied
6
permission. She stated the Recall Committee never specifically authorized her

alterations or corrections—instead referring to an amorphous expectation of

good judgment—and that she never conducted any legal research as to whether

she had legal authority to make these alterations or signatures.

As for handwritten signatures, Camoriano admitted she would add

“second addresses or something that we found . . .” but insisted she never

deleted or “change[d] what the person had put on the – on their record.”

Immediately after stating this, however, she conceded an omitted birth date

may have been added on some signatures. Camoriano then admitted to

inserting surrogate signatures electronically, where people had contacted her

requesting their names be put on the petition, and sometimes having to add

information that they failed to give her. She again insisted these were only a

handful and provided documentation of the requests. Finally, she conceded the

County Clerk would have had no way to determine which signatures were

altered by her and her daughters due to her submitting the electronic

signatures in a paper format and refusing to hand over the underlying

electronic data despite a request to do so by the County Clerk.

The County Clerk had requested the electronic data because the Recall

Committee had, on July 10, 2020, submitted 40,320 signatures for certification

on 1,149 pages of paper. The electronic data would have undoubtedly

simplified review. Forced to undergo a physical evaluation of these signatures,

the County Clerk assigned twenty of her deputies to review apportioned

sections. One deputy, Maryellen Allen, was the “Election Center Co-Director”

7
and she testified there were no uniform, written standards for the review.

Instead, the clerks were instructed to eliminate duplicate signatures and

signatures of persons not registered in an affected taxing district on the day of

the evaluation, referencing the County Clerk’s own registration records or the

statewide Voter Registration Database. Additionally, the County Clerk did not

eliminate signatures that contained abbreviated names or nicknames,

misspellings of names or addresses, or so-called errors in birth dates if the day

or month was one off or inverted. The County Clerk relied on KRS 116.025(4)

and KRS 116.085(3), as well as the case of Petition Committee v. Board of

Education of Johnson County,9 for the belief that she had discretion in

determining which signatures were compliant with the recall petition statute

and that substantial compliance was all that was necessary for a signature to

be certified as valid. All parties agree the threshold for proceeding to a regular

ballot was 35,517 signatures. On August 10, 2020, the County Clerk certified

38,507 signatures as valid; 36,131 containing no errors, 2,376 containing at

least one error, and 1,813 invalid signatures.

The JCBE then filed suit in Jefferson Circuit Court, seeking review of the

county clerk’s certification pursuant to KRS 132.017(2)(i). The Recall

Committee intervened and brought a counterclaim against the JCBE for failure

to comply with KRS 133.185 and the notice requirements of KRS 160.470(7)(b).

This was the first issue addressed by the lower court upon the Recall

Committee’s motion for summary judgment. Prior to the May 21, 2020, vote to

9 509 S.W.3d 58 (Ky. App. 2016).
8
approve the tax increase, two notices had been published in the Louisville

Courier-Journal by the JCBE to announce the proposed tax increase as well as

other information. The Appellants argue KRS 133.185 requires the Department

of Revenue to certify county assessments thus, the JCBE could not publish the

compensating general tax rate, revenue expected from it, or revenue expected

from new personal and real property—all required by KRS 160.470(7)(b)—prior

to certification. This certification did not occur until August 25, 2020. The

Appellants further argue that the JCBE erroneously included the wrong tax

rate for the 2019 year, thereby not complying with the statute.

The circuit court believed KRS 133.185 and the deadline requirements

contained in KRS 132.017 created a practical conflict. Since waiting for the

Department of Revenue for certification under the former statute would have

precluded the recall vote from proceeding to a regular election ballot in 2020

under the latter statute, the task of applying the statutes harmoniously

demanded a determination as to whether the JCBE substantially complied with

KRS 133.185. The court found substantial compliance and denied the motion

for summary judgment. Later, upon the same basis, the circuit court dismissed

the counterclaim.

Finally, a bench trial was held between October 20-23, 2020, regarding

the county clerk’s certification. The JCBE retained James Sprigler as an expert

to conduct an analysis of the signatures certified by the County Clerk. This

included the 36,131 certified as without error, as well as a limited review of the

2,376 certified as valid but with error. Sprigler testified of the former category:

9
843 were duplicates, 123 were signatures of a person with no record of being

registered in a relevant taxing district, 1,035 had addresses listed on the

petition that did not match their address in the County Clerk’s registration

records, 692 had an address or birth date that did not match the information

in the County Clerk’s registration records, 859 of the electronic signatures were

altered after being submitted to the website but before being included on the

petition turned over to the County Clerk, and 75 were handwritten signatures

altered after the fact.10 We must note the failure of the Recall Committee to

turn over the original, unaltered electronic data to the County Clerk for

purposes of certification is unjustifiable.

All told, had each of these signatures been excluded by the county clerk,

only 33,196 signatures would have been valid. Of the 2,376 signatures deemed

valid but with an error, Sprigler testified that at least 505 had been certified

contrary to the county clerk’s own professed standards because the birth date

listed either did not merely have the month and day transposed or the birth

date was off by more than a single digit.11

10 Had the county clerk had the data she could have hired an expert to develop
a program and identify these duplicates and erroneous entries in a matter of hours,
days at most, with one person rather than the month and twenty deputy clerks it took
to do a physical review. When recall petitions utilize electronic signatures that
electronic data must be given to county clerks for purposes of certification.
11 The Appellants argue vigorously against this testimony about the 2,376 valid

but with error signatures. We have reviewed the trial record and Mr. Sprigler did
testify to this effect and the spreadsheet associated with the testimony was admitted
into evidence without objection. Concededly, the trial court did not cite Mr. Sprigler’s
testimony when it struck those signatures but that is immaterial given our disposition
on the matter below.
10
 The circuit court approved Sprigler as an expert witness and concluded

“[n]o evidence was presented to indicate that either Mr. Sprigler’s software

program or the Clerk’s voter registration records summary was flawed or

inaccurate. The Court thus finds no reason to question the veracity of the data

relied upon by Mr. Sprigler in furtherance of his review.” Concluding as a

matter of law that by listing certain signature requirements in KRS 132.017,

the General Assembly expected those requirements to be met, the circuit court

struck all 2,376 signatures certified as valid but with errors. Of the remaining,

the circuit court struck 843 as duplicates; 123 for having no record of

registration; and 934 for having been altered after being submitted to the

Recall Committee but prior to being submitted to the county clerk.

The court also made clear that it believed certification was “impossible”

even under a substantial compliance standard, noting particularly

deficiencies involving alleged misconduct and unauthorized
altering of signature entries call into legitimate question the
veracity of the entire petition. However, perhaps most concerning is
the clear attempt of The [Recall] Committee to submit multiple
entries for individual citizens. These are not insignificant concerns
that can be ignored, and they should not have been.

Thus, the court then dismissed the Recall Committee’s counterclaim and

ordered “no further action” regarding the regular ballot votes for the tax recall.

Because the County Clerk had certified the petition, the question was put on

the regular ballot in anticipation of the certification being upheld. As a

consequence, absentee and early voting had already been conducted to a

limited extent and voters would see the question on the ballot on election day.

The circuit court ordered that all votes on the matter should be retained but
11
not tabulated. The Recall Committee and County Clerk then appealed. We

granted a motion to transfer the appeal from the Court of Appeals to address

the novel issue of the Uniform Electronic Transactions Act12 (UETA) in the

context of elections and ballot access, as well as to clarify the statutory

standards involved.

We now address the merits of the appeal.

II. Standard of Review

Interpretation of a statute is a question of law thus, reviewed de novo.13

When multiple statutes are at issue, they “are considered to be in pari materia

when they relate to the same matter with an apparent or actual conflict in

some or all of their provisions.”14 “The doctrine is especially applicable to acts

passed at the same session of the Legislature, and it is frequently said in the

opinions that the acts should be construed together, so as to harmonize and

effectuate the purpose of the Legislature in the enactment of both.”15 Where the

plain or literal language of a statute leads to a ridiculous or absurd result, we

are free to ignore it.16 “[W]hen the intention of the Legislature is obvious, but

the language used, if given its literal meaning, will defeat the intention, the real

purpose of the Legislature should be allowed to prevail over the literal import of

the words.”17

12 KRS 369.101 – 369.120
13 Daviess Cnty. Pub. Libr. Taxing Dist. v. Boswell, 185 S.W.3d 651, 656 (Ky.
App. 2005).
14 Dunlap v. Littell, 255 S.W. 280, 282 (Ky. 1923).
15 Id.
16 Revenue Cabinet v. O’Daniel, 153 S.W.3d 815, 819 (Ky. 2005).
17 Hopkins v. Dickens, 222 S.W. 101, 104 (Ky. 1920).

12
 III. Analysis
A. The UETA, Tax Recall Petition Statute, and Applicable Case Law
The digitalization of social life in recent years presents a daunting

challenge to society. Its effects on the law may be comparatively slow but are

otherwise limited seemingly only by lack of imagination. Legislatures, courts,

and citizens themselves must, in navigating the digital frontier, strive to avoid

the outcome whereby individual rights, possessed because of our humanity

and membership in political society, become the rights only of technologically-

savvy individuals. Equally important is to prevent those who possess the

means and ability to do so, from manipulating the laws via technology for their

benefit, however sincere or noble, to the detriment of the regular and equal

enforcement of the law.

One of the early steps taken by the General Assembly to address

developments presented by the advent of digital technology was the Uniform

Electronic Transactions Act.18 It applies “to any electronic record or electronic

signature created, generated, sent, communicated, received, or stored on or

after August 1, 2000.”19 It formalized the legal status of electronic signatures

stating, “An electronic record or electronic signature is attributable to a person

if it was the act of the person.”20 Courts are commanded to construe the UETA

in a manner that would “facilitate electronic transactions consistent with other

applicable law[.]”21 Moreover, tax recall petitions are commanded to conform to

18 KRS 369.101 – 369.120
19 KRS 369.104.
20 KRS 369.109.
21 KRS 369.106(1).
13
the UETA.22 Finally, if another applicable law requires a signature to be

verified, “the requirement is satisfied if the electronic signature of the person

authorized to perform those acts [verification], together with all other

information required to be included by other applicable law, is attached to or

logically associated with the signature of record.”23 Tax recall petition

signatures are unquestionably required to be verified to ensure they belong to

“registered and qualified voters residing in the affected jurisdiction . . . .”24 As

such, the electronic signatures were required to be accompanied by the

statutorily required information found in KRS 132.017(2)(d)(5), to wit: printed

name, street address, social security number or birth date, and the name and

number of the voting precinct the signatory resides in.

Significantly, KRS 369.109(1) also provides the following:

The act of the person may be shown in any manner, including a
showing of the efficacy of any security procedure applied to
determine the person to which the electronic record or electronic
signature was attributable.25

KRS 369.102 defines “security procedure” as
a procedure employed for the purpose of verifying that an
electronic signature, record, or performance is that of a specific
person or for detecting changes or errors in the information in an
electronic record. The term includes a procedure that requires the
use of algorithms or other codes, identifying words or numbers,
encryption or callback or other acknowledgment procedures.26

22 KRS 132.017(2)(d)(4).
23 KRS 369.111.
24 KRS 132.017(2)(d)(6)(a).
25 KRS 369.109(1).
26 KRS 369.102(14).
14
The commentary to this provision of the UETA makes clear the importance of

security procedures in establishing attribution of an electronic signature:

The inclusion of the specific reference to security procedures as a
means of proving attribution is salutary because of the unique
importance of security procedures in the electronic environment.
In certain processes, a technical and technological security
procedure may be the best way to convince a trier of fact that a
particular electronic record or signature was that of a particular
person. In certain circumstances, the use of a security procedure
to establish that the record and related signature came from the
person’s business might be necessary to overcome a claim that a
hacker intervened. The reference to security procedure is not
intended to suggest that other forms of proof of attribution should
be accorded less persuasive effect. It is also important to recall that
the particular strength of a given procedure does not affect the
procedure’s status as a security procedure, but only affects the
weight to be accorded the evidence of the security procedure as
tending to establish attribution.27

In other words, the use of a security procedure in executing an electronic

signature is important because it helps convince a trier of fact that the person

signing an electronic document is who they say they are. While KRS 369.109

does not require that a security procedure be used in order for attribution to be

established, the specific reference to a security procedure is meaningful.

We address as a matter of first impression what the UETA’s requirement

that an “electronic signature is attributable to a person if it was the act of the

person[,]” means in conjunction with KRS 132.017. But we are convinced “the

statute is sufficiently explicit and unambiguous to require its literal

27 Uniform Electronic Transaction Act § 9(a) cmt. at 4 (Nat. Conf. of Comm’rs of

Unif. State Laws 1999).

15
application.”28 An electronic signature is not legally valid when it is not made

by the action of the person the signature purports to represent. This must be

read in tandem with KRS 132.017(f) which requires county clerks to verify and

certify signatures. But electronic signatures are readily subject to fraud, and it

is common enough for websites such as retailers, social media, or

governments, to ensure a user interacting with their website, making a

purchase, or giving an electronic signature is in fact a human who is who he

says he is. Here, however, there was no such security measure at all.

There was no requirement that each person electronically signing the

petition respond to a callback or acknowledgement email or text message and

there was no proof that any other verification procedure was used. Instead, a

person signing the electronic petition need only type a name and address,

social security number or birth month, and the name and number of their

voting precinct. In an electronic environment where generic information such

as this is discoverable, such information, alone, is insufficient to establish

attribution. Based on the proof, there is simply no way to determine the

electronic signatures are attributable to the person they purport to be.

The absence of proof that any security procedure was employed in the

process of executing electronic signatures on the recall petition rendered each

electronic petition signature invalid under KRS 369.109(1). Because the

petition relied on electronic signatures to achieve the threshold number of

signatures to place the tax levy before the voters, this reason alone is enough to

28 Barnard v. Stone, 933 S.W.2d 394, 396 (Ky. 1996).
16
declare the petition insufficient as a matter of law. Therefore, the tax levy

should not have been certified to be placed before the voters for approval.

B. Notice of the Tax Levy was Sufficient
The second issue in this case is the Circuit Court’s dismissal of the

counterclaim against Appellees for failure to comply with statutory notice

requirements. In general, strict compliance with statutory notice requirements

is the standard and “where the statute required notice of the steps in

proceedings for a tax levy, the publication was jurisdictional.”29 The notice

requirements of KRS 160.470(7)(b) are in pari materia with KRS 132.017.

When “a district board of education propos[es] to levy a general tax rate

within the limits of subsection (1) of this section which exceed the

compensating tax rate defined in KRS 132.010. . .” it is required to hold a

hearing and give notice.30 The notice must be formatted a particular way,

published in the newspaper of widest circulation in the county,31 and contain

several pieces of information, inter alia, the general tax rate and revenue of the

preceding year;32 the general tax rate and expected revenue of the current

year;33 the compensating general tax rate and expected revenue;34 and

expected revenue from new property and personal property.35 The Appellants

29 Turrell v. Bd. of Ed. of Marshall Cnty., 441 S.W.2d 767, 769 (Ky. 1969).
30 KRS 160.470(7)(a).
31 KRS 160.470(7)(b).
32 KRS 160.470(7)(b)(1).
33 KRS 160.470(7)(b)(2).
34 KRS 160.470(7)(b)(3).
35 KRS 160.470(7)(b)(4).
17
have argued KRS 133.18536 is also applicable. That statute, however, is of

general applicability whereas KRS 160.470 is specific to district school boards

and how they may levy taxes; the specific controls.37

The trial court concluded strict compliance with the statutes was impossible

because KRS 132.017(2)(a)(2) imposes a 50-day period from the time a tax is

passed to when it becomes effective in order that a tax recall initiative may

have adequate time to be organized and effected.38 Additionally, if a tax recall is

successful in its petition requirements, an election on the tax increase is to be

held on the “next regular election[.]”39 In this case, that was November 3, 2020.

Although our statutory analysis differs from the circuit court’s, we reach a

similar conclusion that between KRS 160.470(7)(b) and KRS 132.017, an

impossible condition is imposed precluding application of some notice

requirements.

The Appellants admit in their own briefing that the JCBE’s notices in

May of 2020 could not contain some of the statutorily mandated information

under KRS 160.470(7)(b) because it simply was not available at that time. They

admit the current year assessment had not been completed and that the

Jefferson County PVA would not even begin its inspection period for another

36 “Except as provided in KRS 132.487, no tax rate for any taxing district
imposing a levy upon the county assessment shall be determined before the
assessment is certified by the Department of Revenue to the county clerk as provided
in KRS 133.180.”
37 Abel v. Austin, 411 S.W.3d 728, 738 (Ky. 2013). The trial court found KRS

133.185 to be applicable and then considered whether the JCBE was in substantial
compliance with it, alongside KRS 132.017. That was incorrect per our analysis.
38 KRS 132.017(2)(b).
39 KRS 132.017(3)(a).

18
four to five weeks. They admit personal property tax returns were not due for

another five to six weeks. And they admit the Department of Revenue would

not certify the county assessment tax roll until August 25, 2020. Thus, from

these facts we see the General Assembly has set out notice requirements for

certain tax levy increases, as well as providing a statutory timeline and

deadline to challenge such increases in time for the next subsequent regular

election; yet, in order to ensure the latter condition, the JCBE was compelled to

publish notices before certain information required to be published in them

was even available. The Appellants believe that since this information was not

available in May of 2020, the JCBE should have waited for availability. We do

not agree.

KRS 132.017(3)(a) mandates “[i]f an election is necessary under the

provisions of subsection (2) of this section, the local governmental entity shall

cause to be submitted to the voters of the district at the next regular election the

question as to whether the property tax rate shall be levied.” (Emphasis added).

The JCBE was forced to choose between complying with the deadlines to have

the recall issue on the next regular election ballot pursuant to KRS

132.017(2)(a), (2)(b), and (3)(a) and complying with the notice requirements

found in KRS 160.470(7)(b). The General Assembly has failed to account for the

fact that the information necessary to comply with the latter is not always

available in time to comply with the former, inadvertently creating a classic

Hobson’s choice—comply strictly with the notice requirements but then

potentially be forced to wait years before a final determination on a tax increase

19
is made by the voters. The negative effect this would have on budgeting is

obvious and we cannot credit the assumption that the General Assembly would

be aware of such a significant issue and just ignore it.

The next regular election was to be November 3, 2020, and the JCBE

took those steps possible so the vote could be placed on that ballot if

necessary. We do not believe the JCBE should be punished for failing to

publish information that was unavailable in time for it to otherwise exercise its

statutory rights under KRS 132.017. This application is all the more preferable

when, as here, the defect in the notice requirements was not ultimately

attributable to the Appellees and resulted in no substantive prejudice to the

Appellants.

Because it was impossible for the JCBE to include the general tax rate of

the previous year required by KRS 160.470(7)(b), the failure to include it is not

fatally defective. The statutes simply do not provide for the circumstance of

information required to be published in the notice being unavailable in time for

a tax recall to proceed to a regular election ballot in the same year the tax is

passed. Therefore, the JCBE’s good faith effort to provide the latest available

information but mistakenly identifying it as the rate from 2019 rather than

2018, cannot amount to a statutory violation. The circuit court’s dismissal of

the counterclaim is affirmed.

IV. Conclusion
We are mindful that some might be concerned this decision would have

the effect of preventing the people from exercising their right to vote. But that

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right to vote has been granted by the General Assembly with strict conditions

as to when it may be exercised. In cases such as this, the public’s right to vote

on a tax recall is rendered null by the inadequacy of the recall petition

occasioned by the alterations and lack of required information. “That the

people are denied a direct and immediate vote on this matter results not from

what this court wishes or decrees, but from the restrictions enacted by the

legislature and from somebody's failure to comply with those restrictions.”40

We hold the total absence of any security measures to ensure an

electronic signature was in fact made by the purported signatory negates the

petition. Secondly, due to factors not controllable by the JCBE, it was not

possible for the JCBE to adhere to some of the notice requirements of KRS

160.470(7)(b) and remain consistent with KRS 132.017(3)(a)’s mandate that a

tax recall vote be placed on the next regular election ballot. The Jefferson

Circuit Court is affirmed.

All sitting. All concur.

40 Fiscal Ct. of Warren Co., 485 S.W.2d at 757 (Palmore, J., concurring).
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COUNSEL FOR APPELLANT,
BOBBIE HOLSCLAW, JEFFERSON COUNTY CLERK:

Laurence J. Zielke
Janice M. Theriot
Zielke Law Firm, PLLC

COUNSEL FOR APPELLANTS,
TAX RECALL PETITION COMMITTEE MEMBERS:

Patrick F. Graney
The Graney Law Office, PLLC

COUNSEL FOR APPELLEE,
JEFFERSON COUNTY BOARD OF EDUCATION:

Virginia Hamilton Snell
Byron E. Leet
C. Tyson Gorman
Thomas E. Travis
Wyatt, Tarrant & Combs, LLP

COUNSEL FOR APPELLEE,
JEFFERSON COUNTY TEACHERS ASSOCIATION:

David Tachau
Katherine Lacy Crosby
Kristin E. McCall
Tachau Meek PLC

Thomas J. Schulz
Schulz Messex Dermody, PLLC

Don C. Meade
Priddy, Cutler, Naake & Meade PLCC

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