Kentucky Cases January 17, 2020: Noble v. Bush

Case Description

NOT TO BE PUBLISHED

APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE FRANK A. FLETCHER, JUDGE
ACTION NO. 19-CI-00044

OPINION
AFFIRMING

BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND L. THOMPSON, JUDGES.

Page 2

CLAYTON, CHIEF JUDGE: Jeffrey Noble, in his official capacity as Breathitt County Judge Executive, appeals the order from the Breathitt Circuit Court denying his petition for a writ of mandamus to order the members of the Breathitt County Fiscal Court to appoint a county road engineer or supervisor. After review, we affirm.

On January 7, 2019, Judge Noble was sworn in as the newly elected judge executive of Breathitt County. The appellees, Donnie Bush, Ray Moore, Ellis Tincher, and Roy Darrell Herald, having served on the Breathitt County Fiscal Court as magistrates since 2015, were again sworn in as such on the same day. (The appellees will hereinafter collectively be referred to as "magistrates.")

Soon thereafter, Judge Noble began his efforts to appoint Johnny Stacey as the Breathitt County Road Engineer under KRS 179.020(1). However, he was unable to secure the consent of a majority of the magistrates necessary for the appointment. After several failed attempts, Judge Noble endeavored to appoint Stacey as the Breathitt County Road Supervisor pursuant to KRS 179.020(2). Again, he could not garner the required consent.

Page 3

Without offering another appointee, Judge Noble filed a petition for a writ of mandamus in the Breathitt Circuit Court. Therein he sought an order requiring the fiscal court "to offer its consent to a qualified nominee of the Breathitt County Judge Executive to the office of County Road Supervisor of Breathitt County" pursuant to KRS 179.020. The court set the petition for a hearing and after hearing oral arguments entered an order denying Judge Noble's petition. This appeal followed.

A writ of mandamus is an extraordinary remedy compelling the performance of a ministerial act or mandatory duty when there is a "clear legal right or no adequate remedy at law." County of Harlan v . Appalachian Regional Healthcare , Inc ., 85 S.W.3d 607, 613 (Ky. 2002). The denial of a petition for a writ of mandamus is reviewed on appeal for an abuse of discretion. Owens v . Williams , 955 S.W.2d 196, 197 (Ky. App. 1997). To determine if the circuit court abused its discretion we must consider whether the decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Colston

Page 4

Investment Co . v . Home Supply Co ., 74 S.W.3d 759, 765 (Ky. App. 2001) (quoting Goodyear Tire & Rubber Co . v . Thompson , 11 S.W.3d 575, 581 (Ky. 2000)).

The issue before us is whether the circuit court erred in denying Judge Noble's petition for a writ of mandamus. In his brief, Judge Noble raised three main points of error: 1) the appointment of a county road supervisor is a ministerial duty of the fiscal court; therefore, the circuit court should have granted the petition for a writ of mandamus; 2) the circuit court incorrectly relied upon KRS 67.710, the duties and powers of the judge executive, in issuing its order; and 3) the county has suffered and will continue to suffer irreparable harm if the petition is not granted. We will address each of these issues in turn.

First, we look at whether KRS 179.020(2) imposes a ministerial duty upon the fiscal court to appoint a county road supervisor. The statute provides,

[i]f the fiscal court does not provide for a county road engineer, the duties of the county road engineer . . . shall be performed by a county road supervisor, who shall be

Page 5

employed by the county judge/executive with the consent of the fiscal court . . . .

KRS 179.020(2). In considering an early version of the current statute, the Court unequivocally determined the statute gives members of the fiscal court discretionary authority to either give or withhold consent. Commonwealth v . McCrone , 153 Ky. 296, 155 S.W. 369, 370 (1913). Mandamus is not proper when the statute commands the exercise of discretion. County of Harlan , 85 S.W.3d at 613.

The court has recognized if a fiscal court wholly refuses to act or its decision is based upon whimsical or arbitrary reasons, then the lower court may issue a writ of mandamus. McCrone , 155 S.W. at 370. First, there is nothing in the record before us to indicate the magistrates failed to act. Judge Noble offered a single appointee for county road supervisor, Stacey. The record shows the magistrates considered Stacey and did not consent to his appointment. The withholding of support for a particular candidate cannot be construed as failure to act.

[The magistrates] cannot, without depriving them of the discretion given them by the statute, by mandamus be compelled to vote for any particular person who may be appointed by the county judge. The county judge can, however, make another appointment, or others successively, until a person of his selection is named for the office to whose appointment a majority of the members of the fiscal court will consent.

Page 6

Id . at 371.

Second, the only evidence Judge Noble submitted suggesting the magistrates' decision to withhold their consent was whimsical or arbitrary is the fact that Stacey was a qualified appointee under KRS 179.020(2). There are several legitimate reasons the magistrates could have chosen to withhold their consent from a statutorily qualified appointee. The magistrates' decision is not whimsical or arbitrary merely because they reject a qualified candidate.

Next, Judge Noble argues the circuit court's decision is improper because it "incorrectly applied the general personnel provisions of KRS 67.710 [the powers and duties of the county judge executive] to the position of County Road Supervisor where KRS 179.020 controls." Judge Noble suggests these statutes are mutually exclusive. More specifically, he states that KRS 67.710 only pertains to county personnel and individuals appointed to boards, commissions, and other administrative positions. He attempts to argue the county engineer is "an Office of the County rather than mere County personnel" because KRS 179.020 outlines an appointment procedure, a term of service, and a statutory removal procedure. Judge Noble has not cited to any case law in support of his theory, and we disagree with his interpretation of the statutes.

When construing statutes, "[w]e presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have

Page 7

meaning, and for it to harmonize with related statutes." Shawnee Telecom Resources , Inc . v . Brown , 354 S.W.3d 542, 551 (Ky. 2011). KRS 67.710 pertains generally to the powers and duties of the county judge executive. Included in the statute is an outline of the county judge executive's duty to make various appointments with the consent of the fiscal court. KRS 67.710(7) and (8). The statute even contains a procedure for the county judge executive to follow in making his appointments. KRS 67.710(9). KRS 179.020 provides for a county road engineer or supervisor, which is to be appointed by the county judge executive with the consent of the fiscal court. There is nothing in the plain language of either statute placing them at odds and the result would be the same regardless of which statute is applied. Therefore, the circuit court did not abuse its discretion.

Finally, we need not consider Judge Noble's argument the county has suffered and will continue to suffer irreparable harm if the petition is not granted because the issue was not raised in the circuit court. "An issue cannot be raised for the first time on appeal; the trial court must be given an opportunity to rule on a claim before it can be addressed by an appellate court. As is often said, an appellant will not be permitted to feed one can of worms to the trial judge and another to the appellate court." Brooks v . Byrd , 487 S.W.3d 913, 919 (Ky. App. 2016) (internal quotation marks and citation omitted).

Page 8

For the foregoing reasons, we affirm the Breathitt Circuit Court's order denying Judge Noble's petition for a writ of mandamus.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Derek Jorge Campbell
Lexington, Kentucky

BRIEF FOR APPELLEES BUSH,
MOORE, AND TINCHER:

Ned Pillersdorf
Prestonburg, Kentucky

NO BRIEF FILED FOR APPELLEE
HERALD